text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY HILEMAN, Defendant-Appellant.
    Fifth District
    No. 5-88-0012
    Opinion filed June 19, 1989.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    H. Wesley Wilkins, State’s Attorney, of Jonesboro (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

The defendant, Gary Hileman, was convicted of leaving the scene of an accident (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 402) by the circuit court of Union County sitting without a jury. Defendant was sentenced to 90 days’ probation. As incidents of that probation, defendant was ordered to pay a $100 fine and restitution, which is to be determined by the probation department. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt and that the order of restitution is invalid.

At trial, Deborah Cunningham testified that at 10:30 p.m. on August 16, 1987, while driving a 1986 Ford Escort wagon on an unmarked blacktop road, she saw a rust-colored AMC Gremlin weaving on the road toward her from approximately 100 feet away. She pulled off of the road as far as she could and stopped, but the other car hit the left front fender of her car, then swerved away from her and kept going. She was stopped at the time of the accident. She heard a “loud hit and scrape” of the impact and felt “not a big jolt.” She opined that the Gremlin was traveling 55 miles per hour. She identified defendant, who lived down the road from her, as the driver of the Gremlin, because her car lights flashed on him as he weaved toward her. She could only state that defendant had a growth of beard and was not wearing a suit at the time of the accident. She could not remember if he wore a hat or the kind of shirt, or otherwise identify defendant’s clothing. The only other motor vehicle in the area was her father’s, who was some distance behind her. After the accident, her car door was difficult to open because a dent, which was caused by the accident, pinned the door shut. From photographs of her car, Ms. Cunningham showed the court the damage caused by the accident. Ms. Cunningham admitted that although she told the arresting officer that the car that hit her vehicle was either a Hornet or Gremlin, her written statement to police reflects that it was a Hornet.

Ms. Cunningham’s written statement was admitted into evidence. The statement stated, in part, that defendant was driving a rust-colored Hornet and that defendant “did not appear to realize he had hit [Ms. Cunningham].”

Sherman Mays, Ms. Cunningham’s father, testified that on August 16, 1987, he was travelling 300 yards behind her when she was involved in an accident. He did not see the accident but did see defendant, who almost ran Mays off the road. Defendant was driving a brown Hornet, and Mays saw defendant’s face when Mays’ lights flashed on him. He opined that he observed defendant, whom he previously knew, between 5 and 10 seconds. The Hornet was travelling between 30 and 40 miles per hour.

Scott Harvel, Union County deputy sheriff, testified that he investigated the accident involving Ms. Cunningham. At approximately midnight on August 16, 1987, he went to defendant’s residence. Defendant stated that he had not gone anywhere in the previous two or three hours. Harvel observed a brown AMC Gremlin, which had a dent to the driver’s door and to the rear panel. The dent started at the driver’s door and ended at the rear quarter panel. Mays observed fresh mud on the Gremlin but did not recall seeing paint which did not match the color of the Gremlin. After Harvel found the scrape, he started to question defendant about it, and defendant told him it was time to leave.

Defendant testified that on August 16, 1987, at approximately 10:30 p.m., he and his Gremlin were at home, and they had been at home since 11 a.m. that morning. Pictures of the Gremlin admitted into evidence showed no damage to the driver’s door or the rear left quarter panel, and defendant denied that he had any repair work done in that area since Ms. Cunningham’s accident. Defendant opined that Mays and Ms. Cunningham were not telling the truth, but he could give no reason why they would be untruthful.

In finding defendant guilty, the court stated:

“As to the testimony offered, and I think that everybody in Court heard it, Mrs. Cunningham testified that there was an accident. I don’t think that there was any question that there was an accident. As to the paint transference she testified that the initial blow was on a rubber bumper. I can understand why there wouldn’t been any paint from a glancing blow. There doesn’t appear to be much damage to the Cunningham vehicle. However, this is not a civil case and I [sic] not asked to determine the amount of the damage. The only thing I am required to do is to determine and ascertain from the facts whether or not an accident occurred, and whether or not the defendant, Mr. Hileman, was driving the car that left the scene. The Court has heard two witnesses testify, Mrs. Cunningham, who made a specific I.D. There was no question in her mind that the defendant was driving the vehicle. The testimony of the witness who came along immediately after the accident, that he saw the car, and that he saw the defendant, Mr. Hileman, driving the car. The information charges leaving the scene of an accident, that the defendant knowingly failed to stop at the scene or to report such an accident, which resulted in vehicle damage. There appears to have been vehicle damage. I am not saying how much damage there was.”

Initially, defendant contends that, in order to obtain a conviction under section 11 — 402(a), the State must prove that he knowingly left the scene of an accident and that the State failed to prove that he knew that an accident. occurred. Defendant’s argument is based on the similarity in language of sections 11 — 401 and 11 — 402 of the Illinois Vehicle Code. Section 11 — 401 states:

“Motor vehicle accidents involving death or personal injuries, (a) The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11 — 403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.
* * *
(c) Any person failing to comply with paragraph (a) of [sic] shall be guilty of a Class A misdemeanor.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-401.)

Section 11 — 402, of which defendant stands convicted of violating, states:

“Motor vehicle accident involving damage to vehicle, (a) The driver of any vehicle involved in a motor vehicle accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such motor vehicle accident or as close thereto as possible, but shall forthwith return to and in every event shall remain at the scene of such motor vehicle accident until the requirements of Section 11 — 403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.
Any person failing to comply with this Section shall be guilty of a Class A misdemeanor.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-402.)

Defendant concedes that section 11 — 402 does not specify a specific mental state for conviction; however, he analogizes to section 11— 401(a) and People v. Nunn (1979), 77 Ill. 2d 243, 396 N.E.2d 27, to support his argument that section 11 — 402 requires the State to prove that he knew an accident had occurred. In Nunn, our supreme court held that the legislature did not intend to subject a person to the Class A misdemeanor penalty of section 11 — 401 if he unknowingly commits the offense. Rather, to support a conviction under section 11 — 401, the prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident or collision and that he left the scene of an accident, though not necessarily that defendant was aware he caused an injury or death. (People v. Janik (1989), 127 Ill. 2d 390, 399.) Based on the reasoning of our supreme court, we conclude that our legislature did not intend to subject a person to the Class A misdemeanor penalty of section 11— 402 if he unknowingly commits the offense. Rather, to support a conviction under section 11 — 402, the prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident, though not necessarily that defendant was aware he caused damage to such other vehicle.

Based on the evidence at trial, we cannot find that defendant was not proved guilty beyond a reasonable doubt. It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733, 734-35.) A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.) In the case at bar, the trial court could find that the defendant knowingly damaged the Cunningham motor vehicle because the accident made a fairly loud scraping sound of some duration. The court could have rejected Ms. Cunningham’s opinion, as stated in her statement to the police, that defendant did not appear to realize that he had been involved in an accident. The accident occurred in the area of defendant’s residence and both Mays and Ms. Cunningham were acquainted with defendant to the extent that they knew who he was when they saw him. Both witnesses saw defendant when their vehicles’ headlights flashed on him. Defendant contends that if he had been travelling at the speed Ms. Cunningham testified he had been travelling, both cars would have sustained more damage. The pictures of defendant’s vehicle were taken approximately two weeks before trial; therefore, the court could have found that defendant had the vehicle repaired between the time of the accident and the time pictures were taken. Although the pictures of defendant’s Gremlin show some damage, that damage is not the kind described by Harvel. The court could have rejected defendant’s testimony that no repairs were made as not being credible, especially in light of Harvel’s testimony that soon after the accident he observed a lengthy dent in the Gremlin. It appears that the two cars came together momentarily along side of each other and when defendant realized he had hit something he swerved away; therefore, only minor damage may have been sustained. Further, the court found that the accident involved a “glancing blow.” Therefore, when the evidence is viewed in the light most favorable to the State, this court cannot find that the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. Defendant’s conviction for leaving the scene of an accident involving damage to another vehicle is affirmed.

