author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREL D. BIGHAM, Defendant-Appellant.
    Fifth District
    No. 5—90—0038
    Opinion filed April 3, 1992.

      Paul F. Henry, of Kruger & Henry, of Metropolis, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Darrel D. Bigham, appeals both his conviction for first-degree murder and his sentence of 60 years’ imprisonment imposed by the circuit court of Franklin County in connection with the stabbing death of the victim, Marshall Lee Moss. We affirm in part and reverse in part.

In November of 1985, defendant began dating Janice, his friend of 22 years, on a regular basis. By August of 1988, however, defendant decided to terminate his relationship with Janice as he was planning to move out of the State. A few months later, Janice started dating the victim Moss. Defendant subsequently changed his mind about leaving and attempted to renew his relationship with Janice, attempts which Janice rejected. Defendant became obsessed with the idea and began writing Janice numerous letters and driving by her or Moss’ house daily. At least twice prior to April 1989, defendant had “run-ins” with Moss over Janice. On the afternoon of April 22, 1989, Janice and Moss spent most of the day and evening eating and drinking at the annual pig roast held at the City Limits Lounge. Defendant spent the day visiting various friends and driving around town. After noticing Janice was at the lounge, defendant telephoned the number which he believed belonged to the lounge and left two messages on the answering machine. One message professed his love for Janice; the other challenged Moss. By 10 o’clock that evening, Moss and Janice decided to leave the lounge. According to defendant, he happened to drive by the lounge at the same time Moss and Janice reached the parking lot. Defendant honked and waved at Janice. Moss motioned for defendant to stop. Defendant pulled up and rolled down the passenger window of his truck to see what Moss wanted. Moss reached inside the truck, grabbed defendant and began beating him on the side of his head. Defendant, claiming fear for his life and full use of only one arm, grabbed a knife from between the seats and swung at Moss’ face. Moss backed out of the truck momentarily but then continued to attack defendant. Defendant responded by repeatedly slashing at Moss. Eventually Moss stumbled back and fell down. Defendant then drove straight to the sheriff’s office, handed over the knife and told the officers what had happened. No wounds were observed on defendant, and defendant told the officers at that time he was not injured. Other witnesses who happened upon the fight already in progress testified they saw defendant come partially out of his truck window and repeatedly swing at the victim until he fell. Moss died at the scene from loss of blood, having received 12 to 13 wounds to his face, chest, neck, arms and back. The left ventricle of the victim’s heart had been lacerated, and the carotid artery in the victim’s neck had been completely severed. The majority of Moss’ blood was found on the parking lot and on the outside of defendant’s truck. The jury ultimately found defendant guilty of first-degree murder. The trial court sentenced defendant to 60 years’ imprisonment.

On appeal, defendant raises four issues: (1) the trial court erred in refusing to instruct the jury regarding the substantive use of prior inconsistent statements; (2) the trial court erred in not instructing the jury on the State’s burden of proof with respect to defendant’s affirmative defense of justifiable use of force; (3) the State did not prove him guilty of first-degree murder beyond a reasonable doubt; and (4) the trial court abused its discretion in imposing an excessive sentence. We address defendant’s contentions in the order stated.

For his first issue on appeal, defendant argues the trial court erred in refusing to tender to the jury defendant’s instructions pertaining to the substantive use of prior inconsistent statements of three of the State’s witnesses. Allegedly crucial to defendant’s defense of justifiable use of force, all three witnesses in their first statements to the police characterized the altercation between defendant and Moss as a fight with Moss being the initial aggressor. Defendant believes that when a prior inconsistent statement is admitted as substantive evidence regarding a crucial element of the accused’s defense, the jury should be instructed as to the extent to which it can consider such evidence. According to defendant, failure to so instruct the jury constitutes prejudicial error, considering the critical impact of the evidence upon his case, thereby denying him a fair trial.

Illinois Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) mandates the giving of an Illinois Pattern Jury Instruction (IPI) whenever one exists. (See, e.g., People v. Jenkins (1989), 190 Ill. App. 3d 115, 128, 545 N.E.2d 986, 995.) Although an IPI instruction exists as to the admissibility of a prior inconsistent statement for impeachment purposes (see Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. Supp. 1989)), there is no IPI instruction regarding the admissibility of a witness’ prior inconsistent statement under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat.

1989, ch. 38, par. 115—10.1) as substantive evidence. When no appropriate IPI instruction exists, it is within the trial court’s discretion whether to give a non-IPI instruction, as long as the instruction accurately and concisely states the applicable law. (Jenkins, 190 Ill. App. 3d at 128-29, 545 N.E.2d at 995-96; People v. Atkins (1987), 161 Ill. App. 3d 600, 611, 515 N.E.2d 272, 279.) The court should be particularly hesitant to allow nonpattern instructions, however, when such instructions call attention to or unduly emphasize certain portions of the evidence. (See People v. Vanda (1982), 111 Ill. App. 3d 551, 568-69, 444 N.E.2d 609, 622.) This, unfortunately, is the problem with defendant’s proposed instructions. Not only did they single out specific evidence, they also made the conclusion for the jury that the prior statements were indeed inconsistent. As an example, defendant’s proposed instruction No. 11 stated:

“The testimony of Naomi Ruth Poole made under oath at the preliminary hearing in this cause on May 17, 1989, which was inconsistent with her testimony at trial may be considered by you as if it were made at the trial. You are the sole judges of the believability of the evidence and of the weight to be given to it.”

Under such circumstances, the trial court properly exercised its discretion in refusing defendant’s instructions.

We do agree, however, that generally it would be preferable to give the jury an explanatory instruction sometime during the trial concerning the substantive use of witnesses’ prior statements when applicable, provided such an instruction tracks the language of the statute and accurately states the law. (See Atkins, 161 Ill. App. 3d at 612, 515 N.E.2d at 279.) Even though the jury here was not so informed, we still believe no reversible error was committed in this instance. (See People v. Broadnax (1988), 177 Ill. App. 3d 818, 834-35, 532 N.E.2d 936, 946.) First, the witnesses’ prior statements were admitted into evidence with no restriction of any kind, and when no restriction is placed upon the purpose for which evidence is received, the evidence is admitted generally. (See People v. Webb (1982), 109 Ill. App. 3d 328, 332, 440 N.E.2d 406, 409.) Secondly, defense counsel was free to make substantive use of the statements in closing argument and did so extensively. He not only informed the jury it could consider the prior statements as substantive evidence, he also repeatedly emphasized the statements substantively to the extent of presenting demonstrative enlargements of them for the jury’s viewing. Under such circumstances, clearly the jury was aware it could consider the statements as substantive evidence. (Cf. People v. Wilson (1986), 149 Ill. App. 3d 1075, 1078-79, 501 N.E.2d 863, 865.) Informing the jury once again by way of a written instruction, in all probability, would not have triggered a different result. We therefore find no reversible error.

Turning to defendant’s second contention on appeal which also pertains to instructional error, we again find no reversible error. This time, defendant argues the trial court erred in not instructing the jury with regard to the State’s burden of proof on the affirmative defense of justifiable use of force. Once again defendant’s proposed instruction was a non-IPI instruction, and once again, we point out the decision whether to tender such an instruction to the jury rests within the discretion of the trial court. (See People v. Hanson (1985), 138 Ill. App. 3d 530, 540, 485 N.E.2d 1144, 1151.) It is true defendant presented some evidence he killed Moss in self-defense. It is also true that under such circumstances the State was required to prove beyond a reasonable doubt defendant was not justified in using the force he did use. (People v. McDowell (1985), 138 Ill. App. 3d 622, 626-27, 485 N.E.2d 1098, 1101; People v. Williams (1980), 80 Ill. App. 3d 963, 968, 400 N.E.2d 532, 536.) The preferred method of instructing the jury about self-defense is to give the definitional instruction of self-defense (IPI Criminal 2d No. 24 — 25.06) following the definition of the crime with which the defendant is charged and to modify the issues instruction for each offense to which the defense applies by including as a proposition that the State has the burden of proving the defendant was not justified in using the force he used (IPI Criminal 2d No. 24 — 25.06A). (McDowell, 138 Ill. App. 3d at 627, 485 N.E.2d at 1101; Williams, 80 Ill. App. 3d at 970, 400 N.E.2d at 537.) This is exactly what the trial court did here. Consequently, we cannot say the jury was improperly instructed. Moreover, defense counsel dwelt at length in closing argument on the State’s burden of proving defendant was not justified in using the force he used. We have no doubt that the jury was aware of the State’s burden in this instance. Compare People v. McDowell (1985), 138 Ill. App. 3d 622, 485 N.E.2d 1098, and People v. Williams (1980), 80 Ill. App. 3d 963, 400 N.E.2d 532, with People v. Lowe (1987), 152 Ill. App. 3d 508, 504 N.E.2d 955, and People v. Brophy (1981), 96 Ill. App. 3d 936, 422 N.E.2d 158.

Defendant counters the instructions were ineffective because the issues instruction was too lengthy and complex. The instruction was a combination of IPI Criminal 2d Nos. 7.04A and 7.06A (Supp. 1989), both of which must be given when the jury is to be instructed on first-degree murder and second-degree murder (provocation) and on first-degree murder and second-degree murder (unreasonable belief of justification). Defendant cannot be heard to complain on appeal about combining these two instructions when he specifically agreed at the instruction conference that the two instructions should be combined. (See People v. Berryman (1988), 171 Ill. App. 3d 548, 559-60, 526 N.E.2d 180, 187.) We find that the instructions tendered to the jury, construed as a whole, fully and properly informed the jury of the applicable law. Williams, 80 Ill. App. 3d at 970, 400 N.E.2d at 537.

