author: JUSTICE HOWERTON JUSTICE HARRISON,

text:
    CHONITA L. Du BOIS, Indiv. and as Ex’r of the Estate of W. Michael Du Bois, Deceased, Plaintiff-Appellant, v. RUSSELL ROSE, Defendant-Appellee.
    Fifth District
    No. 5-89-0654
    Opinion filed June 28, 1991.

      HARRISON, J., dissenting.
    Richard A. Cary and Bill J. Milner, both of Wham & Wham, of Centraba, for appellant.
    Tracy W. Resch, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Diane Sill drove a farm tractor and trailer on Brubaker Road in Marion County at night. Both the tractor and the trailer belonged to her father, Russell Rose, the defendant. Neither tractor nor trailer had lights. Plaintiff’s decedent, W. Michael Du Bois, was killed when he crashed his car into the rear of the trailer.

Du Bois’ widow, individually and as executor of W. Michael Du Bois’ estate, brought wrongful death, survival, and family-expense actions against defendant, alleging that defendant was negligent in allowing his daughter to use his tractor and trailer without taillights, a flashing amber light, and a slow-moving-vehicle emblem when he knew or should have known that the farm tractor and trailer would be operated on a public road at night. The case was tried before a jury. At the close of plaintiff’s evidence, the circuit court granted defendant’s motion for directed verdict. Plaintiff appealed. We reverse.

“[Yjerdicts ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 514.) The opponent is also entitled to the benefit of all reasonable inferences that may be drawn from the evidence. (Wallis v. Villanti (1954), 2 Ill. App. 2d 446, 120 N.E.2d 76.) Therefore, we must examine the evidence and the legitimate inferences drawn therefrom to determine whether that evidence so overwhelmingly favors defendant, Rose, that no verdict for plaintiff could ever stand. In doing so, we are mindful that no case should lightly be taken from a jury. Bailey v. Decatur (1977), 49 Ill. App. 3d 751, 364 N.E.2d 613.

It is undisputed that Russell Rose owned the farm tractor and trailer involved in the collision and that neither was equipped with or displayed taillights, a flashing amber light, reflectors, or a slow-moving-vehicle emblem as required by the Illinois Vehicle Code. Ill. Rev. Stat. 1989, ch. 95V2, pars. 12-205.1,12-201(b), 12-205,12-709.

The precise issue presented to us by the parties and the circuit court’s ruling is whether the evidence will sustain a finding that Russell Rose allowed and permitted the tractor and trailer to be used on a public road during the period from a half hour after sunset to a half hour before sunrise without these safety devices, when he knew or should have known that the tractor and trailer would be so operated. Evidence of defendant’s knowledge appears within the testimony of Deputy Claybourn, who investigated the collision, and defendant’s testimony. Both are examined.

Deputy Claybourn testified to his interview of defendant:

“Q. Did he make any statement to you as to what the tractor and trailer was used for, what it was involved with?
A. They were hauling hay from the field.
* * *
Q. And when you were out there (at the accident scene) the following morning was Mr. Rose out there, as well?
A. Yes, he was.
Q. All right. And did you have occasion to talk or did he talk to you and you talk to him when you were doing your investigation?
A. Yes, sir.
Q. And during the course of that time with Mr. Rose did he make any further statements to you about the use of the wagon or his seeing it or knowing where it was?
A. They were making their last trip to the hay field and that was supposed to be the last trip of the evening.
Q. All right. Did Mr. Rose at the accident scene that night or the following day make any statement as to whether or not he was aware that his daughter had borrowed his tractor or wagon earlier?
A. Yes, he knew where it was, who had the vehicle.
Q. And did he say if he knew what the vehicle and the tractor wagon were being used for?
A. For hauling hay.”

Defendant, Russell Rose, was called as an adverse witness and testified:

“Q. So would it be correct, sir, whether it was on Friday evening your wife, when your wife told you or Saturday morning when you inquired, when you were aware that your daughter had the tractor, you knew that it did not have any operative flashing amber lights or a slow[-]moving[-]vehicle emblem attached?
A. If I would have thought about it, yes, I knew it.
Q. And you were, also, aware prior to the accident occurring on the night of May 23rd, 1987, that the trailer shown in those photographs did not have any operative taillights or a slow[-]moving[-]vehicle emblem on it, correct?
A. Yes.
Q. And, it is also, correct, isn’t it, that the trailer that was involved in the accident on the night of 5-23-87, did not have any flashing amber signal light on it either, did it?
A. That’s right.
* * *
Q. So, would your daughter have or whoever got the equipment from your farm to your daughter’s home and farm, would they have had to travel the Brubaker Road to get from your place to their place?
A. Yes.
Q. And if at no time did you between learning that the tractor was borrowed and the accident occurring on Saturday night call, telephone, or contact your daughter in any way did you?
A. No, I had no contact with her at all.
* * *
Q. You were aware that your daughter and son-in-law had a hay field there behind their house or had hay before the accident, didn’t you?
A. Yes, sir.
Jk * *
Q. And if necessary you’d even work after dark to try to get it (the hay) up rather than leave it lay out overnight, wouldn’t you?
A. Sometimes.
Q. And if the field would not be by your house that would necessitate driving the tractor or wagons and equipment hauling the hay from the field in after dark?
A. Well, yes.”

From the testimony set out above, it is reasonable to infer that defendant knew before the wreck that: (1) his daughter had his tractor and trailer; (2) neither tractor nor trailer had proper safety features; (3) the tractor and trailer might have to be used on Brubaker Road, a public road; (4) the tractor and trailer were being used to cut and haul hay; and (5) hay had to be taken from the field even if it meant working after dark, which would necessitate the tractor and trailer being driven on a public road after dark. These inferences prevent the direction of a verdict.

There is authority which states that evidence can lose its significance when viewed in the context of all the evidence and, therefore, be incapable of preventing a directed verdict. (Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App. 3d 707, 313 N.E.2d 631, citing People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Liberio v. Patton (1973), 9 Ill. App. 3d 955, 293 N.E.2d 415; Perec v. Little (1969), 106 Ill. App. 2d 308, 245 N.E.2d 306; see also Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 417 N.E.2d 1070.) This rule allows courts to decide whether “weak evidence has so faded in the strong light of all of the proof that only one verdict is possible of rendition.” Rosochacki, 41 Ill. 2d at 490, 244 N.E.2d at 140.

The rule that evidence can lose significance and, therefore, the power to prevent a directed verdict first was announced in Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App. 3d 707, 313 N.E.2d 631. Because facts give birth to the rule, not vice versa, the facts of the Belleville National Savings Bank case, therefore, are examined to determine the predicate to the invocation of the rule.

In Belleville National Savings Bank, plaintiff was injured in a one-car accident. He claimed he crashed into an overpass abutment when the steering wheel of the car he was driving jammed, making it not only impossible to turn to the right but also causing the steering wheel to turn on its own volition 180° to the left. An eye-witness, however, testified that after the crash, the car wheels faced straight ahead, rather than to the left. Although plaintiff denied talking to a trooper, a trooper testified that plaintiff did talk to him and admitted to having had “a couple of drinks.” Furthermore, plaintiff told him that he could not remember anything about the wreck. Plaintiff’s experts testified that although it was possible for foreign matter to jam the steering mechanism, and foreign particles, in fact, were found in a hose leading to the power steering mechanism, none, however, could have entered the mechanism, because they were too big to fit through the hose. Plaintiff’s experts also testified that after the wreck the steering mechanism could not be made to malfunction. It was on this evidence that plaintiff wanted to draw the inference that because there were some particles in the hose, it could be inferred that other particles capable of jamming the steering could have been within the mechanism. In affirming a directed verdict, the appellate court ruled that that inference could not be drawn, because plaintiff’s witnesses found nothing wrong with the steering mechanism and there was no evidence that it had jammed. The only evidence left in the case favorable to plaintiff, therefore, was plaintiff’s own testimony that the steering first had jammed and then had turned on its own volition 180° to the left. However, that testimony pretty well had been reduced to a nullity by the contradictory testimony of the trooper that plaintiff admitted to having “a couple of drinks” and was unable to remember anything about the wreck. In addition, the testimony that after the wreck plaintiff’s wheels faced straight ahead, rather than to the left, struck the second blow of this quick right- then left-fist knockout combination to the jaw of plaintiff’s case. The implication of Belleville National Savings Bank is clear. The court felt that plaintiff’s case was “bogus.” In this context, it is seen that evidence can lose its significance when it is refuted by physical evidence and admissions made by the proponent and when it is not supported by physical evidence and expert testimony. It is then that the evidence so fades in the strong light of all the proof that only one verdict is possible. People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136.