Defendant lastly contends that the restitution order requiring the probation office to determine the form and the amount of restitution is invalid because the trial court has the power to fix restitution. The judgment order, from which defendant appeals, recites, in part, “h. Restitution to be determined by the Probation Office.” The State does not contest this issue. Section 5 — 5—6 of the Unified Code of Corrections states:

“[TJhe court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order, directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6.)

Here, the trial court left that determination to the probation authorities. The failure of the trial court to make a determination as to the amount and conditions of payment does not comply with section 5— 5 — 6; therefore, this cause must be remanded for the purposes of the trial court making the required determination of the amount of restitution and the conditions of its payment as required by statute. See People v. Daminski (1980), 80 Ill. App. 3d 903, 906, 400 N.E.2d 708, 711.

The judgment of the circuit court of Union County finding defendant guilty of leaving the scene of an accident and sentencing him to probation is affirmed. However, that portion of the trial court’s order directing that defendant make restitution in the amount as determined by the probation office is reversed; and this cause is remanded to the circuit court of Union County for the purpose of making a judicial determination of the amount and conditions of payment as required by section 5 — 5—6 of the Unified Code of Corrections.

Affirmed in part; reversed and remanded in part.

HARRISON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
      In re MARRIAGE OF JAMES McGORY, Petitioner-Appellee, and SANDRA McGORY, Respondent-Appellant.
    Third District
    No. 3-88-0570
    Opinion filed July 6, 1989.

      Winstein, Kavensky, Wallace & Doughty, of Rock Island (Franklin S. Wallace, of counsel), for appellant.
    Lytton, Lytton & Sutton, of East Moline (Dean L. Sutton, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The marriage of James McGory and Sandra McGory was dissolved by judgment of dissolution of marriage on March 23, 1983. At that time, the parties had two children, namely Suzanne, born October 5, 1969, and Samantha, born November 24, 1970. The judgment awarded custody of the children to Sandra and required James to pay as unallocated support one-half of his unemployment compensation. At the date of dissolution, James’ employment had been recently terminated but was roughly $40,000 per year prior thereto. Sandra was also awarded, among other things, one-half of James’s severance pay of $3,540 and $10,400 as the net proceeds from the sale of the marital residence. James was further required to notify Sandra’s attorney upon becoming reemployed.

In August of 1983, Sandra petitioned the court for additional support on the ground that James had returned to employment. After a hearing on October 20, 1983, the court entered an order, dated December 12, 1983, requiring unallocated support payment of $428 on the first and third Friday of each month based on James’ net semimonthly income of $1,Q70 so long as Sandra is enrolled as a full-time student in college level courses with a re-view of the award to be had in four years. A further order entered January 11, 1984, required Sandra to “report any change in her educational status or employment status to *** [James].”

Oh October 28, 1987, James petitioned for modification alleging that the four-year period previously set by the court has expired. Sandra responded by denying the allegations and asked for increased support and attorney fees. Following discovery procedures, James amended his petition seeking termination of maintenance alleging that Sandra had not been a full-time student and she was able to take care of herself through assets accumulated as a result of the unallocated support payments.

At a hearing held on the petitions on July 27, 1988, the parties stipulated that Sandra was requesting an increase in support and maintenance. Sandra testified that since 1983, she and her two daughters had been living in Florida with Sandra’s father. Recently, however, she and Samantha moved to her home State of Michigan for Sandra to obtain employment. Suzanne stayed in Florida with Sandra’s father to attend her second year of college. Sandra stated that, as a result of moving to Michigan, her monthly cost of living increased from roughly $850 to $2,115 per month. Sandra attended a community college in Florida beginning in 1983. Her school records reveal she was last a full-time student during the spring term of 1984. She did enroll for additional classes in later years, particularly college algebra, but withdrew for credit purposes although she stated that she continued to attend the classes. Nonetheless, even if Sandra did attend the classes she withdrew from, she failed to enroll in enough classes from the fall of 1985 semester on to obtain full-time status.

Sandra further testified that since 1983, she has not worked except for a brief unsuccessful business venture in 1987 in which she earned $2,200. Otherwise, substantially all of Sandra’s income came from the unallocated support payments. Sandra states that she has regularly attempted to find suitable employment, but could identify only eight individual businesses that she applied to during the five-year period she was in Florida. She indicated her move to Michigan would benefit her employment search, as she had more contacts in Michigan.

On the other hand, James remarried, obtained new employment, and the trial court found he is now earning a net income of roughly $1,410.12 semimonthly. He also has approximately $110,000 in assets. It is clear that James is now earning more money than he was in 1983 and is in a substantially better financial position than is Sandra.

By order dated August 4, 1988, the trial court terminated the unallocated support payments to be made by James and effectively barred further maintenance. The trial court also found Suzanne to be “of age” and disallowed support for her. As to Samantha, however, the court found the minimum support guidelines to be inadequate considering the relative financial position of the parties and the standard of living Samantha would have enjoyed but for the dissolution, and thus, awarded Sandra $325 bimonthly as support for Samantha. Attorney fees were ordered to be the responsibility of each respective party.

The first issue is whether the trial court abused its discretion in terminating maintenance payments. Sandra argues that the standard of living established during the marriage as well as the great disparity of earnings subsequent to the marriage warrant an award of maintenance to her. In disallowing maintenance pursuant to section 504 of the Illinois Marriage and Dissolution of Marriage Act (the Act), however, the trial court took into account, among other things, the length of time since the marriage was dissolved, Sandra’s failure to notify James upon getting her degree and her lack of bona fide effort to find suitable employment. (Ill. Rev. Stat. 1987, ch. 40, par. 504.) In this case, Sandra received unallocated support for four years as well as receiving $5,200 at the time of dissolution as a lump sum maintenance award. She was given the opportunity to obtain a college diploma and become self-sufficient. During this period, however, Sandra ceased being a full-time student, thereby causing her own delay in obtaining a diploma. Moreover, the record is void of any bona fide attempt by Sandra to obtain self-sufficiency absent being a full-time student. Although a few resumes were sent and a business started, since spring of 1985 Sandra appears to have, for the most part, attended college part time without being employed outside of the home. “The Illinois Marriage and Dissolution of Marriage Act creates an affirmative obligation on the part of the spouse requesting maintenance to seek and accept appropriate employment.” In re Marriage of Calla-way (1986), 150 Ill. App. 3d 712, 716, 502 N.E. 2d 366.

Sandra’s failure to notify James, when she ceased being a full-time student, is not the primary reason for our affirmance of the trial court. The main reason is Sandra’s less than diligent attempt to earn a degree that properly should have taken two years, and her further failure, in the meantime, to diligently seek employment. In In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634, 450 N.E. 2d 1229, 1234, the court held that the party receiving maintenance is required to get the training and skills necessary to become financially independent and failure to do so within a reasonable time frame may form the basis for a petition to modify maintenance payments. If the record revealed that Sandra was seeking a four-year degree, or that she had been diligent in looking for employment, the results here may have differed. As it stands, however, the trial court’s decision is not an abuse of discretion nor is it against the manifest weight of the evidence. See In re Marriage of Wilder (1984), 122 Ill. App. 3d 338, 461 N.E. 2d 447.