Defendant next argues on appeal he was not proved guilty beyond a reasonable doubt of first-degree murder. Defendant’s theory is that he was justified in the use of force he used against Moss because a person is permitted to use force likely to cause death, not only if he believes such force is necessary to prevent imminent death or great bodily harm to himself or another, but also if it is necessary to prevent the commission of a forcible felony. The forcible felony in this instance, according to defendant, is aggravated battery based upon the battered person being “on or about a public way, public property or public place of accommodation or amusement” (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(8)), as well as upon the person committing the battery knowing the individual harmed to be physically handicapped (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(14)). Relying upon the prior inconsistent statements of the three State witnesses, defendant believes the State proved he committed, at most, second-degree murder.

It is not the function of this court to retry defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Rather, 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. (106 Ill. 2d at 261, 478 N.E.2d at 277.) Viewing all of the evidence presented here in the light most favorable to the prosecution, we believe it is more than sufficient to support the jury’s verdict. We note it is the function of the jury to weigh contradictory evidence and inferences, to judge the credibility of witnesses and to draw ultimate conclusions as to the facts. (E.g., People v. Johnson (1988), 173 Ill. App. 3d 998, 1003, 527 N.E.2d 1317, 1320; Atkins, 161 Ill. App. 3d at 611, 515 N.E.2d at 279.) We will not set aside a jury’s verdict merely because different inferences and conclusions from conflicting testimony could have been drawn. Johnson, 173 Ill. App. 3d at 1003, 527 N.E.2dat 1320.

It is undisputed that defendant stabbed Moss to death. The actions leading to his death strongly suggest a motive of jealousy. Defendant had been pursuing Janice relentlessly since she started dating Moss. He wrote her numerous letters professing his love and attacking Moss’ character. He drove by her or Moss’ house almost daily. Whenever he spotted Moss alone, defendant made obscene gestures toward him. And on at least two occasions, he verbally confronted Moss. Just two months prior to the stabbing, defendant threatened to “knife” Moss and cut off his finger. On the day of the murder, defendant at least once drove by the lounge where Janice and Moss were drinking and then called what he believed to be the number of the establishment to challenge Moss to a fight. At the fight itself, no matter who may have started the altercation, defendant was the one who lunged out through the window to continue stabbing Moss after he backed out of the truck. Defendant pursued his attack until Moss fell. No one ever saw Moss strike defendant; no one ever saw Moss holding onto defendant; and no one, including defendant, ever saw any type of weapon in Moss’ hands. Moreover, defendant never complained to the authorities of any injuries and, in fact, repeatedly denied being hurt. Those officers who later examined him found no wounds or injuries of any kind. Finally, all of the blood from Moss, other than that smeared by defendant’s hands, was outside the truck. The jury could well have concluded defendant was the aggressor from the very start or, just as easily, could have concluded any blows inflicted by Moss did not justify defendant’s repeated stabbings or the use of deadly force in general. (See People v. Reddick (1988), 123 Ill. 2d 184, 200-01, 526 N.E.2d 141, 148; People v. Stokes (1989), 185 Ill. App. 3d 643, 656-57, 541 N.E.2d 1129, 1137-38; Hanson, 138 Ill. App. 3d at 536, 485 N.E.2d at 1148-49.) We further note, none of the three State witnesses had any reason to be prejudicial against defendant; one in fact considered herself to be a friend of defendant. And, none of the witnesses’ explanations for the discrepancies in their statements were inherently unreasonable. For these reasons, we cannot say the jury’s verdict in this instance was so palpably erroneous, unreasonable, or unsupported by the evidence as to justify reversal.

Defendant’s final contention on appeal pertains to his sentence. Defendant believes his sentence of 60 years’ imprisonment is excessive in light of the several factors in mitigation and few factors in aggravation. This time we agree with defendant.

Generally, a reviewing court will not disturb a sentence unless it greatly diverges from the purpose and spirit of the law or is highly disproportionate to the nature of the offense. (People v. Gibbs (1977), 49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 493-94.) While sentences are not to be lightly set aside, there are some situations which call for reduction of the sentences imposed even though they are within the statutory limits. (People v. Nelson (1982), 106 Ill. App. 3d 838, 846, 436 N.E.2d 655, 661.) Penalties are to be determined not only according to the “seriousness of the offense,” but also with the “objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11; Gibbs, 49 Ill. App. 3d at 648, 364 N.E.2d at 494.) In other words, not only must the sentencing court consider the rehabilitative factor, it must also act on it as an objective of the sentence. (Gibbs, 49 Ill. App. 3d at 648, 364 N.E.2d at 494.) While we recognize that the trial court is charged with the task of fashioning a sentence which strikes the appropriate balance between the protection of society and rehabilitation of the defendant (see People v. Ernst (1991), 219 Ill. App. 3d 51, 59, 579 N.E.2d 376, 382), and that the court is not required to give rehabilitative potential more weight than the seriousness of an offense (see People v. Dower (1991), 218 Ill. App. 3d 844, 854, 578 N.E.2d 1153, 1160), we believe that in this instance the record reveals defendant has rehabilitative potential which would not be well served by the excessive length of his sentence. Defendant’s only prior felony offense was nonviolent in nature and occurred some nine years prior to the instant offense. He successfully completed probation and made restitution with respect to that offense and has also successfully controlled the substance abuse problem which precipitated the offense. While some may find it difficult to appreciate the rehabilitative capacities of defendant, “such is required by the constitution of our State.” (Gibbs, 49 Ill. App. 3d at 649, 364 N.E.2d at 494.) Accordingly, we vacate defendant’s sentence and remand this cause for a new sentencing hearing.

For the aforementioned reasons, we affirm defendant’s conviction for first-degree murder, vacate his sentence and remand this cause to the circuit court of Franklin County for resentencing.

Affirmed in part; vacated in part and remanded.

GOLDENHERSH, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    HARMON INSURANCE AGENCY, INC., Plaintiff-Appellee, v. NANCY THORSON, Defendant-Appellant.
    Third District
    No. 3—91—0621
    Opinion filed March 12, 1992.
    Modified on denial of rehearing April 21, 1992.

      John J. Crandall, of Palos Heights, for appellant.
    Dennis Porick, of Dennis B. Porick, Ltd., of Joliet, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The plaintiff, Harmon Insurance Agency (Harmon), filed suit against the defendant, Nancy Thorson, an insurance broker. Harmon sought compensation for earned premiums due under certain insurance policies, less credits due Thorson. The trial court awarded the plaintiff $195.71. The defendant appeals.

The record shows that sometime during the last quarter of 1989, Thorson solicited various policies of insurance for two businesses known as “Partners” and “Pen and Print.” Pursuant to an oral agreement with Harmon, Thorson was to receive 75% of the commissions earned on those policies. The remaining commissions were to be retained by Harmon. Harmon subsequently assigned its rights under the premium finance contract with Partners to the First National Bank of Blue Island.

On March 13, 1990, Harmon sent Thorson a letter indicating that earlier that day, the bank had informed Harmon that Partners had not made its February and March payments. The letter also indicated that the policies had been cancelled.

The bank demanded that Harmon reimburse it for earned premiums due on the policies issued to Partners. Harmon then filed a suit against Thorson seeking the amount of the earned premiums due on the policies, less commission credits due Thorson.

The trial court held that the losses should be apportioned as the gains were to be divided. Accordingly, the court ordered that Thor-son was to pay Harmon 75% of the losses.

On appeal, Thorson raises two issues. First, she contends that the trial court should be reversed because Harmon’s suit was barred by the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1 et seq.). Alternatively, she contends that Harmon should not be allowed to recover because it failed to make reasonable efforts to avoid damages.

Section 2 — 613(d) of the Code of Civil Procedure requires that affirmative defenses, including the Statute of Frauds, must be plainly set forth in the answer. (Ill. Rev. Stat. 1989, ch. 110, par. 2—613(d).) Affirmative defenses raised for the first time in a motion for reconsideration are considered waived. (Fister/Warren v. Basins, Inc. (1991), 217 Ill. App. 3d 958, 578 N.E.2d 37; Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, 463 N.E.2d 765.) Thorson argues that section 2 — 613(d) does not apply in the instant case because this is a small claims action. (See Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 342 N.E.2d 264.) We disagree.

We recognize that the rules governing small claims actions are intended to provide an expeditious, simplified, and inexpensive procedure for handling small claims. (Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 342 N.E.2d 264.) However, other practice rules, as well as the provisions of the Code of Civil Procedure, are applicable to small claims proceedings if consistent with the aims of the small claims rules. Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318; Peoria Housing Authority v. Roberson (1979), 74 Ill. App. 3d 326, 392 N.E.2d 1107.

The clear purpose of section 2 — 613(d) is to facilitate the decision of cases on their merits and to eliminate the harsh consequences which often stemmed from unfair surprise at trial prior to enactment of the modern rules of procedure. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) We note that Supreme Court Rule 286 (134 Ill. 2d R. 286) eliminates the need for written pleadings in small claims cases. As such, compliance with the letter of section 2 — 613(d) is unnecessary in such cases. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) However, this does not mean that compliance with the spirit of section 2 — 613(d) is impossible in small claims. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) Since the purpose of section 2 — 613(d) is consistent with the aims of the small claims rules, it is applicable to small claims proceedings. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) By that we mean to say that a party, even though not being required to file a formal answer, must at least raise the defense prior to the conclusion of defendant’s case in chief so that the plaintiff will have an opportunity for fair rebuttal.

