author: JUSTICE WOODWARD PRESIDING JUSTICE McCULLOUGH,

text:
    HERLIHY MID-CONTINENT COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (David Kutina, Appellee).
    First District (Industrial Commission Division)
    No. 1—92—1437WC
    Opinion filed August 13, 1993.

      Garofalo, Hanson, Schreiber & Vandlik, Chartered, of Chicago, for appellant.
    Frederick S. Grahn, of Grahn & Grahn, Ltd., of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

On October 8, 1986, claimant, David Kutina, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (HI. Rev. Stat. 1985, ch. 48, 138.1 et seq.). Therein he alleged injuries to his back and legs arising out of and in the course of his employment with the employer, Herlihy Mid-Continent Company. After a hearing held on February 25, 1989, the arbitrator issued a “Memorandum of Decision,” wherein he found the statute of limitations did not bar the claim and that claimant was entitled to 75 weeks of temporary total disability (TTD). On review the Industrial Commission (Commission) affirmed and adopted the arbitrator’s decision. The circuit court confirmed the Commission’s decision, and this timely appeal followed.

The employer argues on appeal that the Commission erred in finding that it was estopped to assert a statute of limitations defense.

On November 23, 1982, claimant, a carpenter, was working for the employer. While walking backwards and unraveling a coil of wire, claimant lost his footing and fell down. Claimant immediately felt pain in his right lower back and was unable to stand up for 15 minutes. A co-worker drove him to the construction office, where he stayed until the end of the work day. Claimant went to see Dr. D.L. Doorinkaat, a chiropractor who had previously treated him for a neck condition. Claimant was off work for a week following the accident. He continued to receive treatment from Dr. Doorinkaat on a regular basis into January 1983, at which time claimant felt sufficiently improved to discontinue treatments. The employer’s insurance carrier paid Dr. Doorinkaat’s bills.

Due to a recurrence of his back pain, claimant began seeing another chiropractor, Dr. Scott Kozek, on March 19, 1984. Subsequently, an insurance investigator from Argonaut Insurance met with claimant. The investigator asked claimant “if [he] was working and how [he] was doing.” Claimant described his back problems. The investigator said nothing to claimant about the relevant statute of limitations period. Claimant continued to receive treatments from Dr. Kozek throughout 1984 and 1985. The insurer paid Dr. Kozek’s bills and, at no time prior to the end of the statute of limitations period, did it inform claimant of the need to file a claim within said period.

In a letter dated November 9, 1984, the insurance investigator asked Dr. Kozek to complete a standard report form concerning claimant’s condition. In the completed form dated November 16, 1984, Dr. Kozek wrote that X rays taken on March 29, 1984, indicated subluxations of the L4 vertebra and both iliac joints. At that time, Dr. Kozek stated that he was unable to determine whether the injury was permanent. On March 18, 1985, Dr. Kozek completed the same form submitted by the insurer and again stated that claimant’s condition was due to subluxations of the L4 vertebra and both iliac joints and that it was uncertain whether the injury was permanent in nature.

In March 1985, claimant was examined by Dr. John Dwyer at the insurer’s request. Claimant was not informed by Dr. Dwyer about the statute of limitations, nor was he ever shown a copy of Dr. Dwyer’s report, which stated that there were no objective indications of disability in claimant’s lower back and that he could work normally with no restrictions.

In a July 29, 1985, letter to the insurer, Dr. Kozek stated that he was not certain when his treatment of claimant would conclude. He further stated that he expected to treat claimant every three or four weeks for the next 12 to 18 months. Dr. Kozek concluded the letter by inviting the insurer to discuss claimant’s condition further. On November 2, 1985, Dr. Kozek again wrote the insurer, informing it that claimant’s treatment would continue at three- to four-week intervals over the next 12 to 14 months. Dr. Kozak was unable at that time to determine a final date of treatment or whether claimant’s condition was permanent. Also, he once more invited the insurer to discuss this matter further. Dr. Kozek’s notes indicate that on February 21, 1986, he talked with Brenda Moore of the insurance company regarding claimant’s physical status.

Claimant continued receiving treatments from Dr. Kozek in 1986. On March 11, 1986, claimant was examined by Dr. Anthony Brown at the insurer’s direction. Dr. Brown concluded that claimant was not impaired, and, therefore, no treatment of his back was required. In a letter dated April 9, 1986, the insurer notified claimant that it would pay no additional medical expenses. Claimant continued treatment with Dr. Kozek and paid his own medical expenses. It should be noted that throughout the period following his accident, claimant worked continuously for the employer.

On May 5, 1986, Dr. Kozek referred claimant to Dr. Gleason, an orthopedic surgeon, for an independent evaluation of claimant. Dr. Gleason determined that claimant was experiencing sciatic neuritis coming from the lumbar spine. On October 8, 1986, claimant filed an application for adjustment of claim.

There is no question there was an accident, and the employer is responsible for the medical expenses within the limitations period. Section 8(a) requires the employer pay the medical expenses. Section 8(a) (111. Rev. Stat. 1985, ch. 48, par. 138.8(a)) specifically provides:

“The furnishing by the employer of any such services or appliances is not an admission of liability on the part of the employer to pay compensation.
The furnishing of any such services or appliances or the servicing thereof by the employer is not the payment of compensation.”

An apparent reason for not calling medical payments compensation is to encourage employers to keep abreast of their employees’ medical conditions with respect to injuries. The employer is also responsible for penalties for failure to pay medical expenses.

As stated above, the issue before this court is whether the Commission’s decision that the employer was estopped to assert a statute of limitations defense is against the manifest weight of the evidence.

The statute reads in relevant part:

“[I]n any case, other than one where the injury was caused by exposure to radiological materials or equipment or asbestos unless the application for compensation is filed with the Commission within three years after the date of the accident, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred.” Ill. Rev. Stat. 1985, ch. 48, par. 138.6(d).

The employer argues the following. Because the evidence is undisputed, the question before us is a matter of law rather than factual interpretation, and, therefore, the Commission’s decision is not binding upon us. Further, the record shows that any contacts between claimant and the insurance company did not deal with the payment of compensation. Nor did these contacts involve any misrepresentations, fraud, or undue pressure to deprive claimant of compensation. Moreover, the employer maintains that Schumann v. Industrial Comm’n (1975), 61 Ill. 2d 241, is controlling, rather than Kaskaskia Constructors v. Industrial Comm’n (1975), 61 Ill. 2d 532, upon which the Commission relied.

In response, claimant contends that the evidence demonstrates a course of conduct on the part of the employer’s insurance company that caused claimant’s detrimental reliance thereon. Additionally, claimant argues that Kaskaskia Constructors v. Industrial Comm’n (1975), 61 Ill. 2d 532, should control this appeal.