The second issue is whether the trial court abused its discretion in denying education support for Suzanne. Sections 510 and 513 of the Act (Ill. Rev. Stat. 1987, ch. 40, pars. 510, 513) allow for the payment of educational support for a child, whether of minor or majority age, as equity may require. The trial court based its denial without prejudice for such support on the grounds that evidence was not presented regarding the relevant factors to be considered under the provisions of section 513 of the Act.

Indeed, the record is void of evidence concerning the amounts Sandra has been required to expend for Suzanne’s education. It appears as though Suzanne is not dependent upon Sandra for educational support, but has in fact become fully emancipated. Suzanne has employment, established credit and lives with her maternal grandfather. On cross-examination Sandra stated that Suzanne receives roughly $1,300 per semester in educational grants and there is no evidence to indicate this amount is inadequate to pay for Suzanne’s education or that she is dependent on her parents to provide further assistance.

Sandra cites In re Marriage of Pauley (1982), 104 Ill. App. 3d 100, 432 N.E. 2d 661, for the proposition that Sandra is entitled to reasonable living expenses of Suzanne beyond those expenses for tuition and fees. In Pauley, the court determined that the custodial wife was entitled to reasonable living expenses for two non-minor sons, one of whom was living at home and the other on campus. While the court discussed the factors to be considered under section 513 of the Act, we can only presume that satisfactory evidence was taken regarding these factors for a judge to make a knowledgeable decision on the matter. In the present case, no information other than that elicited by James’ counsel was presented regarding Suzanne’s financial resources and her financial dependency on Sandra. The little information received on cross-examination does not support Sandra’s request that James contribute to Suzanne’s education and maintenance. On a petition to modify under section 510(a), the burden is on the moving party to present to the court sufficient evidence upon which a decision can be made. Sandra has failed to meet her burden on this occasion but has the opportunity to be heard again since her petition was denied without prejudice.

The final issue for review is whether the trial court abused its discretion in denying Sandra’s request for James to pay her attorney fees. The parties stipulated that Sandra’s attorney fees of $1,000 were reasonable without agreeing which party should pay them. The trial court ordered each party to pay their own attorney fees and costs.

Section 508 of the Act authorizes the court to order either spouse to pay the attorney fees and costs of the other thereby enabling a spouse lacking sufficient financial resources to obtain legal representation in certain situations. (Ill. Rev. Stat. 1987, ch. 40, par. 508.) Subsections (a)(1) and (a)(2) of section 508 extend the court’s discretion to matters involving the defense of a proceeding under this Act and the modification of any order under this Act. (Ill. Rev. Stat. 1987, ch. 40, pars. 508(a)(1), (a)(2).) No provision is made, however, for an award of attorney fees to the spouse initiating an appeal. Since Sandra initiated this appeal, the only fees in question are those incurred at the trial level. Aside from the proceeding being one of a type outlined in subsections (a)(1) through (a)(5) and (b), the only statutory consideration to be made is the financial resources of the parties. Courts generally interpret section 508 to mean that the party seeking the relief must show financial inability to pay with the corresponding ability of the other party to pay. (In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 448 N.E. 2d 1030; In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E. 2d 947.) Financial inability exists where payment would undermine economic instability of the spouse incurring the debt. Dona-hoe 114 Ill. App. 3d 470, 448 N.E. 2d 1030; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E. 2d 576.

In this case, the evidence is convincingly clear that James has the ability to pay Sandra’s attorney fee of $1,000. The real question is whether Sandra has shown an inability to pay. She stated that payment of the attorney fee would come from a $3,000 savings account. At present, she has no job and her maintenance has just been terminated. Furthermore, she did not initiate these proceedings and should not be handcuffed in representing her interests by the inability to pay her attorney. Moreover, it appears that Sandra’s move to Michigan will require her to use part or all her savings account to provide for her living expenses. On the contrary, however, requiring James to pay the fee would cause no undue hardship to him. Further considering the great disparity in financial positions, we believe the trial court abused its discretion in denying Sandra’s request for James to pay her attorney fee of $1,000.

Accordingly, we affirm the trial court’s decision regarding the termination of maintenance to Sandra and the denial of educational support for Suzanne, but reverse the trial court’s decision regarding attorney fees and remand the cause, directing the trial court to order James to pay $1,000 for Sandra’s attorney fees.

Affirmed in part, reversed in part.

WOMBACHER, P.J., and STOUDER, J., concur.


text:
    ESTATE OF JAMES O. HENDERSON, Deceased, by Susan K. Henderson, Ex’x, Plaintiff-Appellant, v. W.R. GRACE COMPANY et al., DefendantsAppellees.
    Third District
    No. 3-88-0527
    Opinion filed July 6, 1989.

      Harold N. O’Hara, of Peoria, and Elliff, Keyser, Oberle & Davies, P.C., of Pekin (Burt L. Dancey, of counsel), for appellant.
    Thomas R. Davis, of Davis & Morgan, of Peoria (Bret S. Babcock and Karen Kendall, of counsel), for appellee W.R. Grace Company.
    Karen L. Kendall, David R. Sinn, Roger R. Clayton, and Christopher P. Larson, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellees United States Gypsum Company and Owens-Corning Fiberglass Corporation.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff-appellant, the estate of James O. Henderson, by Susan K. Henderson, executrix (Plaintiff), pursuant to Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) appeals from a decision and judgments on defendants’ motions for summary judgment dated July 7, 1988, wherein the trial court granted defendants-appellees’, W.R. Grace Company, United States Gypsum Company and Owens-Corning Fiberglass Corporation (Defendants’), respective motions for summary judgment.

Plaintiff’s second amended complaint filed August 27, 1985, alleged in six counts that Mr. Henderson died at the age of 41, leaving Mrs. Henderson and three adult children and one dependent minor child. The alleged cause of Mr. Henderson’s death was exposure to harmful asbestos fibers throughout his 18 years of employment as a janitor at Edison School in the Pekin grade school district. Said exposure resulted in Mr. Henderson fatally suffering from a form of cancer known as “on-oat-cell carcinoma.” The second amended complaint also alleged that each defendant knew or should have known that asbestos fibers were harmful to human health and carcinogenic, and each defendant was negligent in failing to warn of the harmful effects of its asbestos products and in failing to test its products prior to distribution.

Defendants responded, before answering Plaintiff’s second amended complaint, by filing respective motions for summary judgment. After numerous continuances and opportunities to file affidavits, hearing was had on the motions on February 13, 1987, resulting in summary judgment in favor of all defendants being granted by order dated March 19, 1987. The primary reason for the trial court’s dewas Plaintiff “failed to file depositions or affidavits showing a connection between asbestos and the descendent’s [sic] death,” and failing to do so, “[t]he court must accept the uncontradicted fact that decedent’s death was due to lung cancer caused by cigarette smoking.”

Plaintiff, thereafter, filed a motion to vacate summary judgment on April 8, 1987, supported with affidavits and memorandum. Defendants duly responded and hearing was held on May 15, 1987, wherein the court granted Plaintiff’s motion to vacate the order dated March 10, 1987. It was further ordered, however, that additional hearings on defendants’ motions for summary judgment were to be held within 42 days, with the parties granted leave to file additional materials supporting their respective positions. It is clear that after the order of March 10, 1987, was vacated, the primary focus of defendants’ motions concerned the issue of product identification.

Hearings on defendants’ motions were next held on September 25, 1987, wherein the cause was continued to December 4, 1987, and plaintiff was granted leave to file any materials on or before November 25, 1987. The record also reflects that on September 25, 1987, W. R. Grace’s attorney filed plaintiff’s answers to defendants’ consolidated interrogatories.