In the instant case there is nothing in the record indicating that Thorson raised the Statute of Frauds defense prior to the conelusion of the trial. Although the Statute of Frauds was eventually raised in Thorson’s motion for reconsideration, by then it was too late. To allow Thorson to raise affirmative defenses that were neither pled nor argued at trial and only raised in a motion to reconsider would result in unfair surprise, which would be abhorrent to the spirit of the small claims rules. Accordingly, we find that the Statute of Frauds defense was waived.

We now turn our attention to Thorson’s contention that Harmon should not be allowed to recover because it failed to make reasonable efforts to avoid damages. The thrust of Thorson’s argument seems to be that Harmon should have cancelled the policies immediately upon the failure of Partners to make its February payment, rather than waiting until March.

A party injured by a breach of contract is required to use all reasonable means to minimize his damages. (Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 412 N.E.2d 1142.) The defendant has the burden of proving that the plaintiff failed to mitigate his damages. Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 412 N.E.2d 1142.

In the instant case, there is nothing in the record indicating that Harmon was aware of Partners’ nonpayment until the middle of March. Further, the very day that Harmon was informed of the nonpayment, it took steps to cancel the policies. Even if the bank’s February knowledge of nonpayment could be imputed to Harmon, it would not have been unreasonable for Harmon to wait until a second payment was missed before cancelling the policies. Accordingly, we find that Harmon made a reasonable effort to avoid damages.

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

Affirmed.

GORMAN and HAASE, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL JONES, Defendant-Appellant.
    Third District
    No. 3—91—0169
    Opinion filed March 31, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Russell Jones, of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1). He was thereafter sentenced to 80 years of imprisonment. He appeals his sentence. We affirm.

The record shows that the defendant, a gang member, killed the victim in a drive-by shooting. At the sentencing hearing, it was established that in November of 1988 the defendant had pled guilty to the offense of aggravated battery. The aggravated battery conviction was based upon his causing bodily harm to an individual while armed with a handgun (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(1)). The victim of the aggravated battery suffered numerous lacerations to the front, back, and side of his head, as well as to his cheek.

Based on the 1988 conviction, the trial court found that the defendant was eligible for an extended-term sentence in the case at hand. The court also found, as aggravating factors, that the defendant had a history of prior criminal activity, and that the sentence to be imposed was necessary to deter others from committing the same crime. Therefore, the court sentenced the defendant to an extended-term sentence of 80 years.

On appeal, the defendant argues that the trial court erred in imposing an extended-term sentence. Specifically, he contends that his prior conviction for aggravated battery was not a forcible felony upon which the extended-term sentence could be based.

The statutory scheme under which the defendant was sentenced provides that a person convicted of first degree murder is eligible to be sentenced to an extended term of imprisonment if he has been convicted within the past 10 years, excluding time spent in custody, of any one of various offenses, including a “forcible felony” which was related to the activities of an organized gang. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3(c)(2)(J), 1005-5-3.2(b)(7).) “‘Forcible felony’ means treason, first degree murder, second degree murder, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, arson, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” Ill. Rev. Stat. 1989, ch. 38, par. 2—8.

The defendant argues that by limiting aggravated batteries to those based on causing great bodily harm, the legislature intended to exclude all other types of aggravated battery convictions from being considered as a basis for imposing an extended-term sentence. As such, he contends that his aggravated battery conviction, which was based on harm occurring while using a deadly weapon, should not have been used to impose an extended-term sentence. We disagree.

A primary purpose of statutory construction is to ascertain the legislative intent. In seeking the intent of the legislature, the courts will not only consider the language used but also the evil to be remedied and the object to be obtained. People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.

Here, we do not think the legislature was concerned with the type of aggravated battery the defendant was charged with, but rather was concerned with the harm that resulted from the battery. We also find that the evil to be remedied and the object of the statute is to allow the courts to punish more severely those individuals with a history of harming their victims. This position is supported by the plain language of section 2 — 8, which includes, along with a number of other crimes, any felony involving the use of physical force or violence against any individual.

Accordingly, we find that the legislature intended to include as a “forcible felony” any aggravated battery that involved the use of physical force or violence against an individual. Here, the evidence showed that the defendant’s prior aggravated battery involved his victim suffering bodily harm from the defendant’s use of physical force against him. We therefore conclude that the trial court could properly consider this conviction as a basis for giving the defendant an extended-term sentence.

We acknowledge, however, that the statute is subject to more than one interpretation. Although we believe our interpretation is what the legislature intended, we would welcome further clarification by the legislature.

The defendant also argues that the evidence failed to establish that his prior aggravated battery conviction was related to an organized gang activity. The evidence showed that the defendant, along with several other gang members, “crashed” a party and began displaying various gang signs. This activity provoked a fight with others at the party. The defendant and at least three other members of his gang produced firearms. They repeatedly struck the victim with their weapons and then left the party.

Other evidence showed that the defendant belonged to the “Latin Kings,” an organization which encouraged its members to commit crimes for various reasons. One such reason was that members could rise within the command structure of the gang through the commission of violent acts or crimes.

We find that the above evidence was sufficient to support the trial court’s finding that the aggravated battery was related to the activities of an organized gang. As such, we reject the defendant’s argument to the contrary.

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

Affirmed.

STOUDER and McCUSKEY, JJ., concur.


text:
      In re ESTATE OF EDITH M. AIMONE, Deceased (Dianne Arnett, Petitioner-Appellee, v. Ruth Jane Burdett, Respondent-Appellant).
    Third District
    No. 3—90—0895
    Opinion filed March 31, 1992.

      Hafele, Thiemann & Carter, of Peoria (Bruce Thiemann, of counsel), for appellant.
    Gery R. Gasick, of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (Mary A. Corrigan, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

After the death of Edith M. Aimone, Dianne Arnett, decedent’s granddaughter, brought an action to have certain funds in the possession of her aunt, Ruth Jane Burdett, declared to be assets of the estate of decedent for distribution according to her will. Burdett appeals from entry of summary judgment in favor of Arnett.

On May 9, 1984, Edith M. Aimone executed a will which left all of her property to her husband John if he survived her and, if he did not survive, then her residence to her granddaughter, Dianne Arnett, and the rest of her property to her two daughters, Ruth Jane Burdett and Edith Nickerson, and to her granddaughter, Dianne Arnett, Nickerson’s daughter, in equal shares.

Edith’s will contained the following section 5:

“I have made this Last Will and Testament pursuant to a contract and agreement between my husband and me for the purpose of disposing of all our property, whether owned by us as joint tenants, as tenants in common or in severalty, in accordance with a common plan. The reciprocal and other gifts made herein are in fulfillment of this purpose and plan and in consideration of each waiving the right, during our joint lives, to alter, amend or revoke our respective and mutual Last Wills and Testaments, in whole or in part, by Codicil or otherwise, without notice to the other, or under any circumstances after the death of the first of us to die.”

According to affidavits in the record, after John suffered a stroke and was hospitalized, Edith became concerned that his medical bills would deplete all their savings. On January 27 and 28, 1988, she withdrew $75,000 from three accounts belonging to John and Edith Aimone jointly and placed cashier’s checks in that amount in her safety deposit box. Each cashier’s check was payable to Edith Aimone or Ruth Burdett and Edith Nickerson. John died on March 15, 1988. In October of the same year Edith Aimone was a patient in a nursing home because of gangrene developing in one leg. She signed a power of attorney authorizing her two daughters to sign checks. On October 17, 1988, pursuant to the power of attorney, Burdett and Nickerson converted the cashier’s checks into certificates of deposit payable to Edith Nickerson and Ruth Burdett.

According to affidavits and other documents in the record, John and Edith together gave $500 each to Dianne Arnett, her husband Kevin Arnett, Ruth Burdett, and Edith Nickerson on January 12, 1987, and on July 31, 1987, purchased a $4,000 certificate of deposit in the names of Arnett, Burdett, and Nickerson. After John’s death, Edith gave Dianne Arnett $500 for car repairs on June 19, 1988, and paid for Dianne’s airplane tickets to attend John’s funeral. Also, Edith deeded her residence in Peoria to Arnett on July 15,1988.

After Edith died on March 23, 1989, Burdett and Nickerson as co-executors filed a small estate affidavit and inventory in the circuit court of Peoria County. Neither document listed the $75,000 as part of the estate. Dianne Arnett petitioned the court for an order declaring that the inter vivos gift of $75,000 from Edith Aimone to her daughters was in breach of the will contract contained in section 5 of her will and, hence, was void.

Burdett filed a motion to dismiss, and Arnett filed a motion for summary judgment. The trial court denied Burdett’s motion to dismiss and also denied Burdett’s subsequent motion to continue the hearing on the summary judgment motion to allow more discovery. The trial court granted the motion for summary judgment, and this appeal resulted.

Burdett asserts two errors compelling reversal of the judgment entered in the trial court: (1) that summary judgment in favor of Arnett was erroneous under the law as applied to the facts of this case and (2) that Burdett’s motion for a continuance should have been allowed.