This is not the case here. In this case, the argument for a directed verdict is predicated on a claim that the testimony of Deputy Claybourn is uncertain whether defendant knew of Sill’s use of the tractor and trailer before the wreck. We think that defendant’s testimony itself clears this up. Defendant’s testimony shows that he knew either on Friday or Saturday morning that Sill had the tractor and trailer while the -wreck was on Saturday night. But in any event, to whatever extent the testimonies of both Deputy Claybourn and defendant are uncertain as to when defendant knew all the facts which would support a verdict against him, the fact remains that the uncertainty allows inferences to be drawn both ways. And, the fact still remains that neither inference has lost its significance; neither has been refuted by physical evidence; neither has been refuted by an admission; and neither is unsupported by physical evidence and expert testimony.

Viewed most favorably to plaintiff, the evidence allows inferences to be drawn that: (1) defendant, Rose, did not equip his tractor or trailer with taillights, flashing amber light, and slow-moving-vehicle emblem; and (2) defendant, Rose, either knew or should have known that the tractor and trailer would be operated on a public road at night without these safety items. These inferences form a jury question. Deputy Claybourn’s and Russell Rose’s testimonies are sufficient to constitute “any evidence tending to prove the allegations in [the] complaint.” Sherrod v. Brannock (1978), 67 Ill. App. 3d 972, 973, 385 N.E.2d 735, 736.

The defendant argues that Russell Rose owed no duty to plaintiff’s decedent simply because he was the owner of the vehicle. He correctly states that in Illinois, an owner who lends his vehicle to another for the borrower’s own purpose is not liable for the borrower’s negligence unless the borrower is the agent or servant of the owner, and if the borrower were a servant or agent of the owner, the doctrine of respondeat superior would apply and the driver’s negligence would be imputed to the owner. (See Prewitt v. Hall (1969), 113 Ill. App. 2d 198, 252 N.E.2d 43; Scott v. Valentine (1971), 132 Ill. App. 2d 101, 268 N.E.2d 485.) He explains, “liability for damage caused by the negligent act of the driver of an automobile, not arising under the doctrine of respondeat superior, does not attach against a person other than the driver, unless that person is the owner of the automobile or possesses the right to control the driving of it, and such owner or possessor is riding in the automobile at the time of the injury and negligently fails to properly control the driver.” (Palmer v. Miller (1942), 380 Ill. 256, 260, 43 N.E.2d 973, 975.) Lastly, he argues that absent respondeat superior, and absent the presence of the owner in the vehicle, the only other theory of liability that will attach to the owner due to negligence of a third person is negligent entrustment.

Negligent entrustment is a doctrine which places a duty upon an owner of a vehicle to refrain from entrusting his motor vehicle to one whose incompetency, inexperience, or recklessness is known or should be known to the owner. See Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235.

Defendant argues that the facts of this case cannot support any of the theories enumerated above so as to sustain liability for the negligence of another. We agree. That, however, is not the issue. We hasten to make clear that plaintiff’s complaint does not seek to impute negligence, nor does it claim negligent entrustment. Rather, it claims direct negligence by defendant, Russell Rose. It is his independent act that is at issue here.

Russell Rose owned a tractor and trailer that were not equipped to be used on a roadway because both lacked taillights, reflectors, a flashing amber light, and a slow-moving-vehicle emblem. In and of itself, defendant’s failure to affix, attach, or repair his tractor and trailer is not a negligent act, especially if he never intended to operate these implements upon a public road. However, the testimony at trial shows that he knew that State law required such items on farm implements if they were to be used on a public road. He knew that his tractor and trailer lacked this safety equipment. He knew before W. Michael Du Bois smashed headlong into the back of his darkened and nearly invisible tractor and trailer that his daughter had borrowed these ill-equipped farm implements. He stated that had he been present at the time his daughter borrowed the equipment, he would have warned her not to use them at night; yet, he never contacted her after he became aware that she had borrowed the equipment. Lastly, he knew that in order for the tractor and trailer to be returned to his home they would necessarily have to be driven five miles on Brubaker road, a public roadway. Under these circumstances, directing a verdict for defendant was erroneous.

The circuit court is reversed and the cause is remanded.

CHAPMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

Plaintiff’s cause of action was premised exclusively on the provisions of chapter 12 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 100 et seq.). Specifically, plaintiff sought to establish a prima facie case of negligence by showing (1) that the tractor and trailer involved in the collision were operated on the highway without displaying the slow-moving-vehicle emblem required by section 12— 709 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 709) and (2) that those vehicles had been driven or moved on the highway during the period from a half hour after sunset until a half hour before sunrise (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 201(b)) without exhibiting either the taillights or amber signal lamp required by Code sections 12-205 and 12-205.1 (Ill. Rev. Stat. 1989, ch. 95^2, pars. 12-205, 12-205.1).

There is no dispute that defendant was not directly involved in the events which culminated in the collision. He was not the driver of the tractor and trailer. He was not a passenger. He was nowhere near the scene. His sole connection with the incident was that the tractor and trailer belonged to him. Plaintiff argued that he should nevertheless be held liable because he “knowingly permitted” those vehicles to be driven or moved on the highway with the foregoing safety deficiencies. (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 101(a).) The circuit court correctly found this argument to be devoid of evidentiary support.

Prior to the accident, defendant was certainly aware that his tractor and trailer did not have the specified equipment. The mere absence of that equipment, however, does not violate the law. The unambiguous language of the statutes makes clear that the equipment is required only when a vehicle is operated on a highway, and lights are necessary only at night. Accordingly, if a tractor and trailer are simply moved over land from one field to another, the statutes invoked by plaintiff are completely inapplicable. Likewise, if they are operated during the period from one-half hour before sunrise to one-half hour after sunset, the law does not require that they display lights.

Because applicability of the statutory prohibitions turns on the circumstances under which a vehicle is operated, defendant could not possibly be held liable unless he was aware that the tractor and trailer here were going to be used at a time and in a place which would result in a violation of the law. There was no evidence that defendant had such knowledge. The testimony recited by the majority shows at most that defendant had become aware that his equipment had been used improperly sometime before the end of the night on which the collision occurred or by the following morning. That testimony does not show that defendant had knowledge that the equipment would be used in a prohibited fashion, or even that it would be used at all, prior to when the accident actually took place.

During the argument on the directed verdict motion, counsel for plaintiff actually conceded that there was no evidence that defendant knew that the tractor “was moved from his house to his daughter’s house until after it was done.” The most plaintiff’s counsel could make of the evidence was that once defendant became aware that the vehicle had been moved, he should reasonably have inferred that it would have to be returned and that he should have called his daughter prior to its return to warn her not to bring it back on the highway after dark. The problem with this argument, as the circuit court recognized, was that there was no evidence that the accident occurred when the tractor and trailer were being returned.

The majority looks past all of this and contends that the evidence as to when defendant first had knowledge of the prohibited use of the vehicles was, at least, ambiguous. Given this perceived ambiguity, the majority contends that the jury could have inferred that defendant knew in advance that the vehicles might be operated in violation of the law just as easily as it could have inferred that he had no such advance knowledge. The majority contends that the existence of two such equally possible inferences precludes the entry of a directed verdict. I disagree. What the majority fails to appreciate is that there was no factual basis in the record for selecting one of these possibilities over the other. The jury could have chosen between them only through surmise or conjecture. This is fatal to plaintiffs cause, for it is fundamental that in a negligence action the jury must base its decision on evidence, not guess or speculation. Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 560, 490 N.E.2d 995, 999.