Initially, we note that the employer incorrectly asserts that this issue is a matter of law rather than of factual interpretation. While the facts are not in dispute, there is clearly more than one conclusion that could be drawn from them. Only when undisputed facts are susceptible of only a single inference does the issue become one of law. (Fischer v. Industrial Comm’n (1986), 142 Ill. App. 3d 298.) The Commission’s decision on a question of fact will not be disturbed unless it is against the manifest weight of the evidence. Williams v. Industrial Comm’n (1991), 216 Ill. App. 3d 536.

The history and chronology of claimant’s injury and treatment follow:

Date: Action:
November 23,1982 Claimant’s injury.
November 1982 through Claimant was treated by Dr. Doorinkaat. January 1983
Claimant is first treated by Dr. Kozek. March 19,1984
Insurance investigator met personally with claimant. * April 1984
Insurance company representative sent Dr. Kozek a standard insurance report. Dr. Kozek advised the insurance company regarding claimant’s X rays. *November 9,1984
Insurance company investigator sent Dr. Kozek a standard report form and requested him to complete same. He returned it and stated that it was uncertain as to whether claimant’s injury was permanent. *March 18,1985
*March 1985 Insurance company contacted claimant and arranged to have claimant examined by Dr. Dwyer, who found that claimant had no disability.
July 29,1985 Dr. Kozek advised insurance company that claimant would require treatment for 12 to 18 months longer and invited an insurance company representative to discuss the permanency of claimant’s injury.
November 23,1985 Statute of limitations ran.
February 21,1986 Telephone call by Dr. Kozek to Brenda Moore, insurance company representative, regarding claimant’s condition.
*March 11,1986 Insurance company arranged for examination of claimant by Dr. Brown, who determined that claimant had no disability.
* April 9, 1986 Insurance company advised claimant it would not pay additional medical bills.
May 5, 1986 Dr. Kozek referred claimant to Dr. Gleason, who diagnosed claimant as having sciatic neuritis.
October 8,1986 Claimant filed an application for workman’s compensation.
Each of the above items designated by an asterisk shows affirmative action taken by the insurance company with claimant or Dr. Kozek.

Throughout the relevant period, claimant and his doctor had maintained a working relationship with the employer’s insurance company as indicated above. As the employer admits, at no time during the statutory period did it or its insurance company ever tell claimant about the three-year statute of limitations. As noted by the asterisks above, claimant or his doctor was contacted by representatives of the employer’s insurance company. Claimant was examined twice by a different insurance company’s doctor, the first of which occurred before the statute of limitations had run and the second after the statute of limitations had run. The insurance company sent claimant to be examined by Dr. Anthony Brown in March 1986. In April 1986, claimant was advised by the insurance company that it would no longer pay any of the medical bills and, further, that claimant did not have a compensable condition. It should be noted that all of claimant’s medical bills were paid from November 1982 through April 9, 1986, and that Dr. Brown’s examination at the insurance company’s request was performed after the statute of limitations ran and prior to the time claimant was advised that the insurance company would not pay additional medical bills.

Kaskaskia’s facts, set forth below, are far more similar to those of the appeal at bar than Schumann’s. In Kaskaskia, claimant was injured on June 18, 1971. On March 30, 1972, he received a TTD payment for the period of July 9, 1971, to August 27, 1971. On August 30, 1972, the insurance carrier paid a physician for treatment given claimant on May 17, 1972, and June 23, 1972. In February 1973, claimant was told that only surgery could correct his condition. Claimant advised the insurer that he was scheduled for surgery on April 10, 1973. In March 1973, two representatives of the insurer came to claimant’s home and discussed the matter with him. On April 2, 1973, claimant received a letter from the insurance carrier that it had concluded his present complaints were not related to the June 1971 accident and, accordingly, it would not pay for any additional treatment. The Kaskaskia claimant filed his application for adjustment of claim on April 3, 1973. On April 5, 1973, the insurer paid for physician’s services rendered to claimant on October 11 and December 27,1972.

In Kaskaskia, the Commission found that the disabling condition resulting from the accident was temporary and had not reached a state of permanency and entered an award pursuant to section 19(b) of the Act. However, it should be noted that in that case the claimant received TTD payments for a period of approximately seven weeks. The circuit court confirmed the Commission’s decision and held as follows:

“Petitioner’s uncontroverted testimony shows that the representatives of respondent’s insurance carrier discussed his claim with him and did not advise him that the limitations period was about to run. The fact that petitioner withheld filing an application for adjustment of claim until receipt of the letter denying liability would support a finding that petitioner relied upon the conduct of the insurance carrier’s representatives. Implicit in the decision of the Industrial Commission is the finding that by this conduct respondent was estopped to assert the defense of limitations and we cannot say that the finding is against the manifest weight of the evidence.” (Emphasis added.) (Kaskaskia, 61 Ill. 2d at 535.)

In the case under consideration , the facts support the Commission’s conclusion that claimant relied to his detriment on the insurer’s conduct, and, as a result, the employer is estopped to assert a statute of limitations defense.

In Schumann, the Commission found that the subject claim was barred by the statute of limitations and the circuit court confirmed the Commission’s decision, and the supreme court affirmed the circuit court’s judgment.

Also, in Schumann, the insurer paid claimant’s medical bills for only one year and did not pay any medical bills after the statute of limitations had run. Moreover, the employer’s insurance company informed claimant that it would not pay his medical bills because he had not filed an application for adjustment of claim. Despite this, claimant did not file a claim with the Commission for six months. The Schumann court found that claimant did not detrimentally rely upon any statement by the insurance carrier; therefore, it held that employer was not estopped to raise the statute of limitations defense.

The case before us represents an entirely different relationship between claimant and insurer than that found in Schumann. Here, claimant had an established working relationship with the insurer that monitored his medical treatment. Within the statutory period, the insurer had an investigator meet with claimant and later had claimant examined by a physician who determined that claimant did have a compensable condition. Nevertheless, this insurer continued to pay for medical expense after the statute of limitations period had run. When the insurer notified the claimant that it would not pay for any additional medical bills, it was basing its decision on the belief that treatment was no longer necessary, not because he had not filed a timely claim.

Moreover, unlike the Schumann claimant, who had no compelling explanation for his delay of six months in filing his application for adjustment of claim, this claimant sought and received independent verification of his need for continuing medical treatment. He then filed his application for adjustment of claim.

Further, as the circuit court in this cause aptly pointed out in its decision and judgment order:

“Importantly, since the [claimant] did not receive temporary total disability payments and he continued working while receiving medical treatments, the employer was not required to report the injury under Section 6(b) of the Act. As a result the Commission did not forward to [claimant] a copy of the handbook which is mailed to all injured employees and informs those employees of their rights and obligations under the Act. The handbook specifically notifies and informs the employee of the statute of limitations. Again, because the [claimant] was not a [malingerer] and did not take time away from work, he was deprived of information necessary to help him file a timely Application for Adjustment of Claim.”