We first must examine the summary judgment and the pleadings and supporting affidavits upon which it is based. The motion for summary judgment recites that Edith and John Aimone executed joint and mutual wills on May 9, 1984; that Edith’s will constituted a binding contract between John and Edith; that at Burdett’s suggestion, on January 27 and 28, 1988, Edith withdrew $75,000 from joint accounts of John and Edith by means of cashier’s checks payable to Edith Aimone or Ruth Burdett and Edith Nickerson; that John was not present when the checks were issued; that John died on March 15, 1988; that on October 17, 1988, Burdett and Nickerson used the checks to obtain certificates of deposit payable to Burdett and Nickerson, acting pursuant to a power of attorney given by Edith to Burdett and Nickerson; that the transfer of $75,000 to Burdett and Nickerson by Edith was for reason of convenience and not intended to contravene the terms of Edith’s will; that an inter vivos gift of the $75,000 would breach the terms of the contract between Edith and John as set out in section 5 of Edith’s will; and that there is no genuine issue of material fact that the transfer of $75,000 to Burdett and Nickerson was in contravention of Edith’s will. The motion as it appears in the record on appeal was not sworn to and, in fact, was not even signed.

Attached to the motion as exhibits were copies of Edith’s will and the cashier’s checks and certificates of deposit in question; an affidavit by Burdett signed on September 22, 1989, and attached to a motion filed by Burdett earlier in this cause; and an affidavit by Nickerson signed on October 26, 1989, and attached to Arnett’s response to the earlier motion by Burdett.

According to the affidavit of Burdett, when Edith became concerned about the amount of John’s medical expenses in early 1988, she went to two Peoria banks accompanied by Burdett and Nicker-son to withdraw money from her joint savings accounts. At each bank, Edith allegedly told a bank official that the cashier’s checks should be in her name and also the names of her two daughters “as she wanted them to have the money equally if anything happened to her.” Burdett further averred that the subsequent purchase of certificates of deposit in the names of Burdett and Nickerson was done “because their mother had previously indicated to the bank officials when purchasing the three cashier’s checks that she wanted her daughters to have the proceeds if anything happened to her.”

Nickerson’s affidavit directly contradicted that of Burdett with regard to statements by Edith at the time the $75,000 was withdrawn. According to Nickerson, Edith expressed an intent that the funds be divided equally between Arnett, Burdett, and Nickerson in accordance with the terms of her will and that she agreed to have only two names with hers on the checks only after Burdett suggested that it would be difficult to obtain Arnett’s signature if funds were needed since Arnett lived in Texas. Nickerson stated that Edith agreed “for the convenience of the parties, with the understanding that in the event of her death the funds from the cashier’s check would be divided equally” between Arnett, Burdett, and Nickerson. Nickerson further attested, “At no time was there any discussion that the money was to be considered a gift to affiant and Ruth J. Burdett only.” (Emphasis in original.)

Burdett subsequently filed a response to the motion for summary judgment in which she asserted that the will of Edith alone does not constitute a joint and mutual will and that Arnett failed to prove by clear and convincing evidence that Edith intended to enter into an irrevocable binding contract with John which would preclude gifts during her lifetime. Burdett also claimed that issues of material facts exist as to Edith’s donative intent and as to the question of notice to John.

Attached to this response is an affidavit by Burdett denying that Edith stated that she wanted the funds to be divided equally among Arnett, Burdett, and Nickerson. Also attached are excerpts from discovery depositions given by Nickerson and Arnett in which they indicated that Edith never told them that her will prevented her from making gifts during her lifetime.

Burdett contends on appeal that section 5 of Edith’s will does not alone evidence a binding, irrevocable contract between Edith and John and, even if a contract did exist, it did not become irrevocable until after the death of John. Thus, she argues that the language of section 5 does not prevent inter vivos gifts by the parties during their lifetimes.

The legal implications of various types of wills were examined in Frazier v. Patterson (1909), 243 Ill. 80, 84, 90 N.E. 216, 217:

“Wills may be joint or mutual or both joint and mutual. A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. It is not necessarily either mutual or reciprocal. Mutual wills may be defined as the separate wills of two persons which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shows on its face that the devises are made one in consideration of the other. *** Mutual wills *** may or may not be revocable at the pleasure of either party, according to the circumstances and understanding upon which they were executed. To deprive either party of the right to revoke such mutual will it is necessary to prove, by clear and satisfactory evidence, that such wills were executed in pursuance of a contract or a compact between the parties, and that each is the consideration for the other ***.”

In the case at bar, Edith’s will purports by its own language to be a mutual will executed pursuant to a contract with John. Some general rules concerning mutual wills were summarized in Monninger v. Koob (1950), 405 Ill. 417, 422-23, 91 N.E.2d 411, 414, as follows:

“Mutual wills are not, generally, of themselves sufficient evidence of a contract and the consideration to support it must be aliunde the wills. (Curry v. Cotton, 356 Ill. 538[, 191 N.E. 307].) Courts of equity look with jealousy upon the evidence offered in support of such a contract and will weigh it in the most scrupulous manner. (Sloniger v. Sloniger, 161 Ill. 270[, 43 N.E. 1111].) It is also clear that, while a person owning property may make a contract to dispose of it by will in a particular way, (Scham v. Besse, 397 Ill. 309[, 74 N.E.2d 517]; Oswald v. Nehls, 233 Ill. 438[, 84 N.E. 619],) such contracts do not stand on an especially favored footing, and a court will be more strict in examining into the nature and circumstances of such agreements than with other contracts. Kaiser v. Cobbey, 400 Ill. 214[, 79 N.E.2d 604]; Klussman v. Wessling, 238 Ill. 568[, 87 N.E. 544].”

Where an unrevoked joint and mutual will constitutes a valid and enforceable contract between husband and wife, it has been held that the contract impresses a trust upon all property of both testators. (In re Estate of Bell (1972), 6 Ill. App. 3d 802, 286 N.E.2d 589.) The same would be true of mutual wills executed pursuant to a binding contract. However, Arnett is required to establish by the clearest and most convincing evidence that the alleged contract was in existence at the time of the transfer of $75,000 and that it was certain and definite in all its terms. Jordan v. McGrew (1948), 400 Ill. 275, 79 N.E.2d 622; National Bank v. Emerson (1948), 335 Ill. App. 494, 82 N.E.2d 382.

Here, there is no evidence extrinsic to Edith’s will itself concerning the circumstances or intentions of the two parties at the time she executed her will. The language contained in section 5 of Edith’s will clearly states her intention to enter into a binding contract that was expressly revocable during their lives with notice to the other and irrevocable upon the death of one party. This situation is similar to that in Freese v. Freese (1977), 49 Ill. App. 3d 1041, 364 N.E.2d 983, where the mutual wills of a husband and wife expressly stated that the wills were to be considered to be the plan they had made for the disposition of all their property. The court there held that the contract embodied in their mutual wills became irrevocable as to the survivor upon the death of the first testator and prevented the survivor from making a subsequent transfer of the parties’ assets not contemplated or allowed by the agreement.

Burdett argues that the language of section 5 is ambiguous, but we do not agree. We believe the language is a clear and convincing disclosure of the intent of Edith to make a mutual will with John which would have the binding effect of a joint and mutual will so that the will of one could not be revoked without notice to the other. (Cf. Buehrle v. Buehrle (1920), 291 Ill. 589, 126 N.E. 539.) The language of section 5 closely resembles that contained in a joint and mutual will in In re Estate of Kritsch (1978), 65 Ill. App. 3d 404, 382 N.E.2d 50, where the wills of both husband and wife contained a statement of their agreement to dispose of their property according to a specific plan and in consideration of their mutual bequests, with the further agreement that their wills would not be revoked, changed, or destroyed by either without the full consent and agreement of the other. The court ruled that in the case of such mutual and reciprocal wills, “a judicial presumption arises in favor of the existence of the contract from the existence of the mutual wills themselves.” (65 Ill. App. 3d at 408, 382 N.E.2d at 53.) Thus that court found that additional testimony was not needed to establish the existence of a binding contract between the parties.

The court in Kritsch relied in part on In re Estate of Willis (1975), 33 Ill. App. 3d 279, 337 N.E.2d 35, where this court held that a contract between the two testators was established by the language of a joint and mutual will without resort to other testimony.

In the case at bar, if we had before us the mutual wills of both Edith and John, we would reach the same conclusion as the courts in Kritseh and Freese that the language of section 5 was sufficient to prove the existence and terms of a binding contract between the parties. Unfortunately, the will of John is not a part of the record on appeal and was not before the trial court. Arnett has the burden of establishing that a binding contract was made in 1984 by the execution of two mutual wills. Without John’s will, or some evidence of its provisions and an explanation for its absence, we cannot invoke a judicial presumption that Edith was bound by a contract that prevented gifts to Burdett and Nickerson. All of the cases cited to us involved either a joint will executed by both parties or two separate mutual wills, both of which were before the court.

Since we have neither John’s will nor any extrinsic evidence concerning the circumstances surrounding the drafting and execution of his and Edith’s wills, we conclude that Arnett has failed to establish a necessary element of her case, i.e., that Edith was bound by a contract with John requiring that her property be disposed of as provided by her will. We reverse the judgment of the trial court and remand for further proceedings.

Since this cause is being remanded, we elect to address two of Burdett’s arguments which may be raised in the course of additional proceedings in the circuit court. Burdett argues that even if section 5 does establish a contract between John and Edith, it is not irrevocable until the death of John. She says that, since the transfers here occurred before John’s death, Edith was acting within her rights in revoking the previously agreed to testamentary disposition. This argument ignores the express provision of section 5 that neither party may revoke without notice to the other. Thus, by its own terms the alleged contract is revocable, but only with notice. The burden of proving that notice was given would be upon Burdett, the party relying upon revocation. Curry v. Cotton (1934), 356 Ill. 538, 191 N.E. 307.