Even if there had been evidence to support plaintiff’s claim of prior knowledge, a directed verdict was nevertheless proper. Plaintiff’s theory was that defendant “knowingly permitted” the use of the vehicles in an improper way in that he failed to warn his daughter that the tractor and trailer should not be operated on the highway without a slow-moving-vehicle emblem and that they should not be operated on a highway after dark at all since they did not have the necessary lights. In other words, plaintiff’s negligence theory was essentially that defendant had breached a duty to warn. Plaintiff, however, has not cited, and we have not found, any authority under which the “knowingly permit” language of the statute can be interpreted to embrace an affirmative obligation to warn.

In any case, the existence of such a duty still could not aid plaintiff here. Indeed, her claim would fail even under the standards set forth in section 405 of the Restatement (Second) of Torts (1965), which follows the standards set forth in section 388 of the Restatement (Second) of Torts (1965), dealing with suppliers of “chattel known to be dangerous for intended use.” Under those provisions, one who gives or lends a chattel for another to use, knowing or having reason to know that it is or is likely to be dangerous for the use for which it is given or lent, must exercise reasonable care to inform those for whose use the chattel is supplied of its dangerous condition or the facts which make it likely to be dangerous if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved. (Restatement (Second) of Torts §388, Comment on Clause (b), at 306 (1965).) This requirement was not met here. The tractor and trailer were borrowed from defendant by a relative who was, herself, a farmer. Based on the record before us, I see nothing which would have given defendant any reason to believe that she would not fully appreciate the dangers involved in operating those vehicles under the circumstances which led to the collision. The majority cites nothing which would support a contrary finding.

For the foregoing reasons, I believe that the directed verdict entered by the circuit court was entirely proper. I therefore dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    ST. FRANCIS MEDICAL CENTER, Plaintiff-Appellant, v. GEORGE W. VERNON, JR., et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0703
    Opinion filed August 2, 1991.

      William E. Aulgur, of Eldorado, for appellant.
    No brief filed for appellee.
   JUSTICE HARRISON

delivered the opinion of the court;

Plaintiff, St. Francis Medical Center, appeals from an order of the circuit court of Union County dismissing with prejudice its first amended complaint. Defendants George W. Vernon, Jr., and Marilyn Vernon have not filed an appellees’ brief in this court. However, in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495, our supreme court stated that in the absence of an appellee’s brief, if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed. We find that the present case meets these criteria and we therefore reverse.

Count I of plaintiff’s first amended complaint alleged, inter alia, “[t]hat in the year 1984 the Plaintiff, at the request of the Defendants, provided hospital care and services to Marilyn Vernon, as is shown on an itemized statement of the account of the Defendants hereto attached, marked and designated as ‘Plaintiff’s Exhibit A,’ and which, by reference thereto, is hereby made a part of this Complaint.” Plaintiff further alleged that a balance remained unpaid to plaintiff by defendants in the amount of $5,352.94 and sought recovery of that sum from defendants as husband and -wife.

Count II of plaintiff’s complaint alleged “[t]hat prior to the rendition of such services and care by plaintiff, the Defendant Marilyn Vernon made, executed and delivered unto Plaintiff her certain agreement in writing, copy of which is hereto attached, marked and designated as ‘Plaintiff’s Exhibit B,’ and which, by reference thereto, is hereby made a part of this Complaint.” Count II further alleged that by the terms of this agreement, defendant Marilyn Vernon covenanted to pay plaintiff its regular charges for the services and goods to be furnished and to pay all reasonable collection expenses, court costs, and reasonable attorney fees if her account became delinquent and was referred to an attorney. Plaintiff claimed reasonable attorney fees from defendant Marilyn Vernon in the amount of $1,784.31.

Defendants filed a motion to dismiss plaintiffs first amended complaint, asserting that count I was barred by the statute of limitations set forth in section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205), and that plaintiff’s exhibit B, the document relied upon in count II, was defective because it was undated and not executed by both plaintiff and defendant. The trial court granted defendants’ motion to dismiss without comment.

On appeal, plaintiff argues that the trial court’s order is contrary to law and should be reversed, where defendant’s motion sets forth no grounds for dismissal with prejudice of plaintiff’s complaint. Plaintiff argues that although the hospital care and services were rendered in 1984, the five-year limitation on actions on unwritten contracts provided in section 13 — 205 presents no bar where plaintiff’s exhibit A shows payments were received on the account through February 1990.

It is clear that part payment of a debt tolls the statute of limitations such that it commences to run from the date of last payment. (Department of Mental Health v. Mitchell (1975), 25 Ill. App. 3d 988, 991, 324 N.E.2d 94, 96.) It is also true, as plaintiff claims, that exhibits attached to the complaint become part of the pleadings, and facts stated in such exhibits are considered the same as having been alleged in the complaint. (Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 747, 371 N.E.2d 173, 175; Hazel Crest Federation of Teachers, Local 2077 v. Board of Education of School District 152½ (1990), 206 Ill. App. 3d 69, 80, 563 N.E.2d 1088, 1095.) Here, plaintiff’s exhibit A, an itemized statement of defendants’ account, was attached to and thereby made part of plaintiff’s complaint. Thus, the payment in February 1990 caused the five-year statute of limitations to run from that date, and the filing of plaintiff’s first amended complaint in May 1990 was within the period.

Plaintiff also correctly asserts that the claimed “defects” in the contract upon which count II is predicated do not make it unenforceable against defendant Marilyn Vernon. The fact that the contract, designated as plaintiff’s exhibit B, was executed only by defendant Marilyn Vernon is not fatal. Where a contract is enforced on the basis of a single signature, it must generally be signed by the party to be charged under the contract and delivered to the nonsigning party, who indicates acceptance by performing. (Glabman v. Bouhall (1980), 81 Ill. App. 3d 966, 969, 401 N.E.2d 990, 993.) In the instant case, the record shows that defendant Marilyn Vernon signed plaintiff’s exhibit B covenanting to pay plaintiff for services and goods rendered and for all reasonable collection costs should the account become delinquent, and plaintiff accepted said contract by providing hospital care as listed in plaintiff’s exhibit A.

Additionally, the absence of a date on plaintiff’s exhibit B does not, of itself, invalidate the written agreement. A written agreement is valid, although undated. (See Pinson v. Moffat (1952), 209 Ga. 7, 70 S.E.2d 359; 17 C.J.S. Contracts §61, at 730-31 (1963).) Therefore, the claimed defects in plaintiff’s exhibit B would not support a dismissal with prejudice of count II.

As our supreme court suggested in First Capitol, we do not feel that this court should be compelled to serve as an advocate for the appellee or that we should be required to search the record for the purpose of sustaining the judgment of the trial court. (First Capitol, 63 Ill. 2d at 133, 345 N.E.2d at 495.) In this case, plaintiff’s brief supports its challenge to the propriety of the trial court’s order of dismissal with citation to the record and case authority. We believe this argument presents a prima facie case for error. Under these circumstances, we believe that reversal is required.

For the reasons set forth herein, the judgment of the circuit court of Union County is reversed and this case is remanded to that court for further proceedings.

Reversed and remanded.

RARICK, P.J., and WELCH, J., concur.


text:
    E.J. BACH et al., Plaintiffs-Appellants, v. THE COUNTY OF ST. CLAIR et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0485
    Opinion filed August 5, 1991.

      Thomas A. LeChien, of LeChien, LeChien & Associates, Ltd., of Belle-ville, for appellants.
    No brief filed for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, E.J. Bach, Andrew Thomure, Cyndy Johnston, and Greg Wise, appeal from a judgment of the circuit court of St. Clair County which (1) declared that chapter 42 of the St. Clair County Revised Code of Ordinances, as amended in 1988, was not invalid and (2) denied plaintiff Thomure’s claim that St. Clair County had effected a taking of his property without paying him just compensation. For the reasons which follow, we affirm in part and reverse in part.