Based upon Kaskaskia and the record before us, we find that claimant relied to his detriment upon the insurer’s conduct and silence regarding the statute of limitations period. Accordingly, we hold that the Commission correctly decided that the employer was estopped to assert the statute of limitations defense.

The judgment of the circuit court is affirmed.

Affirmed.

SLATER and RARICK, JJ., concur.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

I do not agree that the instant case is similar to the facts in Kaskaskia. The facts in this case are similar to those in Schumann.

As the majority states, there was an accident and the employer is responsible for the medical expenses within the limitations period. Also, as pointed out, section 8(a) of the Act requires the employer pay the medical expenses. Section 8(a) specifically provides:

“The furnishing by the employer of any such services or appliances is not an admission of liability on the part of the employer to pay compensation.
The furnishing of any such services or appliances or the servicing thereof by the employer is not the payment of compensation.” Ill. Rev. Stat. 1985, ch. 48, par. 138.8(a).

An apparent reason for not calling medical payments compensation is to encourage employers to keep abreast of its employees’ medical conditions with respect to injuries. The employer is also responsible for penalties for failure to pay medical expenses.

The supreme court on the same day filed Schumann and Kaskaskia. Neither Justice Kluczynski in Schumann nor Justice Goldenhersh in Kaskaskia referred to the other case. The only reference to the two cases is in the dissent of Justice Ryan in Kaskaskia. A quote from Schumann applies to this case. In Schumann, the supreme court stated:

“A review of the record, however, reveals a complete absence of any showing of fraud or undue pressure to deprive claimant of compensation. His own testimony discloses that all conversations with Hoya, the insurance broker for the employer, related solely to questions regarding the payment of medical bills and contained no references to compensation. There is no testimony pertaining to any statement or representation by Hoya attempting to mislead claimant concerning the distinction between the payment of medical bills and the payment of compensation upon which the statute of limitations is based. Claimant’s only contact with the insurance company occurred over one year after the date of the accident. Moreover, when he was informed that the insurance company would no longer pay his medical expenses because he had not filed an application for adjustment of claim, he delayed for almost 6 months before he filed the application. Claimant has failed to establish any misrepresentation or statement by Hoya, or a representative of the insurance company, upon which he relied to his detriment.” (Schumann, 61 Ill. 2d at 247, 335 N.E.2d at 429.)

In Kaskaskia, there were conversations with the insurance carrier concerning the claim and the claimant received TTD. Claimant had been injured on June 18, 1971. In August 1972, the respondent paid the physician’s treatment services which were rendered in May and June 1972. The TTD payment in Kaskaskia had been made on March 29, 1972. In March 1973, the insurance company representative came to talk to the claimant. The supreme court suggests that in the month that the statute of limitations would run, the insurance company representatives met with the claimant and did not mention the statute of limitations. On April 2, 1973, the respondent notified the claimant that it would deny liability and one day later, the claimant filed his application for adjustment of claim.

No TTD was ever paid by respondent. The majority gives importance to the respondent’s contact with claimant or the doctors. They are six in number of which two were after the statute of limitations had expired and do not contribute to any estoppel.

During the three-year limitations period, the insurance carrier for the respondent had only two direct contacts with the claimant, the first being April 1984 when an investigator spoke with the claimant and in March 1985 when the respondent insurance company notified the claimant to make an appointment for an independent medical exam. With respect to the April 1984 meeting, more than IV2 years before the statute of limitations date, between claimant and an insurance investigator, the record shows nothing in that conversation that would lull claimant or commit the respondent. The March 1985 contact was merely to determine the need for further medical treatment.

After the April 9, 1986, notification that the respondent would not pay any further medical bills, the claimant waited until October 9, 1986, some six months later, to file a claim.

The independent contacts by the respondent’s insurance company with the medical providers is not evidence upon which the claimant can rely. The record is silent as to claimant’s even being aware of these contacts. As the employer was responsible for the medical expenses, their contacts were legitimate as well as authorized by the Act. As to claimant’s knowledge, a person who does not have knowledge of the acts done, and which are claimed to result in estoppel, cannot invoke the doctrine since there cannot be any reliance on the acts which were unknown.

JUSTICE RAKOWSKI joins in this dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    FRANK LEONARD LAPORT, Plaintiff-Appellant, v. LAKE MICHIGAN MANAGEMENT COMPANY, INC., a/k/a Pizza Hut, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—3285
    Opinion filed December 27, 1991.

      Lane & Munday, of Chicago (John Munday, of counsel), for appellant.
    French, Kezelis & Kominiarek, P.C., of Chicago (John P. Prusik and Russell P. Veldenz, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is a personal injury action resulting from a fall in a restaurant bathroom. The case was tried before a jury which returned a verdict in defendant’s favor. The issues on appeal are: (1) whether the trial court erred in denying plaintiff’s motion for a directed verdict and judgment notwithstanding the verdict on the issues of defendant’s negligence and plaintiff’s contributory negligence; (2) whether the trial court erred in refusing to instruct the jury on Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1981) (IPI Civil 2d) based on defendant’s failure to call the district manager as a witness as well as its failure to produce relevant inspection reports; and (3) whether the trial court erred in applying the substantive law of Wisconsin rather than Illinois to the facts of this case. We affirm.

The personal injury at issue arose from an incident which occurred on July 1, 1991, in the men’s bathroom of a Pizza Hut restaurant (Pizza Hut), in Sturgeon Bay, Wisconsin. The bathroom contained a toilet which was located in a 4P-lz- by 5-foot toilet stall with a door that opened out into the bathroom. Upon arriving at the Pizza Hut, plaintiff entered the toilet stall, hit his foot on a jagged pipe protruding from the floor and fell forward, injuring his arm.

The protruding pipe had been part of a railing for use by the handicapped. Prior to the incident, vandals had torn the railing from the wall of the stall leaving a portion of it protruding from the floor. Plaintiff testified that the pipe extended six to eight inches from the floor and bent 45 to 50 degrees toward the right of the toilet. However, Elizabeth Ullman, the manager of Pizza Hut, and Bonnie Potter, the assistant manager, testified that the broken pipe only extended one inch from the floor, 12 to 13 inches to the left and slightly in front of the toilet base. Plaintiff, in his brief, described the bathroom as dimly lit, but Ullman and Potter testified that there was a 48-inch fluorescent light over the sink and a 100-watt light bulb hanging from the ceiling of the toilet stall. The evidence at trial established that both lights were working on the day of the incident. While both Ullman and Potter also testified that Howard Walter, the district manager of Pizza Hut at the time of the incident, had been informed of the broken pipe in the men’s bathroom, their testimony was inconsistent. Ullman stated that the pipe had been broken six days before the plaintiff’s fall, whereas Potter stated that the pipe had been broken for about a month. Potter stated that Walter had come to Pizza Hut on at least two occasions prior to the incident to inspect the restaurant and that he had seen the broken pipe and noted it in his inspection report. According to Ullman’s testimony, she and the cook at Pizza Hut unsuccessfuUy tried to remove the broken pipe prior to the incident at issue. Immediately after plaintiff’s accident, Walter was notified. He came to the restaurant and removed the broken pipe from the floor.