Another contention advanced by Burdett is that the contract only prohibits Edith from altering her testamentary disposition and does not prevent the inter vivos gifts in question here. As we have previously indicated, mutual wills made pursuant to a binding contract have the same legal effect as joint wills. (E.g., Buehrle v. Buehrle (1920), 291 Ill. 589, 126 N.E. 539.) The disposition of all the joint property is controlled by the contract set forth in the mutual wills, and the intended testamentary plan cannot be defeated by inter vivos gift. In re Estate of Bell (1972), 6 Ill. App. 3d 802, 286 N.E.2d 589.

Burdett also contends that the trial court erred in denying her a continuance. Since we are reversing the summary judgment and remanding for further proceedings, that issue is moot and need not be considered here.

For the reasons stated, we reverse the summary judgment and remand for further proceedings.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SHUMAN, Defendant-Appellant.
    Third District
    No. 3—91—0409
    Opinion filed March 31, 1992.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

In this case, we address the issue of whether defendant James Shuman knowingly and intelligently pled guilty. Since we find that he did not, we vacate the decision below and remand the cause for further proceedings.

The defendant was initially charged with 11 counts of arson (Ill. Rev. Stat. 1989, ch. 38, par. 20—1). He agreed to plead guilty to all counts in return for the State’s promise not to charge him with aggravated arson. There was no agreement as to the sentences.

At the guilty plea hearing, the trial court informed the defendant that he faced a sentence of three to seven years on each count. The court also stated that the sentences could be consecutive or concurrent. The court did not mention the possibility of extended terms.

The factual basis for the pleas established that on February 3, 1984, the defendant set fire to a Sterling church (count I). On May 13, 1984, the defendant set another fire to the same church (count II). In addition, he set nine other fires on that date. Following presentation of the factual basis, the court accepted the guilty pleas and set the matter for sentencing.

At the sentencing hearing, the defendant was found eligible for an extended term because of a prior burglary conviction. Thereafter, the court imposed consecutive extended terms of 14 years on the first two counts and concurrent terms of seven years on each of the remaining counts.

On June 26, 1987, the defendant filed a pro se petition for post-conviction relief. His appointed counsel subsequently amended the petition to state that the defendant’s plea was not knowingly or intelligently made because the trial court had failed to tell him he was eligible for an extended term.

At a hearing on the petition, the defendant testified that his original trial counsel had never mentioned extended terms to him. His attorney had told him the sentences for counts II through XI would be concurrent with each other because they involved a “common act.” His attorney had further stated that those sentences could be consecutive to the sentence for count I. Consequently, when he pled guilty, the defendant thought that the most he could receive were two consecutive seven-year terms. He stated that he might not have pled guilty if the court had told him he was eligible for consecutive extended-term sentences.

The post-conviction judge denied the defendant’s petition. The court noted that the defendant had been told about the possibility of consecutive sentences. Accordingly, he was led to believe he could receive a total sentence far in excess of the 28-year aggregate sentence imposed upon him. The judge therefore concluded that the failure to admonish the defendant about extended-term sentencing did not amount to a substantial denial of his constitutional rights.

On appeal, the defendant argues that the trial court improperly admonished him at the guilty plea hearing. In support of his argument, he notes that the court failed to tell him about the possibility of extended terms. He also notes that the court incorrectly told him he could have received 11 consecutive seven-year sentences. The defendant points out that the most he could have received were two consecutive 14-year sentences. Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(c)(2).

In order to prevail on a post-conviction petition, a defendant must establish a substantial denial of his constitutional rights. (People v. Ward (1971), 48 Ill. 2d 117, 268 N.E.2d 692.) The Constitution requires that a guilty plea be knowing, voluntary and intelligent. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) Thus, a trial judge is required to admonish a defendant on the record regarding the consequences of a guilty plea to insure that the plea is voluntary. Boykin, 395 U.S. at 243-44, 23 L. Ed. 2d at 279-80, 89 S. Ct. at 1712.

Supreme Court Rule 402 (134 Ill. 2d R. 402) is considered to be the embodiment of constitutional standards for procedures at plea proceedings. (People v. Didley (1991), 213 Ill. App. 3d 910, 572 N.E.2d 423.) Rule 402 by its terms requires substantial compliance. (134 Ill. 2d R. 402.) Consequently, the failure to strictly comply with Rule 402 does not automatically raise an issue of constitutional dimensions, although noncompliance may be relevant in determining whether a defendant knowingly and voluntarily pled guilty. People v. Akers (1985), 137 Ill. App. 3d 922, 484 N.E.2d 1160.

Rule 402 requires that a defendant who pleads guilty must understand the maximum sentence he faces, including consecutive sentences and any sentence he may receive because of prior convictions. (134 Ill. 2d R. 402(a)(2).) Moreover, the statutory provision for extended terms requires that if a defendant pleads guilty, the record must show that he knew an extended term was a possibility. If the record does not so indicate, he shall only receive an extended term if he is first given an opportunity to withdraw his plea without prejudice. Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(b); People v. Mapps (1990), 198 Ill. App. 3d 521, 555 N.E.2d 1275.

We note that there is a line of authority holding that a defendant need not be correctly admonished as to his maximum sentence, so long as he receives substantially less than the punishment he was told he could receive. (See, e.g., People v. Felton (1989), 191 Ill. App. 3d 599, 548 N.E.2d 57.) There comes a point, however, where the defendant is so poorly admonished that his plea can no longer be said to be knowing and voluntary. Here, the trial judge failed to tell the defendant he could receive an extended term. Moreover, he said the defendant could receive 11 consecutive seven-year terms, when the most he could have received were two consecutive 14-year terms. Additionally, although defendant’s trial counsel told him he could only receive two consecutive terms, he did not tell him about the possibility of extended terms. Based on all of the conflicting and inadequate advice the defendant received, we find that his pleas were not knowing and voluntary.

The defendant asks this court to either reduce his sentences to seven years, or vacate his pleas and sentences and remand the cause for further proceedings. We think that the latter course is better because it places the defendant in the position he would have been in if the errors had not occurred. Accordingly, we vacate the defendant’s pleas and sentences and remand the cause for further proceedings.

Vacated and remanded.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN L. GIBBS, Defendant-Appellant.
    Third District
    Nos. 3—91—0385 through 3—91—0387 cons.
    Opinion filed April 8, 1992.

      Kenneth A. Kozel, of Petz & Kozel, of La Salle, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Martin Gibbs, was convicted of aggravated battery, driving with a revoked license, and driving under the influence of alcohol. He was sentenced to concurrent terms of two years for aggravated battery and 364 days for each of the two driving offenses. On appeal, he contends the trial court erred by: (1) admitting into evidence testimony regarding the defendant’s prior criminal conduct of resisting and striking a police officer; and (2) by denying the defendant’s motion to sever the aggravated battery charge from the traffic-related charges. We reverse.

At trial, Officer Eric Beach testified that on December 31, 1990, he was on patrol when the defendant’s car passed his vehicle in a no passing zone. Beach then paced the vehicle and determined that it was travelling at 62 miles per hour. As the car approached a trailer park, Beach activated his flashing red lights. The car then proceeded to stop in the trailer park next to the first trailer.

Beach stopped his car and exited his vehicle just as the defendant was exiting his vehicle. Beach testified that one week prior he had stopped the defendant and issued a citation for violating his restricted driver’s permit. The record showed the defendant’s driver’s licence had been revoked in 1987, but that on December 21, 1990, he had been given a restricted driving permit which enabled him to drive between 6 a.m. and 6:30 p.m. As the defendant proceeded around his car towards the trailer door, Beach ordered him to stop. The defendant obliged but began to walk menacingly towards Beach. When the defendant was about 8 to 10 feet from Beach, the defendant said “I’m going to show you how tough you are.” According to Beach, the defendant then delivered a right kick directed at the officer’s groin area and followed immediately with an attempt to punch the officer in the face. Beach deflected the kick with his left hand, while also deflecting the punch although it grazed the side of the officer’s hand. At that point, their bodies made contact and the two fell to the ground.

According to Beach, he fell backwards and the defendant fell on top of him. After about 30 seconds, Beach directed a male bystander to pull the defendant off him. Beach informed the defendant that he was under arrest, told the defendant to remain where he was, and called for assistance. The defendant, ignoring Beach’s orders, went inside his trailer.

A group of police officers from various surrounding communities arrived at the scene. In attempting to subdue the defendant, the officers were confronted with the defendant wielding a beer bottle. After a brief scuffle with the defendant, the officers arrested him and transported him to jail.

The defendant presented three witnesses to testify on his behalf. The gravamen of their testimony was that Beach and the defendant fell because Beach pulled the defendant towards him causing the two of them to slip on the icy road. The witnesses recalled that they were only two feet away from Beach and the defendant. The witnesses also indicated that after a mere five seconds they helped both Beach and the defendant up from the ground at which point the defendant went into his trailer.

The defendant presented further evidence indicating he sustained various injuries as a result of the allegedly rough treatment given him by the arresting officers. The witnesses testified the police hit the defendant with a flashlight even though the defendant did not resist in any way. According to the witnesses, the defendant’s face was bloodied and bruised, and he suffered a black eye as a result of the alleged treatment administered by the arresting officers.