Plaintiff subsequently filed the affidavits of Donald D. Mulch II (Mulch), James R. Millette (Millette) and Darrell Becker (Becker). Mulch’s affidavit stated that as part of his duties as director of operations of the Pekin Grade School Board of Education he was the custodian of various records pertaining to the construction of Edison School, and he had examined a copy of the bids and specifications for the construction of Edison School. He further stated the specifications required the use of “Zonolite” acoustical plaster or an approved equal and Zonolite is a brand name for a W. R. Grace Company product. He also indicated the school district requires all structures be constructed according to specifications unless a written agreement is entered to the contrary. Millette’s affidavit stated that he is the director of services for McGrone Environmental Services, Inc., and that it is possible to determine the probable manufacturer of a sample of asbestos-containing building material if provided with the manufacturer’s formula for the product. Becker’s affidavit stated he had examined “Sweet’s” catalog file of products for general building and renovation published by McGraw-Hill, which contained a listing for “Zonolite Masonry products.” The catalog entry for Zonolite stated it was a registered trademark of W. R. Grace Company.

Hearing was finally held on defendants’ motions on January 15, 1987, and taken under advisement. On July 7, 1988, the trial court again granted all defendants’ motions for summary judgment on the basis that plaintiff “failed to show sufficient ability to present evidence on the issue of product identification *** [and] *** [i]n the absence of such showing, no other facts are material and the defendants are entitled to judgment as a matter of law.”

The only issue presented for review is whether the trial court erred in granting defendants’ motions for summary judgment.

Section 2 — 1005(b) of the Illinois Code of Civil Procedure states “[a] defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(b).) Moreover, “[t]he judgment sought shall be rendered without delay 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 a judgment as a matter of law.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).

Defendants’ motions for summary judgment were supported only by plaintiff’s answers to defendants’ consolidated interrogatories wherein plaintiff failed to identify any brand or trade name of the asbestos containing products to which the decedent was exposed. Defendants’ respective motions also alleged that there were no facts upon which to base a claim that the decedent was exposed to breathing asbestos fibers from products furnished by them.

Plaintiff’s primary argument is that defendants have not refuted by affidavit or exhibit any allegations in the second amended complaint that defendants were the manufacturers of the products allegedly causing decedent’s death. Plaintiff, therefore, maintains the allegations of the second amended complaint establish a bona fide issue of material fact regarding product identification. It is generally true that if a motion for summary judgment is unsupported by evidentiary facts, the plaintiff may rely on the allegations of the complaint to raise genuine issues of fact. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295; Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E .2d 1239.) In this case, however, defendants submitted plaintiff’s answers to interrogatories as evidentiary facts supporting their respective motions. Illinois case law clearly allows answers to interrogatories to be treated as affidavits for summary judgment purposes (Komater, 151 Ill. App. 3d 632, 502 N.E. 2d 1295; Cato, 83 Ill. App. 3d 321, 403 N.E. 2d 1239), which, if uncontradicted, stand as admitted (Komater, 151 Ill. App. 3d 632, 502 N.E. 2d 1295; Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 476 N.E. 2d 1259; Colwell Systems, Inc. v. Henson (1983), 117 Ill. App. 3d 113, 452 N.E. 2d 889). Allegations of a complaint alone are insufficient to contradict evidentiary facts supporting a motion for summary judgment as those allegations merely purport to establish bona fide issues of fact. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E. 2d 497.) Thus, two underlying questions are presented. First, does plaintiff’s answer to defendants’ interrogatory affirmatively state facts contradicting the allegations of plaintiff’s second amended complaint, and second, if the answer to the first question is yes, do the affidavits filed by plaintiff create a genuine issue of material fact as to product identification.

In Komater v. Kenton Court Associates, the court stated that a movant for summary judgment cannot prevail merely by pointing out deficiencies of an opponent’s answer to interrogatory, but must affirmatively set forth facts supporting the allegations of the motion. (Komater, 151 Ill. App. 3d 632, 502 N.E. 2d 1295.) The answers to interrogatories in Komater failed to set forth all facts necessary to establish an enforceable contract. The court determined that although these deficiencies were admitted for purposes of the motion because of the lack of counteraffidavits, movant was not entitled to judgment as a matter of law. (Komater, 151 Ill. App. 3d 632, 502 N.E. 2d 1295.) We do not dispute the result in Komater, but believe it distinguishable from the present case. In the present case, failure of plaintiff to identify any product of defendant to which the decedent was exposed goes beyond a mere deficiency, but is a central and necessary element of plaintiff’s case.

Substantially similar to the present case is the United States Supreme Court decision of Celotex Corp. v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. In Celotex, the petitioner noted that respondent failed to identify any witness who could testify about the decedent’s exposure to asbestos, despite being specifically requested to do so in answering interrogatories. The Court stated that Rule 56(c) of the Federal Rules of Civil Procedure provides for the granting of summary judgment “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” (Celotex, 477 U.S. at 322, 91 L. Ed. 2d at 273, 106 S. Ct. at 2552-53.) Moreover, a movant may properly rely on answers to interrogatories without need for affidavits to support a motion and “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 91 L. Ed. 2d at 275,106 S. Ct. at 2554.

Rule 56 of the Federal Rules of Civil Procedure is substantially similar to section 2 — 1005 of the Illinois Code of Civil Procedure excepting the inclusion of “answers to interrogatories” among the considerations in Rule 56. As previously indicated, however, Illinois case law allows for the use of answers to interrogatories, and thus, the Celotex decision based on Rule 56 is persuasive. In short, plaintiff's answer to defendants’ interrogatory regarding plaintiff’s inability to identify any of defendants’ products, if left uncontradicted, is a sufficient basis for the trial court to grant summary judgment.

The affidavits filed by plaintiff purporting to contradict plaintiff’s answer to defendants’ interrogatory clearly fail to identify any product of defendants Owens-Corning Fiberglass Corporation and United States Gypsum Company. As to W. R. Grace Company, the affidavits state that Zonolite or an approved equal was required in the construction of Edison School, that Zonolite is a W. R. Grace product and that the school district insists on compliance with specifications. Moreover, affiant Millette indicates that if provided with the formula for defendants’ product, he could compare those formulas with samples from the school to determine whether defendants’ products were present in the samples. Plaintiff’s allegations fail to create a genuine issue for two reasons. First, the affiants fail to state whether Zonolite, as opposed to an approved equal, was actually used in the construction at Edison School. Second, stating that the probable manufacturers can possibly be determined, if the information is provided, is not sufficient to affirmatively state that any of defendants’ products were present in the school.

Plaintiff also makes mention that defendants ought to know whether or not their products were used in construction of Edison School, but nowhere do they deny said products were present. It is not, however, defendants’ burden to come forth and voluntarily provide plaintiff with the results of any tests concerning samples at the school. It is plaintiff’s responsibility to use discovery methods and obtain this knowledge to substantiate an element of the cause of action. Additionally, this case is three years old, and the issue of product identification arose no later than May 15, 1987; therefore, any claim that plaintiff was without sufficient time to conduct discovery is without merit. Through the use of discovery, plaintiff ought to have been able to procure the formulas for defendants’ asbestos products, and if a delay arose in obtaining this information, plaintiff could have secured continuances on the motions for summary judgment until such information was disclosed. In fact, plaintiff has made no claim that it was without sufficient time to conduct full discovery.