Ullman testified that Walter continued to work for Pizza Hut for four years after the accident, but at the time of the trial he had not been with the restaurant for several years. She also stated that it had been Walter’s practice to make inspection reports of the condition of the premises and document anything unusual, but that the reports were only retained for two years.

At the conference on jury instructions, the trial judge determined that the substantive law of Wisconsin would apply because the allegedly negligent conduct and injury occurred in Wisconsin, defendant’s principal place of business was Wisconsin and it was served in Wisconsin. The jury returned a general verdict in defendant’s favor and this appeal followed.

Plaintiff first contends that the trial court erred in denying his motions for a directed verdict and judgment notwithstanding the verdict (judgment n.o.v.) on the issue of defendant’s negligence and in denying his motion for a directed verdict on the issue of his contributory negligence. Plaintiff acknowledges the standard established by Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, for determining whether a directed verdict or judgment n.o.v. should be granted as “those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510.) However, plaintiff argues that because he was a business invitee, defendant owed him a duty to exercise reasonable care (Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 859), and that this duty was violated when defendant allowed conditions on the premises to exist which threatened his safely. (Lovejoy v. National Food Stores, Inc. (1973), 12 Ill. App. 3d 982, 299 N.E.2d 816.) Plaintiff also claims that where a danger is known to the owner of the premises and hidden from the invitee, the owner has a duty to either remove the danger or give the invitee notice and warning of the peril. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47.) Plaintiff claims that, similarly, in this case, the broken pipe presented a danger that was known to the district manager, the manager, and assistant manager of the restaurant and that this danger was hidden from the plaintiff until he hit his foot on the jagged edge of the pipe. According to the plaintiff, he has established each element of defendant’s negligence by uncontroverted evidence and that any verdict to the contrary based on this evidence should not stand.

However, where controverted issues of fact are presented, motions for a directed verdict or a judgment n.o.v. must be denied. (Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 91, 425 N.E.2d 450.) Additionally, the fact that the jury could have drawn different inferences or conclusions from the evidence is not a basis for setting aside its verdict, and neither the trial court nor reviewing court should sit as a second jury to consider the nuances of the evidence or demeanor and credibility of the witnesses. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 623, 393 N.E.2d 552; Eckdahl v. Lease-A-Plane International Licensing Corp. (1979), 69 Ill. App. 3d 864, 870, 388 N.E.2d 62.) Furthermore, even uncontradicted evidence should not be a basis for overturning a jury verdict if the jury might reasonably have doubted the credibility or accuracy of the witnesses who testified. McClure v. Cywinski (7th Cir. 1982), 686 F.2d 541.

We also note that while an owner or operator has a duty to keep his premises reasonably safe for use by an invitee, the occurrence of an accident standing alone does not establish negligence. (Horn v. Urban Investment & Development Co. (1988), 166 Ill. App. 3d 62, 66, 519 N.E.2d 489; Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 512, 464 N.E.2d 818.) Furthermore, a business invitee has equal responsibility for his own safety, and an owner or operator has no duty to warn of dangers which are open and obvious. Horn, 166 HI. App. 3d at 66-67.

In this case, plaintiff’s arguments fail to address the contradictory testimony regarding the circumstances of the incident which the jury resolved in defendant’s favor. Although the evidence was uncontroverted that there was a broken piece of pipe in the men’s bathroom and that the plaintiff sustained an injury to his arm, the plaintiff was the only witness who claimed that the bathroom was dimly lit or that the broken pipe was six to eight inches long and extended 45 to 50 degrees to the right of the toilet base as well as the other circumstances of the incident. The other witnesses testified that there was a fluorescent light in the bathroom, a 100-watt light bulb in the ceiling of the toilet stall and that both lights were on at the time of the incident. There was also testimony that the broken pipe was only one inch in height and that it was to the left and did not extend past the front of the base of the toilet. Potter and Ullman presented testimony, although inconsistent, as to how much time elapsed between the occurrence of the broken pipe and plaintiff’s injury. Potter testified that the pipe had been broken for one month before plaintiff’s injury and that the district manager was aware of it. However, Ullman stated that the pipe had only been broken six days earlier and that both she and the cook had tried to remove it. Based on this evidence, the jury could have concluded that defendant was not negligent in failing to remove the pipe in the six days that elapsed from the time the pipe had been broken until plaintiff’s accident in light of the fact that two employees had tried to remove the pipe prior to the accident but had been unable to do so. The jury may also have determined that the pipe was only one inch high and not a hazard or was a hazard but was open and obvious rather than one that was hidden. Finally, the jury may have determined that plaintiff was more than 50% negligent. For these reasons, we conclude that, pursuant to the standard set forth in PedricJc, the trial court’s denial of plaintiff’s motions for a directed verdict and judgment n.o.v. was not error.

Plaintiff next contends that the trial court erred in refusing to instruct the jury that an adverse inference could be drawn because defendant had not presented the testimony of the district manager or produced inspection reports, both of which were material to the issues of the size and appearance of the pipe as well as its ease of removal. The -plaintiff requested Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1971) (IPI Civil 2d No. 5.01). This instruction is given if the trial court makes a determination that a party, in all likelihood, would have produced a witness or other evidence unless that witness or evidence was unfavorable to that party. (Myre v. Kroger Co. (1988), 176 Ill. App. 3d 160, 165, 530 N.E.2d 1122.) “The instruction allows a jury to draw an adverse inference from a party’s failure to offer evidence or to produce a witness when: (1) the evidence or witness is under his control and could have been produced through reasonable diligence; (2) the other party did not have equal opportunity to obtain the evidence or witness; (3) the evidence or witness would have been produced if it were favorable; and (4) the party has offered no reasonable excuse for his failure to produce.” (Myre, 176 Ill. App. 3d at 165.) Whether this instruction is given is within the discretion of the trial court, and its decision will not be reversed absent a showing of an abuse of discretion. Myre, 176 Ill. App. 3d at 165.