On rebuttal, the State presented evidence of an incident involving the defendant in 1982. Jeffrey Fowler testified that on May 30, 1982, he was a police officer in Sandwich, Illinois. On that date, Fowler responded to a call from Officer Goetz regarding a stopped vehicle. Arriving at the scene, Fowler encountered a large and boisterous crowd telling the police to leave the defendant and another man alone. Fowler learned that the defendant was stopped for speeding but refused to post bond. While Fowler and another officer escorted the defendant back to the police car, the defendant resisted. The officers placed the defendant on the hood of the car and handcuffed him. In the process, the defendant kicked Fowler.

At the police station, Fowler testified, the defendant was “really violent.” Fowler handcuffed the defendant to a post and monitored him. After 10 minutes had elapsed, Fowler asked the defendant if he had calmed down to which the defendant replied that he had, thus allowing Fowler to remove the handcuffs. As Fowler attempted to commence the booking process, the defendant punched him in the jaw.

The jury found the defendant guilty of all three charges. The trial court denied the defendant’s motion for a new trial and this appeal follows.

We first address whether the trial court erred in allowing into evidence testimony of the defendant’s prior criminal conduct of resisting and striking a police officer. Evidence of other crimes or wrongful conduct is not admissible to show the defendant’s character or propensity to commit crime or wrongful acts. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Where evidence has no value beyond the inference that the defendant has a propensity for the crime charged, the evidence is excluded. The underlying rational is that such evidence is objectionable not because it has no appreciable probative value, but because it has too much. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) The law distrusts the inference because a man has committed other crimes, he is more likely to have committed the crime charged. People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

However, evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant’s character or propensity to commit crime. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Thus, evidence of the commission of other crimes is admissible if it is relevant to prove modus operandi, motive, knowledge, intent, absence of mistake or accident, or that the crime charged was part of a common design, scheme, or plan of the defendant. People v. Kissinger (1983), 116 Ill. App. 3d 826, 452 N.E.2d 615.

In the instant case, the State argues the evidence of the prior incident was admitted for the limited purpose of establishing the defendant’s intent as well as to prove the absence of innocent mistake or accident. Specifically, the State argues the defense presented was that the incident resulted from an innocent frame of mind on the defendant’s part and that given the conflicting evidence presented in the case, the defendant’s intent became the controlling issue.

The record shows the trial court, by allowing the prior incident into evidence over the defendant’s vehement objection, appears to have mistakenly applied the so called “Montgomery rule” established in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. The court in Montgomery held that prior convictions may be admitted if (1) the prior offense was punishable by imprisonment in excess of one year or involved dishonesty, and (2) if either the conviction or the release from confinement occurred within the preceding 10 years. If these two requirements are met, the trial court must then weigh the probative value of the evidence against what prejudicial effect the evidence might have on the trier of fact. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.

After recognizing the trial court’s apparent confusion, the State correctly informed the trial court that this case did not involve a “Montgomery type” situation because the defendant did not testify. Instead, the State argued the evidence was being offered to prove intent and the absence of accident. In ruling on the matter, the trial court made the following observation:

“THE COURT: I’m not having any problem with this other that [sic] the age of the thing is legally admissible. The only question, does the court want to use his discretion.”

After further argument, the trial court stated in response to the defendant’s contention concerning the fact that the defendant could have been impeached "with this evidence had he taken the witness stand:

“We’re not talking about that, and even then the State would be asking to have this considered as evidence of intent other than just impeachment.”

Thereafter the trial court ruled as follows:

“THE COURT: I’ll have to allow it, it’s in the Montgomery period and it does go to intent. I will allow it.”

The above colloquy shows the trial court improperly relied upon the Montgomery rule in making its decision. Moreover, as to the State’s claim that the evidence was presented to show intent and absence of innocent mistake or accident, we note that no claim of accident was made by the defendant.

Furthermore, it is well established that evidence of another offense may be used only when the other offense has some threshold similarity to the crime charged. (People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.) It is this similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) Where evidence of prior bad acts is offered to prove modus operandi or that the crime charged was part of a common design or plan, there must be a high degree of identity between the facts of the crime charged and the other offense in which the defendant was involved. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) The two offenses must share such distinctive common features as to earmark both acts as the handiwork of the same person. People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.

We find that the 1982 incident and the incident involved in the instant case do not share sufficient similarities to satisfy the other crimes rule. In People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515, the trial court properly admitted evidence of similar criminal conduct committed against the victim to show the defendant’s intent. However, the defendant in Illgen engaged in such conduct against his wife over a period of 19 years and such incidents involved a pattern of beatings to the victim’s head, concluding with the defendant telling others that the victim had hit her head on a door or some other object.

In contrast, the prior incident does not demonstrate modus operandi or that the crime charged in this case was part of a common design or plan. Two incidents over a period of eight years involving the defendant engaged in a scuffle with a police officer after an arrest does not warrant application of the other crimes rule. It is apparent that the evidence might lead a jury to conclude that the defendant has a propensity to assault police officers which is precisely the reason why such evidence must be excluded. We conclude, therefore, admission of the evidence was error.

We next address whether the trial court erred in denying defendant’s motion to sever the aggravated battery charge from the traffic charges. In a ruling on a motion to sever, the trial court is clothed with substantial discretion (People v. Peterson (1982), 108 Ill. App. 3d 856, 439 N.E.2d 1103), and absent an abuse of discretion, the trial court judgment will not be reversed on appeal. (People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.) Among the factors to be considered in determining whether to sever charges for trial include the proximity of time and location of the various charges and the identity of evidence which would be presented to prove each charge. People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.

Section 111 — 4(a) of the Code of Criminal Procedure of 1963 provides:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.” Ill. Rev. Stat. 1989, ch. 38, par. 111—4(a).

In the instant case, the defendant asserts that after becoming aware during discovery that the State would attempt to impeach him with evidence of the 1982 incident, he moved to sever the traffic charges from the aggravated battery charge because the other crimes evidence was wholly unrelated to the traffic charge and would only serve to further prejudice the defendant’s case. However, because we have determined that the other crimes evidence should not be allowed into evidence, the danger of prejudice to the defendant on remand no longer exists. Accordingly, an economy of time will result from trying the cases together. See People v. Peterson (1982), 108 Ill. App. 3d 856, 439 N.E.2d 1103.

Finally, the defendant asserts that he was not proven guilty beyond a reasonable doubt. After reviewing the record in the instant case, we conclude that a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

For these reasons, we reverse the judgment of the circuit court of Bureau County and remand this cause for a new trial consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE GORMAN

text:
    CLIFFORD STASIAK, a Minor, by his Father and Next Friend, Michael Stasiak, Plaintiff-Appellant, v. ILLINOIS VALLEY COMMUNITY HOSPITAL et al., Defendants (William J. Farley, Defendant-Appellee; Michael Stasiak et al., Contemnors-Appellants).
    Third District
    No. 3—91—0211
    Opinion filed April 7, 1992.
    Thomas M. Harris, of Jerome Mirza & Associates, Ltd., of Bloomington (Jerome Mirza, of counsel), for appellants.
    Rooks, Pitts & Poust, of Joliet (Robert R. Gorbold, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiff was ordered by the trial court to submit to a magnetic resonance imaging (MRI) test pursuant to defendant’s Supreme Court Rule 215 (134 Ill. 2d R. 215) motion. Conflicting medical affidavits were submitted in support of and in opposition to the motion. The safety of the plaintiff undergoing an MRI necessarily under sedation in this case is disputed by the medical experts.

Plaintiff’s attorney and plaintiff’s father (and next friend) refused to submit the plaintiff to the MRI. Based on their failure to comply with the trial court’s order, they were found in contempt of court and fined $100 each. This appeal follows. We reverse and remand.

Plaintiff is now eight years of age. He was bom at Illinois Valley Community Hospital. Delivered by William H. Farley, M.D., plaintiff was born 33V2 weeks into his mother’s pregnancy. Plaintiff alleges in his suit that defendants’ negligence caused him to suffer brain damage at birth resulting in his cerebral palsy.

As part of discovery, defendant Farley moved to require the minor plaintiff to undergo a urine test, a dilated funduscopy, a neurological exam, an exam by a genetics specialist, and a magnetic resonance imaging (MRI) test. The motion alleged that the tests were necessary to “further investigate the nature and cause of the minor plaintiff’s cerebral palsy” and that “no other comparable tests had been run for the specific findings sought” by these tests. Plaintiff objected only to the request for the MRI because sedation and/or anesthesia would be required, given the minor plaintiff’s spasticity, with such sedation being an invasion of Clifford’s body.

In support of this position, plaintiff filed the affidavits of two medical doctors. Dr. David Abramson, a physician and surgeon board certified in pediatric medicine, newborn and perinatal medicine, and emergency medicine, stated:

“In a child of the age and physical disability of [plaintiff], with his spasticity especially, [plaintiff] would require sedation with drugs to undergo an MRI which would pose, essentially, the risks of anesthesia. These risks include all of the possible adverse results of anesthesia including cardiac arrest.”

Dr. Robert Filers, a board-certified physician in physical medicine and rehabilitation, stated that he had personally examined the plaintiff and was familiar with plaintiff’s condition of spastic diplegia. He was also familiar with MRI testing. To properly sedate the plaintiff for the examination, Dr. Filers stated:

“[Considering his disability, spasticity, and age, you would have to completely paralyze him for this test, which would have to guarantee he would be sound asleep, with no spasms for an hour. Chloral hydrate probably would be used for this purpose and you may have to add a lot of valium to block out spasms. He could develop many adverse reactions as a result of anesthesia. He could have respiratory arrest which could lead to cardiac arrest. He could also have an allergic reaction with increased seizures.”