Chapter 42 of the St. Clair County Revised Code of Ordinances, which governs zoning, contains detailed requirements for obtaining special use permits for the location of mobile homes within the county. Under section 42.06(b)(65) of chapter 42, as amended in 1988, a mobile home is defined as:

“A structure designed for permanent habitation and so constructed as to permit its transport on wheels, temporarily or permanently attached to its frame or transported on flatbed or other trailers and/or the section(s) are built upon detachable running gears, such as undercarriages, springs, axles, wheels and/or hitches designed to permit their removal or remain attached at the location it is to be installed, and such structure is transportable from its place of construction or fabrication to the location, at which it is intended to be a permanent habitation and designed to permit the occupancy thereof as a dwelling place for one (1) or more persons. This definition shall include but not be limited to a fabricated and transported building unit designed to be used by itself or to be incorporated or joined with similar units at a building site for the purpose of making a dwelling place and does not [sic] comply with the BOCA National Building Code, 10th Edition, 1987, the National Electric Code, and the Illinois State Plumbing Code.”

The plaintiffs in this case each own structures which constitute “mobile homes” under the foregoing definition. In 1988, plaintiff Thomure filed a petition with the St. Clair County Zoning Board of Appeals requesting a special use permit to allow him to place his mobile home on property which was not zoned for such structures. That petition was denied under authority of section 42.131(f) of chapter 42, which provides that all special permits issued for the location of a mobile home shall be conditioned on the mobile home having “a minimum width of the main body as assembled on the site of not less than 14’, measured across the narrowest portion and meetpng] the [United States Department of] Housing and Urban Development [HUD] Federal Code known as the National Manufactured Home Construction and Safety Standards.” The record indicates that Thomure’s mobile home is, in fact, only 12 feet wide and that it was manufactured prior to promulgation of the HUD standards.

Plaintiffs Wise and Johnston also own a mobile home which is only 12 feet wide and which predates the HUD standards. They, too, were denied a special use permit under section 42.131(f) of chapter 42. Plaintiff Bach’s situation is somewhat different. Her application for a special use permit was denied as well, but it was rejected solely because her home does not meet section 42.131(f)’s width requirement. Unlike the mobile homes owned by Thomure and Wise and Johnston, her mobile home is relatively new and it does comply with the HUD standards.

Following denial of their applications, plaintiffs Bach and Thomure filed separate actions in the circuit court of St. Clair County seeking a declaratory judgment that chapter 42 is illegal and void because, inter alia, the ordinance bears “no relation to the public health, safety, welfare or morals” and constitutes “an arbitrary and unreasonable exercise of legislative power.” Plaintiff Thomure further contended that chapter 42 should be declared illegal and void because it violates the equal protection clause of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and the Federal Fair Housing Act (42 U.S.C.A. §3601 et seq. (West 1991)). In addition, Thomure alleged that the denial of his petition for a special use permit under chapter 42 resulted in a “taking” of his property for which he was entitled to be “compensated for the length of time that he has barred [sic] from using his mobile home as a residence within St. Clair County.”

Plaintiffs Wise and Johnston were allowed to join as plaintiffs in Bach’s action, and that action was consolidated with the suit brought by Thomure. Following a hearing, the circuit court entered a judgment in these consolidated cases which declared that chapter 42, as amended, “bears a direct relationship to the public health, safety and welfare of the public, is not an unreasonable exercise of legislative power and is not violative of the constitutional rights of the people of St. Clair County.”

Shortly thereafter, plaintiffs filed a post-trial motion attacking this judgment on the grounds that it addressed only plaintiffs’ request for declaratory relief and failed to consider their claims for damages. Plaintiffs advanced this argument even though not all of the plaintiffs had actually asked for damages. As our discussion has indicated, the only request for monetary relief was contained in plaintiff Thomure’s claim that he was subjected to an unconstitutional taking of his property without payment of just compensation. In any case, the circuit court subsequently modified its judgment to specify that it was denying the relief requested by all plaintiffs as to all counts. Plaintiffs now appeal.

In considering plaintiffs’ appeal, we have been forced to proceed without the aid of a brief or argument from the county. Our supreme court has made clear that this court may not simply reverse the judgment of a trial court pro forma even where, as here, the party who prevailed in the trial court has not appeared or filed a brief as supreme court rules require. The theory behind this rule is that a “considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal.” (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131, 345 N.E 2d 493, 494.) On the other hand, we are not obliged to serve as an advocate for the appellee or to search the record for the purpose of sustaining the judgment of the trial court, and if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the trial court’s judgment may be reversed. (63 Ill. 2d at 133, 345 N.E.2d at 495.) In this case, the plaintiffs’ brief fails to demonstrate such prima facie reversible error with respect to the claims of plaintiffs Thomure and Johnston and Wise.

These plaintiffs sought a declaratory judgment that chapter 42 is illegal and void because it bears “no relation to the public health, safety, welfare or morals and constitute [sic] and [sic] arbitrary and unreasonable exercise of legislative power.” It is axiomatic that a zoning ordinance is presumed valid, and a party attacking such an ordinance has the burden of overcoming this presumption with clear and convincing evidence that the ordinance, as applied to the property in question, is arbitrary and unreasonable, and has no substantial relation to the public health, safety, morals, or welfare. (Bankers Trust Co. v. St. Clair County Zoning Board of Appeals (1990), 197 Ill. App. 3d 431, 433, 554 N.E.2d 744, 745.) Ordinances which are defective under this standard cannot stand because they offend the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and section 2 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §2). See City of Chicago v. Vokes (1963), 28 Ill. 2d 475, 478-79, 193 N.E.2d 40, 43-44, appeal dismissed (1964), 377 U.S. 124,12 L. Ed. 2d 174, 84 S. Ct. 1141.

The record before us shows that plaintiffs Thomure and Wise and Johnston plainly failed to meet their burden of establishing that the St. Clair County ordinance was unconstitutional. As previously indicated, these plaintiffs were denied special use permits under section 42.131(f) of chapter 42, which specifies that special use permits will only be granted for mobile homes which are at least 14 feet wide and which meet certain standards promulgated by the Department of Housing and Urban Development. Plaintiffs did not dispute that it was permissible for the county to require mobile homes to comply with these HUD standards. Their contention, instead, was that the ordinance should be declared invalid because there is no rational basis for distinguishing their narrower mobile homes from mobile homes which are 14 feet wide or wider.

As shall be discussed more fully later, there is considerable merit to this claim. However, the 14-foot requirement is of no practical consequence to these particular plaintiffs. Even if their mobile homes were the proper width, they would still not be eligible for a special use permit because they were not shown to meet the standards required by HUD. Those standards did not go into effect until 1976. However, Thomure’s mobile home is a 1973 model and the mobile home occupied by Wise and Johnston is a 1972 model.

The ability of these plaintiffs to locate their mobile homes in the county would thus be unchanged regardless of the validity or invalidity of the 14-foot requirement. Accordingly, resolution of whether the 14-foot requirement is valid will not aid in the termination of any part of the controversy between them and the county. This is fatal to their claim for declaratory relief, for in order for a party to obtain such relief, “[t]here must be an actual controversy and the party seeking relief must possess a personal claim, status or right which is capable of being affected.” Cottage-63rd Street Currency Exchange v. Callahan (1982), 104 Ill. App. 3d 586, 589, 432 N.E.2d 1258, 1260; see also Township High School District 203 v. Village of Northfield (1989), 184 Ill. App. 3d 367, 371-72, 540 N.E.2d 365, 368-69 (where party’s position would be unchanged regardless of validity or invalidity or challenged zoning ordinance, party lacks standing to seek declaratory judgment that ordinance is invalid).

For the same reasons, we must reject the additional claim by these plaintiffs that chapter 42 is arbitrary and unreasonable because it imposes more stringent requirements on mobile homes which comply with the HUD standards than it does on mobile homes which satisfy the standards set forth in the BOCA National Building Code. The specific disparate treatment of which plaintiffs complain is that homes which comply with the HUD standards are forced to obtain special use permits, whereas homes which comply with BOCA National Building Code standards are, by definition, not mobile homes at all and are therefore exempt from any special use permit requirement.