Contrary to the plaintiff’s argument that the instruction was warranted, Ullman testified that defendant no longer had control over the district manager because he had not been employed by defendant for several years prior to the trial. Furthermore, in response to plaintiff’s request, defendant had produced the last known address of Walter in July 1985. Defendant was also able to offer a reasonable excuse for its failure to produce the inspection reports. At the trial, Ullman testified that, according to company policy, the inspection reports were only retained for two years. Thus, any reports that were produced in 1981 would have been destroyed in the normal course of business before this suit was filed. There is nothing in the record to show that the reports at issue were treated any differently than all of the other inspection reports. We, therefore, conclude that the trial court’s refusal to issue IPI Civil 2d 5.01 was not an abuse of discretion.

Plaintiff’s final contention is that it was error to apply Wisconsin substantive law to this case because defendant, in a prior action, initially objected to Federal diversity jurisdiction, asserting that it was an Illinois resident, and it should not now be allowed to obtain the advantage from its inconsistent claim that it is a Wisconsin resident. Plaintiff cites Schumacher v. Continental Air Transport Co. (1990), 204 Ill. App. 3d 432, 562 N.E.2d 300, for the proposition that “[a] party whose conduct contributes to or causes another to commit an irregularity in a judicial procedure cannot later use the irregularity to his advantage.” (Schumacher, 204 Ill. App. 3d at 434.) Although plaintiff argues that defendant caused an irregularity in the judicial procedure by moving to dismiss the case from the Federal court, the only document in the record which provides information as to what transpired in Federal court is an order providing that after an additional defendant had been dismissed, there was no diversity jurisdiction, “all remaining parties being Illinois residents.” The pleading also contains two separate statements by the Federal judge that plaintiff did not contest the lack of jurisdiction. There is no indication from the record as to who caused the dismissal of the suit from the Federal court. Thus, plaintiff’s argument that defendant caused an irregularity is only based on his own assertion.

While plaintiff raises the doctrine of collateral estoppel in his reply brief, it was neither asserted below nor mentioned in appellant’s initial brief on review. As a result, the argument is waived. (See 134 Ill. 2d R. 341(e)(7); In re Estate of Fallscher (1987), 159 Ill. App. 3d 302, 512 N.E.2d 387.) Further, pursuant to our prior discussion, the record does not disclose that defendant ever took an inconsistent position regarding its domicile. Plaintiff’s sole submission of authority on this issue, Raper v. Hazelett & Erdal, not only fails to lend any support to his argument, but it defeats his position by reiterating the well-established principle that the doctrine of collateral estoppel only applies to a judgment on the merits. (Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, 652, 449 N.E.2d 268.) In addition, the fact that plaintiff did not object to the determination of no diversity jurisdiction also indicates that the plaintiff himself may have contributed to the dismissal of the suit from the Federal court. Because plaintiff is unable to preclude defendant from asserting Wisconsin as its corporate domicile in this court, what remains is a pure choice of law question.

Under Illinois choice of law principles, the law of the State where the injury occurred determines the rights and liabilities of the parties unless Hlinois has a more significant relationship with the occurrence and with the parties, in which case, Illinois law would be applicable. (Rosett v. Schatzman (1987), 157 Ill. App. 3d 939, 943, 510 N.E.2d 968, citing Ingersoll v. Klein (1970), 46 Ill. 2d 42, 262 N.E.2d 593.) The factors considered in determining which of the two States has the most significant relationship with the occurrence and the parties are: (1) the place of injury; (2) the place of conduct causing the injury; (3) domicile and place of business of the parties; and (4) the place where the parties’ relationship is centered. Rosett, 157 Ill. App. 3d at 943, citing Jackson v. Miller-Davis Co. (1976), 44 Ill. App. 3d 611, 358 N.E.2d 328.

In applying these principles to the facts of this case, the injury and the conduct causing the injury occurred in Wisconsin. Wisconsin was also the principal place of defendant’s business as well as the center of the parties’ relationship. The domicile of the plaintiff was Illinois, and while the Federal court made a finding that defendant was an Hlinois resident, we find no basis in the record for this determination. Although the defendant’s domicile was never established, the trial court, in a proper exercise of discretion, considered all of these factors and determined that Wisconsin had a more significant relationship to both the occurrence and the parties. We agree.

Although plaintiff cites Ingersoll (46 Ill. 2d 42, 262 N.E.2d 593) and Blazer v. Barrett (1973), 10 Ill. App. 3d 837, 295 N.E.2d 89, in support of his argument that Hlinois law should be applied, neither case supports his argument. While Ingersoll and Blazer affirmed the trial court’s determination that Hlinois law should be applied, both courts’ rulings were based on the four-part “significant relationship” test. In this case, the same factors were applied with different results. In Ingersoll and Blazer both parties were Illinois residents, and the occurrence of the accident just beyond the border of Illinois was fortuitous. In this case, the domicile of defendant was not established. Furthermore, not only was there no evidence in the record on appeal for the Federal court’s determination that defendant was domiciled in Illinois, but the plaintiff alleged in his circuit court complaint that defendant was a foreign corporation, “organized and existing under the laws of Wisconsin.” In addition, the occurrence of the injury in this case was not fortuitous but occurred in a restaurant which was owned and operated in Wisconsin.

For the aforementioned reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF MARCY D. NORRIS, Petitioner-Appellee, and JOHN E. NORRIS, Respondent-Appellant.
    First District (4th Division)
    Nos. 1—90—0988, 1—90—2048 cons.
    Opinion filed December 23, 1992.
    Rehearing denied February 24, 1993.

      Robert E. Senechalle, Jr., of Senechalle & Murray, of Chicago, for appellant.
    John W. Damisch and David P. Pasulka, both of Barclay & Damisch, Ltd., of Chicago, for appellee.

      Justice McMorrow participated in the disposition of this case prior to becoming a member of the supreme court of Illinois. Justice Linn participated in the disposition of this case prior to his retirement.

   JUSTICE JOHNSON

delivered the opinion of the court;

Respondent, John Norris, appeals from an order of the circuit court of Cook County dissolving his marriage with petitioner, Marcy Norris, who cross-appeals. The issues for review are whether the trial court (1) erred in denying respondent’s motion to quash service of summons for lack of personal jurisdiction; (2) erred in finding that there was subject matter jurisdiction; (3) abused its discretion in disposing of the marital assets and debts; (4) abused its discretion in finding that respondent did not dissipate marital assets from 1980 through 1983; (5) abused its discretion in awarding maintenance to petitioner; (6) erred in awarding prospective attorney fees to petitioner; and (7) erred by not awarding petitioner the entire amount of attorney fees requested.

We affirm.

Petitioner and respondent were married on May 22, 1980, in Salida, Colorado. No children were bom or adopted during the marriage. The parties permanently separated in 1985.

On December 30, 1986, petitioner filed for dissolution of marriage in the circuit court of Cook County. In her petition, she alleged that respondent lived on leased property in Lemont, Illinois. The lease was to run through April 1987. Respondent was served with summons in Purcell, Oklahoma, on January 22, 1987. At the time this proceeding was filed, and at the time of trial, petitioner was a resident of Phoenix, Arizona.