In response to plaintiff’s medical affidavits, defendant filed the affidavit of Dr. Steven Coker, a board-certified physician in pediatric neurology. Dr. Coker was the physician who had been retained by defendant to conduct the MRI. He stated that it was both necessary and crucial to perform the MRI of the brain to fully investigate and determine the cause of the plaintiff’s cerebral palsy. He stated that the test was similar to a computed axial tomography (CAT) scan procedure and would require the plaintiff to remain still for approximately one hour. As to sedation, he stated that the minor plaintiff would be given chloral hydrate and atarax, two mild sedatives which would have the effect of relaxing the plaintiff and mildly sedating him. According to Dr. Coker, “These drugs are not anesthetic agents” and “pose no medical risk to the minor [p]laintiff. They are used to assist the minor [p]laintiff in lying still during the test.” (Emphasis in original.)

Plaintiff then filed a supplemental affidavit of Dr. Eilers which disagreed with Dr. Coker's statement that the use of the drugs chloral hydrate and atarax posed “no medical risk to the minor plaintiff.” Dr. Eilers further stated that a central nervous system depressant such as Valium would probably also be used to prevent spasms. He quoted from the Physician’s Desk Reference (PDR) that “the potentiating action of the hydroxyzine [Valium] must be considered when the drug is used in conjunction with central nervous system depressants such as narcotics, non-narcotic analgesics, and barbiturates.” The adverse reactions to Valium reported in the PDR include bradycardia and cardiovascular collapse.

Dr. Abramson’s original affidavit was also supplemented. He did not believe that an MRI could be performed safely on this particular plaintiff with the use of chloral hydrate or atarax. Further, he said that although these medications are not classified as general anesthetics, they were soporifics and that their use was “tantamount to the use of general anesthesia.”

Defendant then submitted the affidavit of Dr. Mercedes Alcantara, a board-certified anesthesiologist. She defined general anesthesia in detailed fashion. She stated that it entailed the effects of analgesia, amnesia, and sedation all together. Dr. Alcantara stated that chloral hydrate was a sedative/hypnotic, atarax was a sedative, and that the administration of chloral hydrate and atarax in the doses suggested by Dr. Coker posed essentially no risk to the plaintiff when administered with proper medical supervision. According to Dr. Alcantara:

“These drugs are similar in effect to sleeping pills and are commonly used to assist in MRI and CAT scan procedures with pediatric patients. They will not cause a state of general anesthesia and do not pose a risk comparable to the administration of general anesthesia.”

Given this conflicting medical evidence, the circuit court ordered plaintiff to submit to the magnetic resonance imaging within 21 days. Plaintiff failed to comply, and the circuit court found Michael Stasiak in contempt of its order and found plaintiff’s attorney in contempt for violation of Supreme Court Rules 201 and 219. The court stayed trial of the cause as a sanction pursuant to Supreme Court Rule 219 until such time as plaintiff submits to the test.

The plaintiff and his attorney argue the circuit court abused its discretion in ordering the minor plaintiff to submit to MRI testing. They contend (1) that the record is devoid of evidence to establish the relevance or necessity of the MRI in this action and (2) that defendant failed to establish the safety of the test as it relates to this particular plaintiff under sedation.

In pertinent part, Supreme Court Rule 215 states as follows:

“In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court, upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination, or to produce for such examination the person in custody or under legal control who is to be examined.” (134 Ill. 2d R. 215(a).)

When all requirements of the rule have been met, the trial court, in its discretion, can order a physical or mental examination under appropriate conditions. The trial court’s order will only be reversed upon a showing of an abuse of discretion. (In re Conservatorship of the Estate of Stevenson (1970), 44 Ill. 2d 525, 256 N.E.2d 766.) Rule 215 is designed as an aid to discovery when the plaintiff’s medical condition or the cause of his medical condition is in issue. The defendant’s Rule 215 request is usually made after plaintiff has provided his medical records under Supreme Court Rule 214 (134 Ill. 2d R. 214). Based on the affidavits of compliance filed by plaintiff in this case, it would appear that plaintiff has furnished defendant with all of his medical records.

Plaintiff concedes that the rule sanctions the MRI test. The controversy presented is the competing interest of the defendant to investigate and completely satisfy his curiosity by the use of generally accepted medical tests and the plaintiff’s interest in his own safety and comfort given the risks of a particular procedure.

Rule 215 was recently examined in Sarka v. Rush-Presbyterian-St. Luke’s Medical Center (1990), 207 Ill. App. 3d 587, 566 N.E.2d 301. In that medical malpractice action, minor plaintiff Saul Sarka was ordered to submit to an MRI or CT scan under sedation with chloral hydrate. Sedation was required to obtain a clear, motion-free scan. Defendant’s expert, with a motion-free CT scan, testified that he would be able to make a diagnosis as to whether or not Saul’s condition was congenital. Plaintiff’s mother and attorneys were held in contempt when they refused to comply with the court’s order. Although defendant’s expert had stated that the risks associated with chloral hydrate were negligible in the dosage recommended, plaintiff’s expert countered that disorientation, incoherence, ataxia, dizziness, nausea, vomiting, diarrhea, and skin rashes were risks associated with chloral hydrate. Death, cardiac arrest, and respiratory failure were associated with toxic doses of chloral hydrate and with chronic use of the drug. Plaintiff’s expert stated that it was impossible to determine in advance whether a particular individual will experience an adverse reaction to chloral hydrate. The reviewing court affirmed the trial court’s order compelling plaintiff to submit to the examination under sedation. The burden-shifting approach enunciated in Lefkowitz v. Nassau County Medical Center (1983), 94 A.D.2d 18, 462 N.Y.S.2d 903, was adopted by the Illinois Appellate Court.

In Lefkowitz, the New York appellate court reversed an order requiring plaintiff to submit to a hysterosalpingogram, which is a fertility test involving X-ray examinations of the uterus and fallopian tubes after injection of a radiated opaque medium. Plaintiff alleged that she had become infertile as a result of defendant’s negligence. The court stated that, although plaintiff placed her physical condition in controversy when she commenced the lawsuit, an examination should not be required if it presented the possibility of danger to plaintiff’s life or health. Plaintiff had presented uncontradicted medical evidence which established that there was a significant risk and that the test would not necessarily be conclusive on the issue of infertility. The court held that the plaintiff had the initial burden of showing that the proposed test is prima facie dangerous. If that initial burden is met, the burden then shifts to the defendant to demonstrate the safety of the proposed examination.

The New York appellate-level courts have followed Lefkowitz as they have had occasion to address this issue in later cases. In Langelier v. Ford (1990), 159 A.D.2d 851, 552 N.Y.S.2d 992, the minor plaintiff, who was bom prematurely, had severe developmental disabilities and mental retardation due to hydrocephalus. He sued his pediatrician for alleged negligence in diagnosing and treating him. The defendant moved to compel the minor plaintiff to submit to either an MRI or a CT scan under sedation. After a hearing, the trial court ordered the examination over plaintiff’s objection. On review the appellate court cited to Lefkowitz as the controlling law. Plaintiff made a prima facie showing that the sedative was dangerous. In spite of that the court approved the test because plaintiff’s expert also established that the risk of life-threatening complications was only 1% and that those complications were reversible with proper treatment. The order also directed that proposed safety measures which “would significantly reduce the risk” to plaintiff be employed.

Most recently in Thomas v. John T. Mather Memorial Hospital (1990), 162 A.D.2d 521, 556 N.Y.S.2d 720, the New York appellate court also followed the Lefkowitz approach and affirmed an order requiring an MRI or CAT scan under sedation. Defendant had sought to compel the 23-year-old brain-damaged plaintiff who had filed a medical malpractice action to undergo the examination. The court stated that the defendants showed in their affidavits that the CAT scan was a relatively safe, noninvasive, and conventionally accepted method of determining the nature and extent of the plaintiff’s neurological damage. The court also stated that defendants had further established that the sedative chloral hydrate was a mild, nonnarcotic sleeping aid, which was frequently used for young, elderly, and ill patients with few “unfavorable” side effects. Plaintiff’s expert had merely stated that chloral hydrate clearly did represent a risk to plaintiff’s health and offered no details as to how chloral hydrate would be harmful to the plaintiff.

On the record before this court, plaintiff objected to the MRI examination and established by competent medical testimony that it was prima facie dangerous to this particular plaintiff. Defendant did not establish the necessity for the examination. Defendant stated in conclusory terms that it was necessary to perform an MRI of the plaintiff’s brain in order to fully investigate the cause of the minor plaintiff’s cerebral palsy. Defendant also stated that the MRI was “crucial in attempting to determine the cause of the minor plaintiff’s cerebral palsy” but did not state why the MRI was crucial or necessary. This fact distinguishes the instant case from Sarka, where the court affirmed the order granting the test. There the court stated that the MRI, under sedation, would give clear test results and definitively resolve a major legal issue as to whether the minor plaintiff’s medical condition was congenital. Here, there is no showing that the medical records of the plaintiff which are in the possession of the defendant are incomplete or that the MRI will provide additional necessary evidence. It is also clear that there is no evidence before this court to the effect that the MRI results will resolve any major legal issue.