The problem with this argument, as with plaintiffs’ challenge to the 14-foot requirement, is that while there seems to be no question that the mobile homes owned by plaintiffs Thomure and Wise and Johnston do not meet the BOCA standards, there is no evidence that they meet the HUD standards either. Accordingly, even if we were to conclude that mobile homes which comply with the HUD standards should be treated the same as those which satisfy the BOCA code, these plaintiffs would be completely unaffected. As to them, the issue is entirely academic. Under the authority previously cited, plaintiffs Thomure and Johnston and Wise therefore have no standing to obtain a declaratory judgment regarding this matter.

Finally, plaintiffs Thomure and Wise and Johnston complain of that portion of section 42.131 of chapter 42 which provides that “[s]ection 42.97 thru [sic] 42.97.5 of this Code shall apply with respect to the advisory report issued on all special permits relating to mobile homes.” Plaintiffs object to this provision because sections 42.97 through 42.97.5 do not exist. They were never enacted. The record shows, however, that this particular sentence in the ordinance has also been ignored by the county. It is mere surplusage. Its presence in the ordinance has had absolutely no impact on plaintiffs, and they do not contend otherwise. Plaintiffs cite no authority which suggests that the presence of unnecessary language such as this in a statute provides any grounds for declaring the statute invalid.

For the foregoing reasons, the circuit court correctly determined that chapter 42 is not invalid as applied to plaintiffs Thomure and Wise and Johnston. The circuit court was likewise correct in rejecting Thomure’s separate claim that chapter 42, as amended in 1988, violates the equal protection clause of the fourteenth amendment (U.S. Const., amend. XIV). As with his previous claims, Thomure’s equal protection argument is founded on the proposition that chapter 42 is arbitrary and unreasonable to the extent that it differentiates (1) between mobile homes which are at least 14 feet wide and those which are less than 14 feet wide and (2) between mobile homes which meet the BOCA standards and those which merely meet the HUD standards. As we have previously indicated, however, Thomure’s mobile home does not even meet the HUD standards, and he does not dispute that the county is fully entitled to make compliance with those standards a precondition to placement of a mobile home on property which was not previously zoned for mobile homes. Indeed, he asserts that those standards should be controlling to the exclusion of all others. Thomure would therefore not be entitled to place the home on his property even if chapter 42 did not make the distinctions of which he complains. Under these circumstances, we fail to see how Thomure himself can argue that the ordinance is unconstitutional for imposing these requirements. See United States v. Raines (1960), 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529, 80 S. Ct. 519, 522 (“one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or situations in which its application might be unconstitutional’ ’).

There is likewise no merit to Thomure’s claim that chapter 42 violates the Federal Fair Housing Act (42 U.S.C.A. §3601 et seq. (West 1991)). That act prohibits various forms of discrimination related to housing, real estate transactions, and brokerage services based on “race, color, religion, sex, familial status, or national origin.” (42 U.S.C.A. §§3604, 3605, 3606 (West 1991).) Thomure, however, adduced no evidence that chapter 42 had the intent or effect of discriminating against any of these specified groups here.

Thomure also failed to establish that the denial of his application for a special use permit resulted in a taking of his property for which he is entitled to but has not received just compensation. Thomure’s argument on this point is somewhat unclear. In his brief on appeal, however, he seems to contend that the only feasible use for the lot he owns in St. Clair County is as a site for his mobile home, but the 14-foot-width requirement imposed by section 42.131(f) precludes him from placing his mobile home there. As a result, he reasons, the application of section 42.131(f) to him has deprived him of the “essential use” of his property, for which he is entitled to compensation. As we have repeatedly noted, however, Thomure would not be permitted to place the mobile home on his lot even if it did meet the 14-foot requirement, for there is no evidence that it meets section 42.131(f)’s other requirement, namely, compliance with the HUD standards.

While we affirm the circuit court’s judgment as to plaintiffs Thomure and Wise and Johnston, we must reverse as to plaintiff Bach. Unlike the other plaintiffs, Bach’s mobile home did comport with the HUD guidelines, and there is no dispute that the only reason that she was denied a special use permit was that her mobile home did not meet the width requirement of section 42.131(f). At trial, the director of land development for St. Clair County admitted that there was no rational basis for the distinction drawn by the ordinance between mobile homes which were at least 14 feet wide and those which were less than 14 feet wide. That portion of the ordinance should therefore have been declared null and void as to plaintiff Bach. We should note, however, that the invalidity of that one section does not mandate invalidation of all of chapter 42. The invalidity of one part of a statute does not affect the validity of the remainder unless it is clear that the legislature would not have enacted the law without the invalid portion. (People v. Farmer (1986), 148 Ill. App. 3d 723, 726, 499 N.E.2d 710, 712.) In this case, there is nothing to suggest that the St. Clair County Board would not have enacted the remaining restrictions on mobile homes if it could not have included the 14-foot requirement.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed as to the claims of Thomure and Wise and Johnston. It is reversed as to Bach. Pursuant to our authority under Supreme Court Rule 366 (134 Ill. 2d R. 366), we hereby declare the 14-foot-width requirement of section 42.131(f) of chapter 42 of the St. Clair County Revised Code of Ordinances to be null and void under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and section 2 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §2).

Affirmed in part; reversed in part.

RARICK, P.J., and WELCH, J., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS COOK, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0598
    Opinion filed August 8, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

A jury found the defendant, Thomas Cook, guilty of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)), rejecting his assertion of the presence of the mitigating factors of both serious provocation and unreasonable belief of justification. The trial court sentenced him to a term of 25 years in the Department of Corrections. The defendant appeals, raising five issues for our review: (1) whether the statutory procedure requiring the defendant to prove the existence of mitigating factors in order to be convicted of second-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2), rather than first-degree murder, is unconstitutional; (2) whether the defendant’s constitutional right to equal protection of the law was violated where the State used four of six peremptory challenges to exclude four of five black persons from the jury; (3) whether the defendant proved by a preponderance of the evidence the mitigating factor of provocation in order to lessen the offense from first- to second-degree murder; (4) whether the trial court erred “when it allowed the jury to deliberate without written instructions”; and (5) whether the trial court erred when during sentencing it relied on the death of the victim as an aggravating factor.

Concerning his constitutional challenge, he contends that, because the defendant bears the burden of proving a mitigating factor in order to be found guilty of second-degree murder instead of first-degree murder, sections 9 — 1 and 9 — 2 of the Criminal Code of 1961 (hereafter referred to as the Code) violate the due process clause of the United States Constitution. However, the second-degree murder statute has been challenged on due process grounds and has withstood the challenge. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) After that challenge the defendant in People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221, alleged that the statute violated due process because it impermissibly shifts the burden of proof to the defendant. Like the court in Jerome, we agree with the result reached in Buckner.

The court in Jerome explained the changes wrought by the amendment of the Criminal Code of 1961 in 1987:

“The Criminal Code of 1961 was amended in 1987, and the offense of voluntary manslaughter was eliminated and replaced by that of second-degree murder. (Pub. Act 84 — 1450, §2, eff. July 1, 1987.) Under the new statute, a person commits second-degree murder when he commits first-degree murder and either of the mitigating factors (provocation or unreasonable belief) is present. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) When a defendant is on trial for first-degree murder and evidence of either mitigating factor is presented, the burden of proof is on the defendant to prove the mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second-degree murder; the State still has the burden of proving all of the elements of first-degree murder, however. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c); see also People v. Shumpert (1989), 126 Ill. 2d 344, 351-52[, 533 N.E.2d 1106] (discussing differences between voluntary manslaughter and second-degree murder statutes).” (206 Ill. App. 3d at 433-34, 564 N.E.2d at 224-25.)

Under the old homicide statute, the State had the burden to prove, beyond a reasonable doubt, the absence of the factor in mitigation.. People v. Shumpert (1989), 126 Ill. 2d 344, 533 N.E.2d 1106; People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.