On November 12, 1987, respondent filed a special and limited appearance and a motion to quash the service of summons. Respondent alleged that he was not a resident of Illinois when the suit was filed or when he was served with summons. He further alleged that he was not subject to the jurisdiction of the Illinois courts under State law. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 209.

In support of his motion to quash, respondent filed an affidavit and exhibits which established that respondent had vacated the leased property in Lemont, Illinois, in October 1986. The affidavit further alleged that respondent was a resident of Purcell, Oklahoma, when petitioner filed her petition for dissolution of marriage.

In response, petitioner argued that respondent had many ties with Illinois. She argued that respondent was the recipient of trust income held at a Chicago bank. Respondent also filed his tax returns from Illinois and, on them, claimed to be an Illinois resident. Further, respondent listed his residence as his Illinois attorney’s office for purposes of a tax court case in 1988. Since 1987, respondent has maintained an ongoing relationship with his Cook County attorneys, and since 1980, he has retained the same Naperville, Illinois, accounting firm.

The trial court found that it had both personal and subject matter jurisdiction. In June 1989, the case proceeded to trial.

Respondent failed to appear at the trial, or for any of the other proceedings, despite having received Supreme Court Rule 137 notices. He offered no testimony to rebut any of petitioner’s allegations including those related to the parties’ financial status.

While married, the parties reported earnings of $200,000 and $250,000 on their joint income tax returns. Petitioner testified that respondent is an heir to the estate of Bet-a-Million Gates, the inventor of barbed wire. She stated that as a beneficiary of several trust funds, respondent receives more than $200,000 per year and an additional $500,000 every five years. She further stated that respondent was engaged in the business of training horses.

The only item of marital property was a ranch in Arizona, where respondent has resided since 1983. The ranch was purchased in 1984 for $209,000. Prior to acquiring the ranch, petitioner resided on the property under a lease with an option to purchase. There was a cash down payment on the property in the amount of $44,000. Petitioner testified that she paid $9,000 on the property from money she borrowed from a bank. The remaining $35,000 was paid by respondent. Petitioner stated that the amount necessary to prevent foreclosure, including interest, penalties, late fees and attorney fees was $175,000. The actual mortgage balance was in the lower $160,000’s. Petitioner further stated that the property was foreclosed upon after respondent failed to comply -with the trial court’s order to bring the mortgage current.

Petitioner testified that respondent had spent millions of dollars on drugs, alcohol, women and poor business decisions during the marriage. For example, she testified that respondent spent $70,000 for a horse that he gave to a lady friend. He later bought another horse for $140,000, which he lost. Petitioner also testified that respondent invested in a horse syndicate for $600,000, which was lost. He also paid $130,000 for a diamond ring and $45,000 for three Rolex watches, all of which were either lost or stolen. Petitioner further testified that she had debts of $58,000 which included $13,000 in arrearage on the ranch mortgage. She stated that her electric bill alone exceeded $2,000. Petitioner also stated that she was in good health and that she was taking care of boarding horses and doing “ranch hand type of work.”

The court ordered respondent to quitclaim his interest in the ranch to petitioner. The court also made respondent responsible for the mortgage payments, assessments and taxes until the property was paid for in full. After petitioner testified that the ranch had been lost to foreclosure, the trial court ordered respondent to take the necessary steps to redeem the property and pay all arrearages on the mortgage. Further, the court ordered respondent to pay petitioner $5,000 per month in maintenance for a period of three years.

On appeal, respondent contends that the trial court erred in finding that he was subject to personal jurisdiction pursuant to the Illinois statute. (111. Rev. Stat. 1985, ch. 110, par. 2 — 209(aX5).) Respondent further contends that the trial court erred in finding that it had subject matter jurisdiction over this action.

During oral arguments before this appellate court, respondent’s attorney admitted that respondent had remarried. Notwithstanding this admission, respondent requested that the trial court’s order be vacated and that this case be dismissed. In the alternative, respondent requests that the service of summons on him be quashed and that all portions of the judgment for dissolution of marriage be vacated, except the portion of the order which dissolves the marriage.

“A person who remarries in reliance on the validity of a prior divorce decree has accepted the benefit of that decree and is estopped from challenging its validity.” (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 634.) “This estoppel principle applies even when the divorce decree is attacked as being void for lack of subject matter jurisdiction.” (Passiales, 144 Ill. App. 3d at 634.) The purpose of this rule was stated in McDonald v. Neale (1962), 35 Ill. App. 2d 140, as follows:

“The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights as petitioner has here attempted.” McDonald, 35 Ill. App. 2d at 151.

Under the circumstances presented in this case, we believe that respondent should be estopped from challenging the validity of the trial court’s order. Here, respondent has requested this court to vacate the trial court’s order and dismiss this case. At the same time, however, respondent has accepted the benefit of the trial court’s order by marrying another person. Respondent’s actions fly in the face of the public policy interests enunciated in McDonald and violate a basic principle that an individual should not be permitted to assert inconsistent legal rights. We therefore find that respondent is estopped from challenging his divorce decree on the grounds of lack of subject matter and personal jurisdiction.

Turning to the merits of the dissolution order, respondent contends that the trial court abused its discretion in awarding petitioner the Arizona ranch and ordering respondent to pay all debts associated with the property.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (111. Rev. Stat. 1985, ch. 40, par. 503) governs the disposition of property in a dissolution of marriage action. The court in In re Marriage of Madoch (1991), 212 Ill. App. 3d 1007, stated as follows:

“Under section 503(d), a court may consider the following factors when apportioning property: each spouse’s contribution to or dissipation of the marital property; the value of the property set apart to each spouse; the duration of the marriage; the relative economic circumstances of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; the opportunity of each spouse for acquisition of capital assets and income; and the tax consequences of the property division upon the respective economic circumstances of the parties.” Madoch, 212 Ill. App. 3d at 1015-16.

The distribution of marital property rests within the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. (In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 673.) Further, “[a]n abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court.” Madoch, 212 Ill. App. 3d at 1015.

The trial court found that petitioner spent seven years working on and preserving the parties’ only asset, while respondent had squandered millions of dollars on drugs, alcohol, women and poor business decisions. The court further found that respondent was the beneficiary of trust funds which paid him in excess of $200,000 per year and an additional $500,000 every five years. Petitioner was 40 years old at the time of trial. Her only marketable skill was working as a ranch hand. In light of the unrebutted facts set forth in the record, and the factors in section 503(d) of the Act, we cannot conclude that the trial court abused its discretion in awarding petitioner the Arizona ranch.