Under the balancing test, the trial court is required to weigh the probative value of the proposed examination as it relates to the litigation against the level of risk to the plaintiff. Once the plaintiff objects to a Rule 215 motion based on risk of harm or death supported by proper medical testimony or evidence, the burden shifts to the defendant. Defendant must then establish by competent medical testimony or evidence that the requested examination has a clear probative value to the litigation’s ultimate issues and that there is a minimal level of risk to the plaintiff.

The legal necessity and/or benefit to be derived from the procedure must substantially outweigh the risk to the plaintiff. The standards to be employed must be flexible, and each case must be judged on its own individual, unique circumstances. In this case the trial court erred in ordering the MRI because of defendant’s failure to establish by competent medical evidence the necessity for the examination.

In determining whether the defendant has met his burden of demonstrating safety, and a minimal level of risk to the plaintiff, the court must also consider certain policy concerns before subjecting a plaintiff to a risk he finds objectionable. Although one does place his physical condition in controversy when he commences a medical malpractice action, a person should not be required to place his health or life in danger as a condition to maintaining suit. While a person may choose to expose himself to a certain level of risk under the care of his own treating physician, this does not mean that the litigant must expose himself to the same level of risk for legal discovery purposes under an examining physician’s direction.

In summary, we conclude that the trial court did abuse its discretion when it granted defendant’s motion to compel this minor plaintiff to submit to an MRI under sedation. That order is hereby vacated. In so ruling, we vacate the contempt orders and the fines assessed against contemnors.

Reversed and remanded.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE HAASE

text:
    DANIEL McVEY, SR., et al., Plaintiffs-Appellants, v. TERRI B. FREDRICKSON et al., Defendants-Appellees.
    Third District
    No. 3—91—0459
    Opinion filed April 9, 1992.
    James R. Standard, of Monmouth, for appellants.
    Donovan S. Robertson, of Braud/Warner, Ltd., of Rock Island, for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs, Daniel and Patricia McVey, filed a petition pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 607(b)), seeking visitation of their two grandchildren, Paul and Rachel McVey. The defendants, Terri and Paul Fredrickson, are the natural mother and stepfather of Paul and Rachel. Following a hearing, the trial court granted the plaintiffs visitation with their two grandchildren one Saturday per month from 8 a.m. to 8 p.m. or at any other time the parties agree. The plaintiffs appeal, contending that the amount of visitation granted by the trial court was inadequate.

The plaintiffs are the paternal grandparents of Paul and Rachel. The natural father, Edward McVey, and the natural mother, Terri Fredrickson, had their marriage dissolved in March of 1987. The judgment of dissolution awarded custody of the children to Edward. On April 1,1987, Edward died.

Following Edward’s death, Terri worked two jobs. During that period, the children spent a considerable amount of time with the plaintiffs. They often stayed at the plaintiffs for a portion of each school day and sometimes stayed overnight. This level of contact continued until Terri remarried in February of 1989.

At the hearing on the plaintiffs’ petition, Terri testified that after her remarriage, the children gradually spent less time with the plaintiffs. Terri explained that the decline in the amount of visitation was attributable to her remarriage and that she was currently a full-time housewife. Terri further testified that she and her current husband have attended the First Christian Church in Monmouth, Illinois, continuously for the past two years. She stated that it was important that her children attend church with her. She also stated that the children would miss out on church activities if they did not attend every Sunday.

In their petition for visitation, the plaintiffs requested that the court enter an order awarding them visitation with the children on “alternate weekends, alternate holidays, and an extended period during the summer months.” Following the hearing on the petition, the trial court granted the plaintiffs visitation with the children the first Saturday of every month from 8 a.m. to 8 p.m. or at any other time the parties agree.

On appeal, the plaintiffs argue that the amount of visitation awarded to them is inadequate. They contend that it is in the children’s “best interests” to allow more grandparental visitation.

Section 607(b) of the Act provides in relevant part:

“The court may grant reasonable visitation privileges to a grandparent *** of any minor child upon petition to the court by the grandparents *** if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce such visitation privileges.” Ill. Rev. Stat. 1989, ch. 40, par. 607(b).

Regarding the question of the reasonableness of the visitation granted in the present case, we note that the custody, care, and nurture of a child reside first with the parents. (See Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208.) Moreover, parents are responsible for the education and support of their children, burdens obviously not placed on grandparents. (In re Marriage of Lindsey (1987), 158 Ill. App. 3d 769, 511 N.E.2d 198.) Absent a showing of manifest injustice, a trial court’s determination regarding visitation is within its sound discretion and will not be disturbed on review. See In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.

Here, we are mindful of the fact that the plaintiffs and minor children enjoyed a close and loving relationship following Edward’s death. Nevertheless, we find that the trial court’s decision was not an abuse of discretion. The circumstances of the family changed substantially from the time of the mother’s divorce until her remarriage. The instant record shows that after the mother remarried, the children gradually enjoyed more and more of a normal family life. The mother also noted that it was important that the children attend church with her on Sundays.

It is not up to the court to regulate every detail of family relationships. What families decide to do voluntarily to encourage family visitation with grandparents is out of the ambit of court action. The court is only involved to the extent of ordering certain minimal contact once the court has determined such contact to be in the best interests of the child. Under the circumstances, we find that while a different trial court may have granted more visitation, the instant trial court’s grandparental visitation order of one Saturday per month was not an abuse of discretion.

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

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JESSE JAMES LEE, Defendant-Appellee.
    Third District
    No. 3—91—0551
    Opinion filed April 9, 1992.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both 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 STOUDER

delivered the opinion of the court:

The State charged the defendant, Jesse James Lee, with unlawful possession of a controlled substance with the intent to deliver. The trial court subsequently granted the defendant’s motion to suppress the evidence seized from him during a police search. The State appeals, and we affirm.

The record shows that a search warrant was issued for the person of Jesse James Lee, his residence and a white Buick registered to him. While executing the warrant, the police had a conversation with a confidential source who informed them he had seen a quantity of cocaine in a black vehicle located behind the defendant’s home. Upon learning that the black vehicle was registered to the defendant, the police asked him whether he owned it and would consent to a search of it. The defendant refused to consent and told the police that it was not his vehicle. He stated that he had sold it some time earlier but had not transferred the title because he could not find his title when he sold it.

The police then asked the defendant for the keys to the white vehicle named in the search warrant, and the defendant directed them to a kitchen drawer where he kept his keys. The police took the keys and found that one of them fit the trunk of the black vehicle. Large quantities of drugs were found in the trunk of that vehicle.

The defendant filed a motion to suppress the evidence seized from his black vehicle during the execution of the search warrant. He argued that the police had exceeded the scope of the warrant when they searched the vehicle since it was not named in the search warrant. The State argued that the defendant lacked standing to contest the search since he had abandoned the vehicle by claiming he did not own it. In addition, the State contended that exigent circumstances existed which prevented the police from obtaining a search warrant for the black vehicle.

The trial court granted the defendant’s motion, finding that the defendant had standing to contest the search. It also found that there were no exigent circumstances to prevent the police from securing the vehicle and obtaining a search warrant based on the new information provided by the informant.

The State first argues on appeal that the trial court erred in finding that the defendant had standing to challenge the search of the black vehicle. Specifically, it contends that the defendant lacked standing because his disclaimer of ownership constituted abandonment of his expectation of privacy in the vehicle.

In support of its position, the State relies upon People v. Hanlon (1985), 137 Ill. App. 3d 305, 483 N.E.2d 1332, and People v. Slawek (1981), 98 Ill. App. 3d 1146, 425 N.E.2d 26. Those cases involved situations where defendants denied to the police that they owned property which was searched. The courts held that the disclaimers resulted in the defendants’ abandoning the property and losing their expectations of privacy in it. As such, they had no standing to challenge the search of the property.

We note, however, that the result of those two cases was called into question in People v. Dowery (1988), 174 Ill. App. 3d 239, 528 N.E.2d 214. In Dowery, the court found that a distinction should be drawn between cases where a defendant denies to the police that he owns property and cases where a defendant denies ownership at a suppression hearing. The court held that a mere disclaimer of a property interest made to the police prior to a search does not result in the defendant’s loss of standing.

In the case at hand, although the defendant denied ownership prior to the search, he did not deny ownership at the suppression hearing. As such, following Dowery, we find that the defendant’s disclaimers did not result in his abandoning his expectation of privacy in the black vehicle.

We also find that the record supports the trial court’s decision that the defendant had a reasonable expectation of privacy in the black vehicle. The vehicle was registered to the defendant, and he had the keys to the vehicle in his possession. Further, the confidential source had told the police that the defendant stored cocaine in the vehicle. Based on this evidence, we cannot say that the trial court’s decision that the defendant had standing to challenge the search was manifestly erroneous.

The State also argues that even if the defendant had standing to challenge the search, the trial court erred in finding that the warrant-less search was unreasonable and not justified by exigent circumstances. The State contends that the law permits the warrantless search of a vehicle when an officer has probable cause to search and securing a warrant is not reasonably practicable. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) It argues that in the instant case it was not reasonably practicable to secure a warrant. We disagree.

The trial court found that it was reasonably practicable for the police to obtain a search warrant. We find that the evidence supports the trial court’s decision. The record showed that the defendant was under arrest and that there were enough police officers present to secure the vehicle while a search warrant was obtained. Based on this evidence, we find that the warrantless search was improper since the police could easily have obtained a warrant without fear that the evidence would be tampered with while they waited for the issuance of the warrant.

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

Affirmed.

BARRY, P.J., and GORMAN, J., concur.