Plaintiff need not prove its case at the summary judgment stage, but must at least come forward with enough evidence to adequately create a genuine issue of material fact. Plaintiff was unable, and thus, the decision of the trial court is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    KNOX COUNTY BOARD OF REVIEW, Plaintiff-Appellee, v. ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants-Appellants.
    Third District
    Nos. 3-88-0630, 3-88-0634 cons.
    Opinion filed July 5, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer Keller, Assistant Attorney General, of Chicago, of counsel), for appellant Illinois Property Tax Appeal Board.
    Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellant Clyde Raible.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Jonathon T. Schlake, Assistant State’s Attorney, of counsel), for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The issue presented for review is whether the Illinois Property Tax Appeal Board’s determination that a privately owned golf course located in rural Knox County, Illinois, was entitled to an “open space” classification for tax purposes, pursuant to section 20g — 1 of the Revenue Act of 1939 as amended (Ill. Rev. Stat. 1987, ch. 190, par. 501g — 1). We find that such classification was correct.

Mr. Clyde Raible owns a 77.5-acre tract of land in rural Knoxville, Illinois. The land includes a one-acre homestead and a nine-hole golf course on the remaining 76.5 acres.

For 1985, Mr. Raible received a tax bill reflecting a total assessed value of $52,380. That figure reflected a per-acre assessment based upon a value of $368.40 per acre, and a per-hole assessment based upon a value of $8,520 per golf hole.

Subsequently, Mr. Raible filed an application with the Knox County Board of Review (hereinafter the Board) seeking to obtain “open space” valuation for the golf course. “Open space” valuation is provided for under sections 20g— 1 through 20g — 3 of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, pars. 501g — 1 through 501g — 3). When not eligible for open space valuation, all property is valued at its fair market value. (Ill. Rev. Stat. 1987, ch. 120, par. 501.) However, if land is being used in a way which is defined in section 201g — 1 as “open space purposes,” the land may be valued based upon the price it would bring at a fair voluntary sale for use by a buyer for open space purposes. If the subject land meets statutory criteria, it will not be taxed at its fair market value, but at its fair cash value.

The Board denied Mr. Raible’s application and he pursued an appeal before the Illinois Property Tax Appeal Board (hereafter the PTAB). The PTAB held a hearing on the appeal and reversed the Board’s determination.

The PTAB concluded that the golf course was entitled to “open space” classification. The PTAB reduced the assessed value of the improvements on the property from $40,680 to $15,120. That reduction reflected a valuation of a building and house on the one-acre parcel, but excluded the additional per-hole assessments on the golf course. The per-acre assessment on the land remained the same.

The Board brought a complaint for administrative review in the circuit court of Knox County, pursuant to the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.; ch. 120, par. 592.4) to obtain judicial consideration of the PTAB’s decision. Upon review, the trial court reversed the PTAB’s determination. Following the trial court’s disposition of the complaint, the PTAB and Mr. Raible filed the instant appeal.

The appellants principally contend that the golf course is entitled to “open space” classification as that term is contemplated in section 20g — 1 of the Illinois Revenue Act of 1939. (Ill. Rev. Stat. 1987, ch. 120, par. 501g — 1.) Furthermore, they assert that the taxable value of the land should be assessed as open space property and not as a golf course. Pursuant thereto, it is their contention that a separate assessment on each of the nine tees, greens and fairways is inappropriate.

The Board contends that pursuant to sections 20g — 2 and 20g — 3, a piece of land is entitled to open space classification only if its fair cash value as open space land at the time it applies for the classification is less than its fair market value.

The subject statutory provision amends the Revenue Act of 1939 to provide for alternative valuation of real estate used for open space purposes if the property has been used for open space purposes for the three years immediately preceding the year in which the assessment is made. The statute reads in pertinent part:

“§20g — 1. Except in counties with a population of 200,000 or more which classify real property for the purpose of taxation, in addition to valuation as otherwise permitted by law, upon the filing of an application under Section 20g — 2 by the person liable for the taxes on that land, land which is being used for open space purposes and has been so used for the 3 years immediately preceding the year in which the assessment is made shall be valued on the basis of its fair cash value, estimated at the price it would bring at a fair, voluntary sale for use by the buyer for open space purposes.
Land is used for open space purposes within the meaning of this Section if it is more than 10 acres in area and is used actually and exclusively for maintaining or enhancing natural or scenic resources, protects air or streams or water supplies, promotes conservation of soil, wetlands, beaches, or marshes, including ground cover or planted perennial grasses, trees and shrubs and other natural perennial growth trees and shrubs, and including any body of water, whether man-made or natural, conserves landscaped areas, such as public or private golf courses, enhances the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations, sanctuaries, or other open spaces, or preserves historic sites. Land is not used for open space purposes within the meaning of this Section if it is used primarily for residential purposes.” Ill. Rev. Stat. 1987, ch. 120, par. 501g — 1.

Pursuant to the plain language of section 20g — 1, land is entitled to open space valuation if it satisfies certain specified criteria. The land must be located in a county with a population of less than 200,000. It must comprise at least 10 acres. It also must serve at least one of the six enumerated functions described in the statute. Additionally, the owner of the land must not use it primarily for residential purposes, and he must have used it as open space land for three years immediately preceding the year for which he seeks open space valuation.

The evidence of record, before this court, fully satisfies the express statutory criteria. Knox County, the location of the property, has a population of less than 200,000; the property has been used as open space for 14 years; it is not used primarily for residential purposes; and the property conserves landscaped areas and promotes soil conservation.

Furthermore, this court determines, after a review of the pertinent transcripts of the legislative debates and Governor’s legislative staff analysis, that the improvements to open space land that enhance or conserve the natural scenic beauty of that land, such as greens, tees and fairways, are not separately assessable under the Act.

In construing a statute, it is fundamental that a court is to ascertain and give effect to the legislative intent; in doing this, the court should consider not only the language of the statute, but also the reason and necessity for the law, the evils to remedied, and the objects and purposes to be obtained. (People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) When a statute is susceptible of two or more constructions, it becomes proper to examine sources other than its language for evidence of legislative intent, and the legislative history of the statute is relevant. Kennedy Brothers, Inc. v. Property Tax Appeal Board (1987), 158 Ill. App. 3d 154, 510 N.E.2d 1275.

Section 20g — 1 was created by enactment of House Bill 121 during the 80th General Assembly. The bill was identical to House Bill 729, which passed both houses in the 79th General Assembly and was subsequently vetoed by the Governor, who objected to the broad definition of open spaces.

The proposed legislation was intended to provide a tax incentive for owners of open space properties, in part to preserve recreational activities in rapidly growing communities. (79th Ill. Gen. Assem., House Proceedings, May 16, 1975, at 177 (statement of Representative Beaupre).) Representative Daniels, a chief sponsor of the bill, stated:

“Basically, the effect that it would have in golf courses in the State of Illinois is that they would be valued at the uniform rate as open space within the definition of the Bill. This means that they would be valued at a fair cash value as that particular use. The same would apply to other areas, recreational areas, historical sites, and the like.” 79th Ill. Gen. Assem., House Proceedings, May 16, 1975, at 174.

Senator Rock advanced a similar position:

“There is no question that a golf course is, in fact, open space, and as long as it is so used and not used for development purposes, it should be subject, we feel, to consideration by the assessor to assess it at its current use as open land, not its potential use as development property.” 79th Ill. Gen. Assem., Senate Proceedings, June 16,1975, at 159-60.

Just prior to the Senate’s passage of the bill, Senator Philip stated that the bill provided for “alternate valuation of real estate for the use for open space purposes for at least three years on its value as open space rather than on its value as highest and best use.” 80th Ill. Gen. Assem., Senate Proceedings, June 22, 1977, at 66.