Petitioner cross-appeals, contending that the trial court erred in finding that respondent did not dissipate marital assets during the years 1980 to 1983. Dissipation is the use of marital property for one spouse’s sole benefit or for a purpose unrelated to the marriage at a time when it is undergoing an irreconcilable breakdown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549.) Whether a spouse’s conduct constitutes dissipation depends upon the facts of each case, and the trial court’s finding on this issue will not be reversed unless it is against the manifest weight of the evidence. In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565.

Petitioner further argues that although money respondent received from his trust funds during this time began as nonmarital property, the assets were transmuted to marital property after they were deposited into the parties’ joint bank account. “Assets purchased with separate funds remain separate property regardless of the number or type of postmarital exchanges as long as there has been no evidence of an intent to transmute.” In re Marriage of Siddens (1992), 225 Ill. App. 3d 496, 499.

The trial court stated that the testimony showed that respondent “intended to continue to receive his inheritance and to use it in a manner that he had used it prior to the marriage, and that is basically for his benefit.” The trial court found that respondent’s assets had not been transmuted to marital property and that an irreconcilable breakdown of the marriage had not occurred until 1985. Petitioner testified that in 1982 she moved to Mexico to live with respondent. She further testified that respondent had visited her in 1983, 1984 and 1985. During this time, petitioner testified, the parties talked about “ending up together.” Further, in 1984, respondent paid $35,000 to purchase the Arizona ranch and agreed to have the property placed in joint tenancy. Based on this evidence, a finding by the trial court that the marriage was not undergoing an irreconcilable breakdown in 1980 through 1983 is not against the manifest weight of the evidence. We therefore find that the trial court did not abuse its discretion in finding that respondent did not transmute nonmarital property to marital property or dissipate marital assets during the years 1980 through 1983.

Respondent also contends that the award of maintenance to petitioner of $5,000 per month for three years was an abuse of discretion. The court in In re Marriage of Madoch (1991), 212 Ill. App. 3d 1007, stated as follows:

“Section 504(a) of the Act provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. [Citation.] Maintenance is to be awarded in such amounts and for such periods of time as the court deems just, after consideration of various factors, including the following: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the age and the physical and emotional condition of both parties; and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.” (Madoch, 212 Ill. App. 3d at 1016-17.)

Further, a maintenance award will not he reversed unless it is an abuse of discretion or the award is against the manifest weight of the evidence. In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 227.

In this case, we do not believe that the monthly maintenance awarded by the court was an abuse of discretion. Respondent argues that petitioner does not need maintenance because her expenses of $2,540 only exceed her income by $40. Although respondent testified that she had a $40 shortfall, this testimony was only in relation to the income and expenses generated by the ranch business, not her personal living expenses. Petitioner’s affidavit showed that her personal expenses exceeded her income by $5,167 per month. Respondent did not cross-examine petitioner on her affidavit nor did he file a brief on this issue as requested by the trial court. Petitioner testified that with the additional capital she would be able to expand the ranch business and generate long-term income. She also testified that respondent had agreed with this proposition and offered to help finance the project, but reneged on his agreement. Petitioner also testified that she could earn approximately $150 per week and possibly living accommodations elsewhere, if the ranch business folded. In light of the circumstances presented in this case, we find that the trial court did not abuse its discretion in awarding maintenance to petitioner.

Respondent also contends that the trial court erred in awarding prospective attorney fees to respondent.

Section 508(a) of the Act provides that prospective attorney fees may be awarded in a dissolution proceeding. (111. Rev. Stat. 1985, ch. 40, par. 508(a).) However, “prospective awards should be made cautiously and are to be based upon some viable evidentiary basis.” (In re Marriage of Pittman (1991), 213 Ill. App. 3d 60, 63.) The party seeking an award for prospective attorney fees must show that he or she cannot afford to pay and that the other spouse can afford to do so. (Pittman, 213 Ill. App. 3d at 63.) Lastly, prospective awards “rest in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Pittman, 213 Ill. App. 3d at 63.

In the case at bar, petitioner asked the trial court for a specific amount of fees and presented evidence concerning the cost to defend this appeal. Petitioner’s attorney testified about his experience and how these factors led him to the figure requested. Based on the testimony presented at trial, we find that the trial court did not abuse its discretion in awarding petitioner a prospective award for attorney fees.

Lastly, we consider whether the trial court erred by not awarding petitioner the entire amount of attorney fees requested. The trial court ordered that petitioner’s attorney be paid $9,000 despite his fee petition requesting $17,810.

The hearing on petitioner’s request for attorney fees lasted two days, as long as the trial itself. The court reviewed exhibits and heard arguments. Although the case had been pending for three years, the court noted that little discovery had been conducted by petitioner’s attorney. The court found that petitioner’s attorney was “evasive to say the least” in his testimony at the fee hearing. It is apparent from the record that the trial court reviewed the material submitted by petitioner’s attorney and was in the best position to determine the reasonableness of a fee award. We therefore find that the trial court did not abuse its discretion in not awarding petitioner the entire amount of attorney fees requested.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

McMORROW and LINN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LASH, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—2920
    Opinion filed February 22, 1993.

      Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Ann L. Benedek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant Anthony Lash was convicted of the July 1989 shooting murder of James Towns (111. Rev. Stat. 1989, ch. 38, par. 9 — 1) and sentenced to 34 years’ imprisonment. Defendant raises the following errors on appeal: (1) the circuit court erroneously denied his pretrial motion to suppress; (2) the court improperly allowed the State to inform the jury on multiple occasions that defendant had been arrested previously on another matter; (3) the court improperly admitted certain testimony demonstrating how the police were led to defendant as the assailant; (4) the court erred in admitting testimony from an assistant State’s Attorney that “improper” confessions are suppressed at criminal trials where such testimony suggested that defendant’s confession was proper in this case since it was admitted at trial; and (5) multiple instances of prosecutorial comment during closing argument denied him a fair trial. We affirm.

Defendant’s guilt in this case was largely established through his own oral confession, although he denied making it, and the eyewitness testimony of Eugene Hammond, a neighbor of the deceased.

Defendant, age 16, stated in his confession that the victim, Towns, owed him $60 for some cocaine. At about 10:15 p.m. on July 2, 1989, he was parked in a brown station wagon with other individuals waiting for Towns to come out of his house. Defendant had taken two trips past Towns’ house and noticed that his car windows were open. Defendant knew that Towns would be out to roll up the windows because it was an unsafe neighborhood. When Towns came out, defendant alighted from the station wagon with a gun and walked towards Towns. When defendant got within five to six feet of Towns, Towns turned, faced defendant and began pleading for help. Defendant then fired four shots at Towns, who fell to the ground. Defendant ran away and returned to the waiting station wagon. He and the other persons then drove by the victim and to defendant’s house. Defendant went into his house and hid the gun. Defendant later gave the gun to another individual, who sold it to yet another. The police were later able to obtain the gun, which the State introduced into evidence.