The due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073.) On the basis of In re Winship, Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, and Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098, the Buckner court determined that the Illinois statute is constitutional, observing that section 9 — 2 of the Code does not require the defendant to prove any elements of first-degree murder and noting that the jury does not even reach a consideration of second-degree murder until and unless it determines that the State has proved first-degree murder beyond a reasonable doubt. The court stated further in Buckner that section 9 — 2 does not present the constitutional problems found in the Mullaney statutes and that section 9 — 2 is similar to statutes approved by the United States Supreme Court in both Patterson and Martin.

In Mullaney, upon which the defendant herein relies, the Supreme Court held that the States cannot shift to the defendant the burden of proving an element of the crime charged. Later, in Patterson, the Supreme Court approved a New York statute that required a defendant charged with second-degree murder to prove by a preponderance of the evidence an affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. In Patterson, as in the instant case, the prosecution was required to prove all the elements of the crime charged; the burden then shifted to the defendant to prove the elements of an affirmative defense. The Supreme Court in Patterson declined

“to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” Patterson, 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.

The instant defendant argues that this case is “clearly analogous” to Mullaney because the defendant is “required to prove an affirmative defense or mitigating factor which is inconsistent with, or would negate an element of[,] the offense charged.” The defendant in Jerome likewise contended, without success, that the present statutory scheme is analogous to that struck down by the Supreme Court in Mullaney, urging that it violates due process by shifting the burden to the defendant to prove second-degree murder. Relying upon Patter son, the court in Jerome pointed out that under the statutory scheme in Mullaney, lack of provocation was an element of the crime of murder in Maine, whereas lack of provocation is not an element of the offense of first-degree murder in Illinois. Thus, the court in Jerome concluded, the Illinois statute does not suffer the constitutional infirmity present in the Maine statute considered in Mullaney.

As in Jerome, the instant defendant’s argument relies heavily on People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335. The defendant in Jerome contended, as the defendant here asserts, that Hoffer stands for the proposition that the mental states involved in murder and voluntary manslaughter are inconsistent. As a result, the defendant in Jerome concluded and the instant defendant argues, the mental states in first- and second-degree murder are inconsistent as well. Since “heat of passion” and the element of “malice” in the Maine statute were found to be impermissibly inconsistent in Mullaney, the defendant maintains that the Illinois statute is, likewise, unconstitutional. The court in Jerome found the defendant’s reliance on Hoffer misplaced:

“The inconsistency identified in Hoffer was in the guilty verdicts. The jury had been instructed that, in order to find the defendant guilty of murder, they had to find that he had not had an unreasonable belief in justification at the time of the killing; they were also instructed that, in order to find defendant guilty of voluntary manslaughter, they had to find that he had had that unreasonable belief; the jury returned guilty verdicts on both offenses. Under the instructions given in that case, the jury had found that the defendant both did and did not ni ve an unreasonable belief in justification; the findings were logically inconsistent. Under those instructions, the mental states for murder and involuntary manslaughter were inconsistent. (106 Ill. 2d at 195[, 478 N.E.2d 335].) There is, however, no inherent inconsistency between the mental states for first- and second-degree murder.
When a defendant is charged with first-degree murder, the State is required to prove death, causation and intent (or knowledge). (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) The defendant then has the opportunity to prove provocation or unreasonable belief in justification to reduce the offense to second-degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) The existence of provocation or an unreasonable belief in justification, however, will not diminish or negate any of the proved elements of first-degree murder. The mitigating factor is a separate issue the existence of which the State is willing to recognize as a circumstance affecting the degree of culpability or the severity of punishment. See Patterson, 432 U.S. at 206-07, 53 L. Ed. 2d at 289-90, 97 S. Ct. at 2325.” Jerome, 206 Ill. App. 3d at 436, 564 N.E.2d at 226.

For the reasons expressed, following Buckner and Jerome, we hold that section 9 — 2 of the Code, which requires a defendant charged with first-degree murder to prove a mitigating factor by a preponderance of the evidence in order to be convicted of second-degree murder, does not violate the due process clause of the United States Constitution.

With respect to the second issue raised for review, whether the defendant’s constitutional right to equal protection was violated by the State’s use of four out of six peremptory challenges to exclude four out of five black persons from the jury, he contends that the State failed to provide race-neutral reasons for excluding the four black veniremen in violation of the requirement of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351. The United States Supreme Court held in Batson that a prosecutor cannot exercise peremptory challenges to exclude veniremen solely on account of race and that a defendant may show such purposeful discrimination based solely on the facts in his own case. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360.) Batson requires that a defendant first establish a prima facie case. Once a prima facie case of discrimination is established, the State must come forward with race-neutral reasons for excluding the black veniremen. (McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.) While the reasons need not rise to the level of a challenge for cause, a mere assertion of nondiscriminatory motive or of good faith in exercising challenges will not rebut a prima facie case. (McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.) Under Batson, the neutral explanation required of the State for excluding each black venireperson must be related to the particular case to be tried. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) Once the State has come forward with its reasons for striking the venirepersons, the trial court must then determine whether the explanations are sufficient to rebut defendant’s prima facie case. (Harris, 129 Ill. 2d 123, 544 N.E.2d 357.) To do so, the trial court must make a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case. (Harris, 129 Ill. 2d 123, 544 N.E.2d 357.) Because this determination is a matter of fact, turning largely on questions of credibility, the findings of the trial court must be afforded great deference and will be reversed only if they are against the manifest weight of the evidence. (Harris, 129 Ill. 2d 123, 544 N.E.2d 357.) If a prosecutor excuses one person and not another, it does not follow that this in itself shows that the prosecutor’s explanation was pretextual. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) The exclusion of even one minority venireperson on account of race is unconstitutional and would require reversal of the defendant’s conviction. Harris, 129 Ill. 2d 123, 544 N.E.2d 357.

In the instant case the trial court found that the defendant made a prima facie showing of racial discrimination “based on the fact that there were five blacks passed on with the exercise of peremptory challenges and that the State removed four of those blacks.” The State tendered the following statement as its race-neutral rationale for the exercise of the peremptory challenges in question:

“Your Honor, at this time regarding Juror Number 4 — and if I get out of order here, just let me know — but regarding Mr. Leddrew Johnson. He was excused by me based on his age, the fact that he was a man and the fact that he was single. That was likewise the reason why I excused Juror Number 6 in this case who was a white gentleman. Regarding I believe the next one was Elizabeth Ford. I was concerned about the fact that she had read about the case in the newspaper and on TV. And that along with the fact that she was a little bit older a woman than I would have preferred was the reason why I excused her.
Regarding Juanita Brown. She was unemployed. That was a factor I took into consideration and I was also thinking that their name is familiar to me and I don’t know if I have encountered that in conjunction with reading other police reports that I was concerned that there may be something there that she had some association with being involved in criminal activity. That was my main concern because the name did sound very familiar for me and that was the reason why I excused her.
Regarding Mr. Denzmore, he was excused based on his age and primarily because in answering questions on voir dire [sic], he did not sound to me to be at all intelligent. He was, I felt, fairly inarticulate and I had difficulty in understanding what he said and excusing him was based on the fact that I had difficulty in understanding what he said in talking about the names of his children and how old they were.
I don’t know if there was — I think that is it.”

The State noted further that it had tendered Phyllis Henry, a black venireperson, who served as a member of the jury panel.

By way of response the defense stated in relevant part, “Your Honor, I would only like to point out for the record, two of the individuals accepted by the State, Juror 75 being John Eise, his age reflected on the sheet I believe is 67 years old and Juror Number 239, Ray Steinwagner, his age is reflected as being 52.” To this the State responded:

“Regarding Mr. Eise, I would point out that he had prior jury service. He sat on a criminal case and returned a guilty verdict. I would note that he does have a relative who is a Belleville Police Officer and he has two girls who are close in age to the age of the victim in this case. I felt there were positive factors to be taken into consideration on him. With Mr. Steinwagner, he indicated that he knew Steve Mathis [a witness for the State] and I felt that may be of some benefit to me.”