Beyond the examination of the legislative debates, we also recognize that the statutory interpretation determined by the PTAB expresses an informed source for ascertaining the legislative intent. (See Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 348 N.E.2d 161.) We must accord prima facie validity to the PTAB’s conclusion. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The PTAB’s determination that the value of the additional ground improvements, such as golf greens and tees, was not to be included in the value of the land under the Act was correct. Our review of the overall statutory scheme sustains the interpretation that the Act contemplates a single assessed value for open space land.

Lastly, the PTAB estimated the fair cash value of the golf course to be $368.39 per acre ($122.80 assessed value, per acre). This figure was adopted from the assessor’s 1985 tax bill. The Board failed to proffer evidence that the PTAB’s dollar assessment was in error; consequently, the trial court was not warranted in disturbing it.

For all of the foregoing reasons, the judgment of the circuit court of Knox County is reversed and the decision of the Illinois Property Tax Appeal Board is affirmed.

Reversed.

STOUDER and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL B. McVEY, Defendant-Appellee.
    Third District
    No. 3-88-0704
    Opinion filed July 13, 1989.

      Marc Bernabei, State’s Attorney, of Princeton (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Michael B. McVey, was charged by uniform citation and complaint with driving while his license was revoked (Ill. Rev. Stat. 1987, ch. 951k, par. 6 — 303(a)). Prior to trial, he filed a motion to quash the warrantless arrest and to suppress the evidence. Following a hearing, the trial court granted his motion. The State appeals.

At the hearing on the motion, Tiskilwa police officer Richard Taylor testified that on September 23, 1988, at about 11:45 p.m., he was riding his bicycle through Tiskilwa Park. He noticed two people sitting on a park bench and advised them to leave the park since it closed at 11 p.m. He stated that the two people were violating a village ordinance by remaining in the park after it closed. He further stated that as he continued riding by, he heard a female yell something at him. Thereafter, he observed the two people get into a red car and drive out of the park. He noticed that after the car left the park it pulled off onto the side of the road near the post office.

Officer Taylor then rode his bike home, got into his squad car, and returned to identify the two people, who were still in the red car parked near the post office. Taylor pulled up behind the car and stopped without activating his squad car’s mars lights. As he was about to exit his vehicle, the passenger in the red car, Denise Harris, got out and asked Taylor if there was a problem. Taylor testified that he knew Denise personally. Taylor told Denise that he was checking to see who was in the car and why they were sitting there. Denise responded that the other person in the car was a friend of hers from California and they were just talking.

The defendant then got out of the car and asked Taylor if there was a problem. Taylor asked the defendant if he had any form of identification. The defendant gave the officer a California driver’s license. Taylor testified that he then told the defendant to go back to his vehicle and have a seat, because he was going to run a computer check of the defendant’s license. The license check revealed that the defendant had a valid California license and a revoked Illinois license. Taylor then placed the defendant under arrest for driving with a revoked license.

The defendant testified that at about 11:05 p.m. on the night in question he was sitting and talking with his girlfriend, Denise, in Tiskilwa Park. He stated that Taylor rode by on his bicycle and told them that the park closed at 11 p.m. and that they should leave. Denise told Taylor not to bother them. She and the defendant then got into a car and drove two blocks out of the park. They parked on the side of the road, where they continued talking. About 15 minutes later, a squad car pulled up behind them. According to the defendant, Denise got out of the car and talked to the officer. Shortly thereafter, the defendant got out of the car and asked the officer if there was a problem. The officer asked the defendant for his driver’s license. The defendant testified that he told the officer that he was a resident of California and handed him a valid California driver’s license. After running a computer check, the officer arrested the defendant for driving with a revoked license.

The trial judge found that the officer had had no reason to ask the defendant for his driver’s license. On appeal, the State contends that the trial court erred in granting the defendant’s motion. Specifically, the State argues that the encounter between the defendant and the police officer was not a “seizure” within the meaning of the fourth amendment. In the alternative, the State contends that, if there was a seizure, it was justified pursuant to a valid Terry stop that subsequently developed into an arrest supported by probable cause.

Initially, we note that not all personal intercourse between policemen and citizens involves a seizure so as to implicate the fourth amendment. (People v. Fenton (1988), 125 Ill. 2d 343, 532 N.E.2d 228.) Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.) Police do not seize a person by merely approaching him in a public place and asking him questions. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Alcantara (1989), 179 Ill. App. 3d 105, 534 N.E.2d 405.) The test employed to determine if an individual has been seized is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.) A police officer seeking to justify an intrusion of a person’s freedom to walk away “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) This principle has been codified in Illinois. Section 107 — 14 of the Code of Criminal Procedure of 1963 provides that a peace officer may stop a person in a public place when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.) A reviewing court will not disturb a trial court’s finding in a hearing on a motion to suppress unless the trial court’s finding was manifestly erroneous. People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.

Turning to the instant case, we must first determine at what point in time the defendant was “seized” within the meaning of the fourth amendment and, more specifically, Terry v. Ohio. We note that in the case at bar Officer Taylor merely pulled up behind the defendant, without activating his lights or siren. The defendant then approached the officer and a conversation ensued. The officer requested the defendant’s driver's license and the defendant handed him an apparently valid California driver’s license. At that point, a seizure had not yet occurred. However, the officer proceeded a step further and ordered the defendant to have a seat in the defendant’s car while the officer ran a computer check on the defendant’s license. By then, the defendant could reasonably believe that he was no longer free to walk away. We therefore find that a seizure occurred when the officer required the defendant to return to his car while he ran a computer check.

We next turn to the question of whether the instant seizure was justified. The State contends that any seizure which occurred in the encounter between the defendant and Officer Taylor was justified because the officer had a reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed, The State points to the fact that Taylor observed the defendant in the park after closing hours, which was a violation of a village ordinance. The State also points out that a female yelled at Officer Taylor. It contends that these were significant indicators that criminal activity was afoot.

We find that Officer Taylor did not possess an articulable suspicion that a crime had been or was about to be committed. Officer Taylor did not testify that he made the stop to issue a citation for an ordinance violation, and the record does not reveal that such a citation was issued. Further, Taylor testified that Denise explained to him that the defendant was a friend of hers from California and that they were just talking. The defendant then handed the officer an apparently valid California driver’s license. At that point, the officer’s questions had been answered. We find no reason for him to have harbored suspicion that criminal activity was afoot. More important, he offered no testimony that he had such a suspicion. We therefore conclude that the trial judge’s granting of the defendant’s motion was not manifestly erroneous.

The State also argues that the trial judge’s ruling was erroneous because he believed that the encounter on the side of the road had to be supported by probable cause instead of a lesser standard. We find the State’s argument unpersuasive since the question before this court is the correctness of the result reached by the trial judge, not the correctness of his reasoning in reaching that result. People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.

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

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY A. BURNSIDE, Defendant-Appellant.
    Third District
    No. 3-88-0674
    Opinion filed July 12, 1989.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Terry A. Burnside, the defendant, was indicted, tried by a jury and found guilty of the offense of possession of a controlled substance with intent to deliver the same. He was also charged with the unlawful use of weapons by a felon. The defendant was sentenced to concurrent terms of 15 and 7 years of imprisonment.

Evidence adduced at trial established that pursuant to search warrant, a number of police officers entered a residence in which the defendant, along with other family members, resided. The search of an upstairs bedroom yielded drug paraphernalia, to-wit, cellophane packets, paper bags, plastic bags, a Seal-a-Meal packaging devise, scales, a notebook bearing names, monetary figures and slang terms for cocaine, as well as white substance later determined to be cocaine, and a handgun and a shotgun were also discovered during the search.

During the course of the trial, the defendant’s stepmother testified that the defendant and his brother, Brian, shared the room which was searched. She further testified that Brian had a significant problem with drugs.

The defendant testified in his own behalf and asserted that he and his brother shared the bedroom, and all the drug paraphernalia, as well as the cocaine and other incriminating evidence, was the property of and belonged to Brian.

Brian was present during the first day of trial and, though not under a subpoena, was expected to testify for the defense. Brian disappeared on the second day of trial, and the court granted the defense time in which to locate him. In fact, the defendant left the courtroom to look for his brother. The defendant did not return from the search as quickly as expected, so the court issued a bench warrant for the defendant and excused the jury until the following day. Very shortly thereafter, the defendant reappeared with the news that Brian was on his way to the courthouse. The dispersing jurors were “recaptured” and the trial proceeded. The trial judge informed the defense that an acquittal would end the matter, but that he would hear Brian’s testimony if he came to the courthouse. The parties then delivered final arguments, the jurors were instructed, and the jury retired to deliberate.

Shortly after the jury retired, brother Brian sauntered into the courthouse and announced that he was there to testify for the defendant. Brian, outside the presence of the jury, did indeed, testify. This testimony was to the effect that all the cocaine, containers, packets, scale and other drug paraphernalia had been placed in the room by him (Brian), while the defendant was asleep in the room with a girl friend. Brian also claimed that he placed the guns in the room, and that the small notebook was his, but insisted that the entries contained in it referred to automotive repair jobs. Brian also acknowledged having a prior drug conviction.

While Brian was mudding up the water to a fare thee well with his testimony, the jury indicated that it had reached a verdict. Prior to receiving the verdict, defense counsel moved for a mistrial, the State resisted this motion, and the judge opined that all the annoying problems might be obviated by a verdict of an acquittal. The jury returned a verdict of guilty, which clearly did not serve to obviate the problems confronting the trial court.

Both the Constitution of the United States and the Constitution of the State of Illinois provide that a defendant in a criminal proceeding shall enjoy the right to a speedy, public trial by an impartial jury (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8).

In the instant case, we are presented with an incongruous situation, where the burden of determining the guilt or innocence of the defendant was divided between the trial judge and the jury. The defendant did not receive a full trial by an impartial jury.

The trial judge may well have had valid reasons for prohibiting the witness, Brian, from testifying, but once he determined to permit the witness to testify, such testimony should have been heard by the jury. It was within the province of the jury, not the trial judge, to determine the credibility of the testimony of the witness, Brian. See People v. Upshaw (1965), 58 Ill. App. 2d 256, 207 N.E. 2d 728.

The defendant raises other issues in this appeal; however, having determined that the conviction of the defendant should be reversed and a new trial be conducted, we need not consider the other issues, relating to sentencing, fines, and credit for pretrial jail time.

For the reasons stated, the judgement of the circuit court of Peoria County is reversed and this case is remanded for a new trial.

Reversed and remanded.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE HOWERTON

text:
    GERALD CLUTTS, Appellant, v. HERMAN L. BEASLEY et al., Appellees.
    Fifth District
    No. 5-88-0438
    Opinion filed July 18, 1989.

      Applegate & Maurizio, of Carbondale, for petitioner.
    No briefs filed for respondents.
   JUSTICE HOWERTON

delivered the opinion of the court:

The Alexander Comity Board (County Board) approved Herman L. Beasley’s proposed regional landfill. Gerald Clutts, an adjacent landowner, objected. The County Board denied his objections and he caused the Pollution Control Board to review the County Board’s decision under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). The Pollution Control Board affirmed the County Board’s decision. Clutts appeals.

Clutts claims first that the County Board’s written decision did not include specific findings of fact, but instead, merely recited the criteria for approving landfills prescribed by statute. Ill. Rev. Stat. 1987, ch. 111-tz, par. 1039.2(a).

We hold that the decision of the County Board is adequate under both the provisions of the statute and the holding in E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, affd (1985), 107 Ill. 2d 33, 481 N.E.2d 664. In the instant case, contrary to Clutts’ argument, there can be meaningful review of the County Board’s decision, because there is a record of all matters that were presented to the Board. That record, furthermore, supports the decision to approve Beasley’s proposed landfill.

The criteria necessary for approval of a landfill are:

“(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year-flood plain or the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;
(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; [and]
(viii) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.” Ill. Rev. Stat. 1987, ch. 111%, par. 1039.2(a).

These criteria are factual as well as ultimate findings to be made by the County Board. In the ordinary case, it would be difficult for a County Board to be more specific than what is set out as criteria. For example, either a proposed facility is, or is not, outside the boundary of the 100-year flood plain. The purpose of these criteria is to impose standards, so that the decision of the County Board to approve or deny operation of a proposed landfill is made with guidance, rather than arbitrarily or by whim. We hold that so long as the decision is in writing, and a record has been made showing the basis for the decision, neither a detailed statement finding specific facts, nor a detailed explanation of the relationship between the facts, the criteria, and the conclusions is necessary, and the decision can be framed in the language of the criteria set out in the statute.

Clutts next claims that the decision to approve the landfill was against the manifest weight of the evidence for three reasons: (1) the evidence did not show that the landfill is necessary; (2) the evidence did not show that the landfill is designed and is to be operated so as to protect the public health, safety and welfare; and (3) the evidence did not show that the landfill is to be located so as to minimize incompatibility with the surrounding area.

We hold that the decision to approve the landfill is in accord with the evidence.

First, a landfill does not have to be necessary in absolute terms. It is enough that it is “expedient” or is “reasonably convenient.” (E & E Hauling, 116 Ill. App. 3d at 609, 451 N.E.2d at 573; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969, 976.) The testimony in this case established that the closest landfill was open only five days a week from 10 a.m. to 3 p.m. The only other alternative landfill was in May-field, Kentucky. The needs of the residents of Alexander County are substantial: the record established that there is considerable litter in the county. This evidence, therefore, established that the proposed landfill was appropriate to the purpose at hand. See “expedient” Webster’s New World Dictionary 216 (1979).

Second, the evidence shows that the landfill is designed and is to be operated so as to protect the public health, safety and welfare. As pointed out by the Pollution Control Board, an experienced landfill design engineer has designed the proposed landfill in compliance with the standards for nonhazardous waste disposal set by the Illinois Environmental Protection Agency. Compliance with these standards satisfies this criterion contained in the statute.

Clutts finally argues that the area in which the facility is to be built is totally residential and agricultural and that there can be no guarantee that the water supply will not be contaminated by the landfill. Clutts further asserts that there are better locations available. An affidavit submitted from a banker asserts that the value of Clutts’ land would diminish if the facility was built. He claims, therefore, that the evidence did not show that the landfill is to be located so as to minimize incompatibility with the surrounding area. The record shows a basis for the decision to approve the landfill.

A guarantee against contamination is not required by the statute. When a decision of a county board to approve or disapprove a proposed facility is reviewed, the Board’s decision will be upheld so long as it is not against the manifest weight of the evidence. (City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 452 N.E.2d 1378; E & E Hauling, 116 Ill. App. 3d 586, 451 N.E.2d 555.) In this case, a design engineer testified that the landfill was designed and located in compliance with Illinois Environmental Protection Agency standards. As to property values and better places, the law requires only that the location minimize incompatibility and effect on property values, not guarantee that no fluctuation will result; nor does the statute require the facility to be built in the “best” place, and rightly so for that is so subjective as to give no guidance at all to those who must decide these issues.

The decision of the Illinois Pollution Control Board affirming the Alexander County Board is not against the manifest weight of the evidence and is affirmed.