Finding that the State had met its burden of providing neutral, nonracial reasons for excusing the four veniremen, the trial court denied the defendant’s motion to discharge the panel on the basis of a Batson violation:

“I believe that the State has presented the Court with neutral nonracial reasons for exercising those particular challenges which it did. Specifically the Court’s observations with respect to Ruben Denzmore were in keeping with Miss Porter’s [assistant State’s Attorney’s] observations that his educational level certainly appeared to be very limited. I would note on the printout sheet that is given here with the panel, it is noted that he has a fifth grade education. That would probably be somewhat in keeping with the level of education that he exhibited in the courtroom. I was also having trouble understanding what he was saying when he responded to questions that were proposed to him by the Court.
I do not believe that the State based the challenges on racial considerations and I will deny the motion to discharge the panel based on any violation of the Batson case.”

The defendant contends that the trial court’s finding that the State had provided race-neutral reasons for its exclusion of black venirepersons was in error and that the panel, therefore, should have been discharged. The defendant argues, inter alia, that “at least three of the blacks excluded possess similar characteristics to some white males who were not excluded.” In Young the supreme court explained that, although a part of the prosecutor’s explanations may have been applicable to white jurors who were not challenged, the white jurors may have, in some other respect, exhibited a trait the prosecutor reasonably could have believed would make him or her desirable as a juror. In Harris the court noted that the converse is true as well, that is, although a minority venireperson may otherwise possess all of the traits which the State is looking for in a juror, he may possess an additional trait that makes him undesirable. The defendant argues further that “[t]he case at hand is similar to Batson in that it involves an interracial crime, a black defendant and a white victim. Obviously, this is a situation especially prone to prejudice.” Bearing in mind the arguments advanced by the defendant and the applicable principles of law, we have carefully examined the entire record pertaining to voir dire. The record shows that the findings of the trial court were not against the manifest weight of the evidence. Hence, the trial court did not err in denying the defendant’s motion.

With reference to the third issue he presents for review, the defendant contends that he proved the mitigating factor of provocation by a preponderance of the evidence and asks this court to reduce the offense of which he was convicted to second-degree murder. Section 9 — 2 of the Code provides in pertinent part:

“(a) A person commits the offense of second[-]degree murder when he commits the offense of first[-]degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).)

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The evidence here is neither improbable nor unsatisfactory. The record reveals that the principal impediment to the defendant’s success in persuading the jury of the presence of either mitigating factor was the variety of accounts he gave prior to trial as to how the victim was shot.

Much of the evidence was undisputed. Dr. Michael Graham, a forensic pathologist who had performed an autopsy upon the victim, Margaret Shepard, testified that she had two categories of wounds: (1) two gunshot wounds to the back of the head on the right and (2) “a bunch of scrapes and bruises,” which were all superficial. All of the wounds appeared to be fresh. The gunshot wounds of the head caused the victim’s death. All of one bullet and part of another were recovered from her brain. Dr. Graham testified that “well above 90 percent” of people who sustained such gunshot wounds “would become unconscious essentially immediately.” The witness indicated that neither gunshot wound was a “contact” wound: “In other words, the gun was not actually being held firmly against the scalp when the trigger was pulled. Other than that, I can’t make any comments on range. It could be as far as the bullet could travel outside of contact range.” The gun could, he said, have been close to the victim’s skull but it would not have been in contact with it. The witness described the other wounds as follows:

“In addition to the gunshot wounds, there were multiple bruises and scrapes primarily on the neck. There was also some bruising on the arms. There were some scrapes and bruises on the right hand and thumb around the base of the first finger and on the thumb. There was also a seven[-]inch scratch on the top front outside corner of the right thigh as well as some small scrapes and bruises on the knees.”

The witness stated that the victim’s lips also were bruised and torn.

The gun from which the bullets had been fired was found by a laboratory technician, William Brandon, “between the bed mattresses” in the master bedroom. Thomas Gamboe, Jr., a forensic scientist specializing in the area of firearm toolmark identification, testified that every time this gun fires the trigger has to be pulled and that the hammer block, which serves as the safety mechanism on the weapon, appeared upon testing to be operative.

The victim and the defendant lived together in a trailer. Just before midnight of November 22, 1988, officials received an emergency call concerning a shooting in the trailer. Steve Mathis, a deputy in the St. Clair County sheriff’s department, testified that upon his arrival the defendant, when asked what had happened, “stated that he came home and found his girlfriend in bed; that she had been shot or she had shot herself.” The witness testified further:

“At that time, we asked him where the weapon was and he stated it might be in the hallway. As to why it was in the hallway, Sergeant Cooper asked him why it was in the hallway he stated that is where she shot herself. There was an argument and she shot herself. And we couldn’t locate the weapon anywhere.”

The witness said that the defendant indicated that he and the victim had an argument. The witness said further that the defendant was then apprised of his Miranda rights and was asked “the whole sitúation of what happened,” to which question the defendant responded that “he came home; that his girlfriend met him at the front door; and that they walked into the hallway and started arguing; and that she pulled the weapon up and shot herself.” Later, the witness testified, the defendant

“stated in the interview room three that she met him at the front door. His mother had dropped him off. They were walking into the hallway. They were arguing. She said she was tired of it. She wouldn’t put up with it no more. She pulled a weapon up. He said a [,]22 caliber. They started struggling over the weapon and he said it went off three or four times.”

The witness stated that he believed the defendant “did have a scratch mark on the side of the neck,” which was not bleeding. On cross-examination this witness stated that the defendant had said that the gun “was in the hallway. It should be in the hallway. He didn’t know for sure where it was.” The witness never saw a gun either in the hallway or in the trailer.

A paramedic, Earl Bohn, testified that upon knocking on the door, in response to the emergency call, “[w]e was met by a black male who said his girlfriend had shot herself.” They found the victim, the witness said, “lying on the floor.” Only the victim and the defendant were in the trailer when the witness arrived there. The victim was at that time apparently still alive but unconscious and died some hours later.

Richard Scott, a sergeant for the St. Clair County sheriff’s office, interviewed the defendant at about 3 a.m. on November 22, 1988. At that time he observed no physical injuries on the defendant’s person. The written statement the defendant made to this witness was admitted into evidence and read into the record:

“On Monday, November 21, 1988, I, Thomas E. Cook, was dropped off at home by my mother whose home I had been at visiting. I believe it was around 9:30 p.m. I knocked on the door and after a few moments, my live-in girlfriend Margaret Shepard answered the door. Once I entered the house, Margaret and I got into an argument because I didn’t come straight home after work. We began to yell at each other while standing in the living room. Then we went into the hallway by our bedroom. As we yelled at each other, Margaret pulled out a [.]22[-] caliber gray[-]in[-]color handgun and told me she wasn’t going to take it anymore. She pulled the hammer back on the gun and when I observed this, I grabbed a hold of the gun. We began to fight over the gun and after a few seconds the gun fired
several times. I don’t know that the gun was in my hand or hers or both of our hands.
She then fell to the floor in the hallway. I saw blood on her and on the floor but I didn’t know if she was shot. I then pulled her into the bedroom where I started pouring water all over her. She was not waking up so I dialed 911 ***. I stayed home until the ambulance and police arrived. I do not know what happened to the gun but I believe it is still somewhere in the house.”

Michael Weaver, a corrections counselor, testified that the defendant had talked to him as follows:

“We met in an interview room when we spoke there. And I inform all the detainees at the present time that if they are going to hurt themselves, if they tell me about the crime, then the appropriate authorities will have to be alerted to that fact. And we talked about the crime that he committed that particular time of how he walked away from — there was a struggle for a weapon, for a gun and he somehow got the gun, walked down a hallway or a room and turned and fired the gun and it went off accidentally a few or several times.”

The defendant had, the witness said, acted the incident out for him: “He walked away. As he walked, he got up from the chair that was sitting across from me from the table and he walked towards the door in the interview room and he put his hands out and he said he turned and fired.” On cross-examination the witness indicated that the defendant had stated that the victim had the gun first.

The defendant did not testify or call any witnesses.

The evidence speaks for itself. The jury could well have believed that no serious provocation had occurred. In the absence of any basis in the record for setting aside the defendant’s conviction for first-degree murder, we do not disturb it.