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN S. MARTIN, Defendant-Appellee.
    Fifth District
    No. 5-88-0180
    Opinion filed June 21, 1989.

      Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, John Martin, was charged on January 20, 1987, with driving under the influence of alcohol in violation of section 11— 501 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501), and with driving while license revoked in violation of section 6 — 303 of the Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 6— 303). The circuit court of Williamson County subsequently dismissed the cause for violation of the defendant’s right to a speedy trial. The State appeals. We reverse the circuit court and remand the cause for further proceedings.

On July 7, 1987, the defendant pled not guilty to the two charges. The trial court scheduled the cause for a September 8, 1987, jury trial. On September 8 the defendant failed to appear and a warrant was issued for his arrest. On September 16, 1987, the court quashed the defendant’s arrest warrant and set the cause for a November 11, 1987, arraignment. On September 22, 1987, the defendant’s attorney entered an appearance. On September 30, 1987, the court scheduled the cause for a December 16, 1987, jury trial. On December 16, the court reset the cause for the February docket. The cause was then delayed from February 9, 1988, to February 25, 1988, because two judges recused themselves. On February 23, 1988, the defendant filed a motion to continue, which the court granted. On March 3, 1988, the circuit court granted the defendant’s motion to dismiss, finding that the defendant’s right to a speedy trial had been violated. The following was entered in the record sheet for March 3,1988:

“Defendant present with attorney Patchett who moves for dismissal based upon unreasonable delay pursuant to statute. Defendant demanded jury trial on July 7, 1987 but failed to appear for pre-trial on September 8, 1987. Defendant then appears on September 16, 1987. 160 days from July 7, 1987 expired on 12/14/86. If 30 days are attributable as delay to defendant for failing to appear for pre-trial the operative date is 1/13/88. On December 23, 1987 defendant waives jury. Nothing was done by defendant during this period of time to delay trial. In fact from 12/23/87 until 2/23/88 nothing was done to delay the case by defendant. The Court finds that the provisions of SC Rules regarding prompt trials have been violated. Defendant is discharged.”

The State filed this appeal, in which it contends that the trial court erred in discharging the defendant because 160 days of delay attributable to the State had not run at the time of the discharge on March 3,1988.

This appeal essentially turns on three questions: (1) whether the defendant had made a valid jury demand on July 7, 1987; (2) whether the original Supreme Court Rule 505 (107 Ill. 2d R. 505), rather than the amended Supreme Court Rule 505 (113 Ill. 2d R. 505), applied to the defendant’s cause; and (3) whether the record supports the defendant’s assertion that the State should be charged with the delay occasioned between October 27, 1987, and December 16, 1987.

The entry in the record sheet for July 7, 1987, states that the defendant, in an appearance with the public defender, pled not guilty, and that the court scheduled a jury trial for the September docket. The trial court apparently found that this was the defendant’s jury demand, and that the time thus began to run against the State on that date. We are unable to say that this finding was in error.

The. next question is whether Supreme Court Rule 505 as it was in effect prior to August 1, 1987, or the rule as amended on August 1, 1987, is effective in this cause. Supreme Court Rule 505, as effective prior to August 1, 1987, provided, inter alia:
“Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103 — 5 of the Code of Criminal Procedure of 1963, as amended.” (Emphasis added.) (107 Ill. 2d R. 505.)

The relevant portions of section 103 — 5 of the Code of Criminal Procedure of 1963 provide:

“(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***. * * * ‘
(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed *** and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, pars. 103 — 5(b), (f).

The supreme court amended its Rule 505 on June 26, 1987, effective August 1, 1987. The amended rule provided that “[i]f the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest.” (Emphasis added.) 113 Ill. 2d R. 505.

If the amended Rule 505, requiring trial within 120 days of arrest, applies to this cause, it is uncontested that the defendant is entitled to a discharge. Clearly, however, the supreme court did not intend for the amended rule — which became effective on August 1, 1987, and reduced the time in which to try a traffic defendant who requests a jury trial from 160 days from the date of his jury demand to 120 days from the date of his arrest — to apply where the defendant was arrested prior to the rule’s effective date. As a general rule of statutory construction, in the absence of express language imposing retroactive application, new statutes and amendments to statutes are applied only prospectively. (Economy Fire & Casualty Co. v. Green (1985), 139 Ill. App. 3d 147, 149, 487 N.E.2d 100, 102.) Rule 505, as it was in effect both at the time when the defendant was arrested (January 20, 1987) and at the time when he demanded his right to a trial by jury (July 7, 1987), required that the defendant be tried within 160 days from the date of his jury demand.

Since July 7, 1987, was the date of the defendant’s jury demand, all delay prior to July 7, 1987, is inapposite, and the defendant is entitled to a discharge only if 160 days of delay subsequent to July 7, 1987, are attributable to the State. On July 7, 1987, the court set the cause for trial on September 8, 1987, 63 days after the defendant’s demand. These 63 days are attributable to the State.

On September 8, 1987, the defendant failed to appear for trial, and the court reset the cause for December 16, 1987. This delay was clearly attributable to the defendant. In determining whether delay was occasioned by the defendant, the criterion in each case is whether the defendant’s acts in fact caused or contributed to the delay. (People v. Fosdick (1967), 36 Ill. 2d 524, 528-29, 224 N.E.2d 242, 246.) A defendant is considered to cause delay where, inter alia: (1) he requests a continuance (People v. Bivins (1981), 97 Ill. App. 3d 386, 392, 422 N.E.2d 1044, 1050); or (2) he fails to appear at a scheduled court hearing (People v. Hatch (1982), 110 Ill. App. 3d 531, 537, 442 N.E.2d 655, 659).

The defendant contends, however, that the delay occasioned by his failure to appear for trial on September 8, 1987, was tolled on October 27, 1987, and began to run against the State subsequent to that time because that was the date to which the cause had been continued. The defendant states in his brief that “[i]t is clear from the record that the period began to run again on October 27, 1987.” The defendant’s counsel also asserted this in oral argument. The record does not indicate, however, where defendant or his counsel derived this assertion. The assertion is flatly contradicted by the September 30, 1987, entry in the record sheet, which states “[c]ase set on December docket,” and it is also belied by an entry on September 16, 1987, which states that “warrant [issued when the defendant failed to appear on September 8, 1987] is ordered quashed. Clerk to set for arraignment *** on 11-4-87 2 p.m.” There is no entry in the record for October 27, 1987. Although the trial court mentioned the October 27, 1987, date in an order of April 4, 1988, this order was rendered void by the notice of appeal filed on March 31, 1988, and is dehors the record. The record thus establishes that, because of the defendant’s absence from trial on September 8, 1987, all of the delay from September 8,1987, to December 16,1987, is attributable to the defendant.

The cause was called for trial on December 16, 1987, but was continued until February 9, 1988. The cause was then delayed from February 9 to February 25, 1988, because two judges recused themselves. This delay from December 16, 1987, to February 25, 1988, totalling 71 days, is attributable to the State. Along with the 63 days of delay occasioned from July 7, 1987, to September 8, 1987, the State accumulated 134 days of delay.

Since Supreme Court Rule 505 (107 Ill. 2d R. 505) as it applies to this cause provides that every person on bail shall be tried within 160 days from the date the defendant demands trial, and only 134 days of delay not attributable to the defendant had elapsed from July 7, 1987, the time that the defendant demanded trial, the trial court’s discharge of the defendant for violation of his right to a speedy trial was erroneous. We therefore reverse the judgment of the court and remand this cause for further proceedings.

Reversed and remanded.

CHAPMAN and RARICK, JJ., concur.