We turn to the fourth issue for our review, that pertaining to the jury’s deliberations. At the hearing on defendant’s post-trial motion, the trial court stated its recollection of events relating to the giving of oral and written instructions to the jury:

“[M]y recollection is simply that when I was reading the instructions to the jury, I noted an error in one of the written instructions. I modified it orally when I read to the jury that particular instruction and subsequent to that, I had that particular instruction retyped and then it was given to the jury. So I just want to clear up the record in that regard.
My understanding is clearly that there was absolutely no difference from the instructions that were read to the jury and the instructions they received in written form.”

It is undisputed that the oral instructions given by the trial court were identical to the written ones received by the jury after they had retired to deliberate. The trial court observed further that

“[cjoncerning the period of time between when the jury was instructed and the jury returned its verdict, the docket minutes filed on July 12th would indicate that the jury retired to deliberate its verdict at 2:47 PM and at 3:50 PM the jury returned its verdict. Some period of one hour. I understand that the defense counsel’s time frame that he is using is from the time that all of the written instructions were given to the jury and return, and I think it was probably a little bit more than certainly 10 minutes but it was certainly less than the period of one hour.
But nonetheless, during that period of time, I would want to note that while the jury did not have the written instructions for some period of time, they had been orally instructed as to the law and they had in my estimation properly been instructed as to the law.”

Earlier defense counsel had described his recollection of these events:

“[M]y recollection of the events was we read instructions to the jury which had the deleted element from the patterned jury instruction and at that point I went down to my office, spoke ■with Bonnie Nesbit and Alison Dickerson in an attempt to prepare the written jury instruction to coincide with that oral instruction. Those instructions were brought back up here. There were further changes made. I believe the Court Reporter typed them. It was a considerable period of time. We finally got the written jury instructions to the jury panel and within a matter of a few minutes, the jury returned a verdict. I believe it was only about 10 minutes at the most, 15 minutes after they received the written jury instructions.”

The trial court denied the defendant’s post-trial motion.

The defendant seeks a new trial because, he asserts, allowing the jury to deliberate without instructions “for any length of time” was error. In his brief he states that “between twenty and thirty minutes passed during which the jury deliberated without the written instructions. *** After ten or fifteen minutes with written instructions, the jury then rendered a verdict of guilty of first-degree murder.” He relies heavily upon People v. Cadwallader (1989), 181 Ill. App. 3d 488, 536 N.E.2d 1319, in which the defendant contended that the trial court had committed plain error when it allowed the jury to deliberate for slightly more than one-half hour without the benefit of instructions. In Cadwallader, however, the jury deliberated without the written instructions for a period of time after having been inaccurately instructed orally. The oral instructions omitted an essential element of the offense of theft. After receiving them, the jury was permitted to deliberate without written instructions to guide it for 35 minutes out of a total deliberation time of 72 minutes. The Cadwallader court observed that the function of the instructions is to convey to the jurors the correct principles of law applicable to the facts so that they can reach a correct conclusion according to the law and the evidence. The jury in Cadwallader was, the court stated, erroneously left to its own speculation and improvisation concerning the elements of the crime charged. Further, there were only two witnesses who provided evidence of the defendant’s guilt; both of these witnesses had admittedly taken part in the crimes with which the defendant was charged. The court concluded that in order to weigh fairly the testimony of these two witnesses against the testimony of the defendant’s alibi witnesses, the jury should have had before it the written accomplice instruction. “On these facts” the court said, “we consider it plain error for the jury to have also been deprived, for any amount of time, of the essential instructions that would have explained the elements of the crimes charged, the presumption of innocence, and the burden of proof.” (Cadwallader, 181 Ill. App. 3d at 503, 536 N.E.2d at 1329.) The court noted further in Cadwallader that there was some indication in the record on appeal that the jury had concluded that the defendant was guilty before it had examined the written jury instructions. Summarizing, the court determined as follows:

“Without placing undue emphasis on that fact, we find the other factors, i.e., improper oral instruction, partial deliberation without written instructions, and the presentation of a substantial defense, combine to constitute plain error in the instruction of the jury in this case. Fundamental fairness and the ‘interests of justice’ require that defendant be awarded a new trial.” Cadwallader, 181 Ill. App. 3d at 503, 536 N.E.2d at 1329.

In the instant case, there is no indication in the record that the jury had concluded that the defendant was guilty prior to receiving the written jury instructions. Further, the oral instructions were proper, and the defendant did not present a substantial defense. In fact, the evidence against this defendant was overwhelming, whereas “[t]he relative closeness of the evidence” (181 Ill. App. 3d at 503, 536 N.E.2d at 1328) compelled the court in Cadwallader to scrutinize carefully the instruction procedure in the trial court. The only factor present in the instant case similar to those factors considered in Cadwallader was the partial deliberation by the jury without written instructions. In light of these important differences between the instant case and Cadwallader, we hold that error, if any, was under the circumstances harmless.

The defendant’s fifth and final assignment of error pertains to the trial court’s consideration of the death of the victim as a factor in aggravation during sentencing. In imposing sentence, the trial court observed in part:

“The PSI [Presentence Investigation Report], I think at least as the attorneys are aware, indicate[s] at least a minimum of 10 prior misdemeanor convictions. I am certainly aware that none of his prior convictions are for felony offenses but it does tend to show some disregard for our [S]tate’s criminal laws. As Miss Porter indicated, six of those, no less than six of those convictions were for the offense of either obstructing or resisting a Police Officer. I believe one of those might have been for the court supervision but in any event, at a minimum, the defendant has either pled guilty or been found guilty of obstructing or resisting a Police Officer.
I have gone over the statutory factors in mitigation. None of those that are listed in the statute would appear to apply specifically to this defendant and the situation that I am confronted with this afternoon. But I will say in his favor that not only today but in previous court hearings, I believe he has indicated remorse for the events that led to the death of the victim and I believe that that remorse is sincere today, and I think it has been throughout the proceedings.
On the other hand, as far as factors in mitigation [sic], certainly by definition of the offense, the defendant caused the death of another individual. As I have made reference to, the defendant does have a history of prior criminal activity albeit of a misdemeanor nature. And I also am of the opinion that I believe that a sentence is necessary to deter others from committing a similar offense.
As so often is true in these cases, I think probably that a proper sentence is somewhere in between what the State is seeking [35 years] and what the defendant is asking [20 years].
When I came out to the courtroom today, I was of the opinion that a sentence of 25 years in the Illinois Department of Corrections was a proper sentence. I listened to the evidence this afternoon with an open mind and, quite frankly, I have not been persuaded either way to change that sentence.
So for the reasons given, I am going to sentence the defendant to a determinant [sic] term of 25 years in the Illinois Department of Corrections.”

A sentence based on improper factors, such as death as an aggravating factor when implicit in the offense, cannot be affirmed unless the reviewing court can determine from the record that the weight placed on such an improperly considered aggravating factor was so insignificant as not to lead to a greater sentence. (People v. Colclasure (1990), 200 Ill. App. 3d 1038, 558 N.E.2d 705.) Not every reference involving a factor implicit in an offense, however, gives rise to reversible error. (Colclasure, 200 Ill. App. 3d 1038, 558 N.E.2d 705.) The sentence of 25 years’ imprisonment that was imposed in the instant case falls within the range of 20 to 60 years’ imprisonment for a conviction of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1); see Colclasure, 200 Ill. App. 3d 1038, 558 N.E.2d 705). Although the trial court here may have considered the death of the victim as an aggravating factor — and it is not altogether clear that it did so — we think that, in view of the relatively light sentence imposed, the other factors in aggravation considered by the trial court, and the further considerations articulated by the trial court, any weight that might have been placed on the factor of the death of the victim was so insignificant that it did not lead to a sentence greater than would otherwise have been imposed. The trial court’s sentencing determination is entitled to great weight and, absent an abuse of discretion, will not be overturned. (Colclasure, 200 Ill. App. 3d 1038, 558 N.E.2d 705.) The record taken in its entirety, including not only the considerations expressed at the sentencing hearing but also the circumstances associated with the commission of the crime, indicates that the trial court did not abuse its discretion in imposing sentence. Therefore, we will not overturn it.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.