Hammond testified for the State that he lived four houses away from Towns on the same side of the street. At about 10 p.m. on July 2, 1989, he was in his front yard talking with a friend. As they talked, Hammond noticed a brown station wagon with approximately four people in it. It was the same car he had seen drive by earlier that same day. At about this time, Towns came out of his house, went to his car and rolled up its windows.

The station wagon stopped and defendant exited. Defendant then walked along the sidewalk in front of Hammond’s yard, coming as close as 10 to 15 feet at one point. The streetlights were on, and Hammond saw defendant’s face when he looked at Hammond and his friend. Towns was leaning against his car when he turned and saw defendant approaching. Towns began yelling for help, and defendant shot Towns from a close distance. Towns fell to the ground, and defendant ran away. About four minutes later, Hammond saw the same brown station wagon drive by the murder scene.

Hammond identified a photograph of defendant in court, which the police had shown him in August 1989. In September 1989, Hammond viewed a lineup at a police station. Hammond identified in court a photograph of the lineup and identified defendant in that picture.

Defendant denied at trial all involvement with Towns’ murder and claimed the police fabricated his confession.

Defendant first contends on appeal that his confession was involuntary and should have been suppressed. We disagree.

The constitutional privilege against self-incrimination is applicable to juveniles (In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428), and the State bears the burden of demonstrating that a confession was voluntarily made. (People v. Holcomb (1989), 192 Ill. App. 3d 158, 170, 548 N.E.2d 613; People v. Reed (1984), 123 Ill. App. 3d 52, 59, 462 N.E.2d 512.) The trial court need be convinced only by a preponderance of the evidence that the statement was voluntary (Holcomb, 192 Ill. App. 3d at 170; Reed, 123 Ill. App. 3d at 59), and it is the province of the trial judge to resolve any conflicts in the evidence and to determine the credibility of the witnesses. (People v. Bobe (1992), 227 Ill. App. 3d 681, 705, 592 N.E.2d 301, appeal denied (1992), 146 Ill. 2d 634, 602 N.E.2d 459; People v. Brown (1989), 182 Ill. App. 3d 1046, 1051, 538 N.E.2d 909.) An appellate court’s review of the voluntariness question is limited to whether the trial court’s finding is against the manifest weight of the evidence. Holcomb, 192 Ill. App. 3d at 170; Reed, 123 Ill. App. 3d at 59.

Assessing the voluntariness of a juvenile’s confession requires great care. (People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910, appeal denied (1989), 127 Ill. 2d 630, 545 N.E.2d 122.) However, statements made by juveniles are generally subjected to the same test as adult defendants. (People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371, cert. denied (1977), 434 U.S. 930, 54 L. Ed. 2d 291, 98 S. Ct. 418.) The test is whether the statement was made freely, without compulsion or inducement of any sort, or whether defendant’s will was overcome when he made the statement. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) A court is to look to the totality of the relevant circumstances surrounding the making of the statement (Prude, 66 Ill. 2d at 475; Prim, 53 Ill. 2d at 70), which include: the existence of any promises, threats or physical coercions; whether the accused received his constitutional rights; the duration of the questioning; and the age, education and intelligence of the defendant. People v. Martin (1984), 102 Ill. 2d 412, 427, 466 N.E.2d 228, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334.

In this case, Detective Kill of the Chicago police department testified for the State that on September 14, 1989, he was investigating the July 2, 1989, homicide of Towns. Kill arranged for defendant to be questioned regarding the murder. Defendant was residing on this date at the Audy Home, where he was being held as a suspect in an unrelated attempted murder. Kill was the detective on that case, too.

Prior to the interview, Kill attempted to contact defendant’s parents. In a prior interrogation of defendant on July 19 regarding the attempted murder charge, defendant’s stepfather was present during the interview. Kill knew that the stepfather worked until mid-afternoon as did defendant’s mother. Kill did not have the stepfather’s or mother’s work number. Kill also knew that defendant was represented by counsel in the attempted murder case.

At 11 a.m., Kill interviewed defendant at Area 3 headquarters in an interview room. Kill reintroduced himself, and introduced youth officer Balcitis and Detective Fred McKinley. All three were present during the interview. Kill gave defendant his Miranda warnings from a FOP handbook, and defendant indicated he understood each right. The rights given to defendant were the same ones which defendant received during a July 19 interview, when Kill interviewed defendant on the attempted murder charge.

Kill informed defendant that the nature of the offense allowed him to be charged as an adult. Defendant understood this and indicated that he wished to speak about the Towns murder. Defendant thereafter made the oral statement which was subsequently introduced at trial.

Kill testified that at no time did defendant ask to see a lawyer or that his parents be contacted. Defendant was never subjected to threats, coercion or intimidation at any time. The interview lasted 20 minutes. No attorney was present during the interview. Youth Officer Balcitis was only alone with defendant after he made his statement.

Detective McKinley of the Chicago police department, Area 3 violent crimes, testified for the State that on September 14, 1989, at about 9 a.m., he retrieved defendant from the Audy Home. McKinley did not ask any of the home’s officials to accompany him to Area 3 or seek to interview defendant at the home. Defendant did not ask that his parents be contacted, and they were not contacted to McKinley’s knowledge. McKinley knew that defendant was being represented by legal counsel regarding the attempted murder charge.

McKinley transported defendant in handcuffs alone from the Audy Home to Area 3 headquarters. A lineup was conducted when defendant arrived; Detectives Kill and McKinley and youth officer Balcitis were present for the lineup. Following the lineup, defendant was interviewed. The remainder of McKinley’s testimony is substantially corroborative of Kill’s testimony.

Chicago police officer Sharon Balcitis of the youth division testified for the State that she too participated in the lineup and interview at Area 3 headquarters on September 14, 1989. Although she was present to protect defendant and safeguard his interest, at no time did she speak with him prior to the interview.

Detective Kill introduced Balcitis to defendant as “the Youth Officer there on his behalf.” Kill gave defendant his Miranda warnings from Kill’s FOP book. Defendant indicated he understood those rights and that he wished to make a statement. Balcitis did not explain to defendant what those rights meant. Defendant at no time indicated that he wished to have an attorney present or that he wanted his parents contacted. Defendant at no time received threats, coercion or intimidation from anyone. Balcitis was alone with defendant following the interview, but they did not speak. Balcitis’ participation in the interview consisted only of observing defendant and the detectives.

Defendant testified at the suppression hearing that he resided at the Audy Home in September 1989 because of a pending attempted murder charge. A public defender represented him on that charge.

On September 14, 1989, he was summoned from his room to go to the interview. Detective McKinley handcuffed and escorted him to Area 3 headquarters for an interview. There were interview rooms at the Audy Home. Defendant asked McKinley if he could call his parents or a lawyer. McKinley replied that he could.

In the interview room, four or five officers were present. One of the officers started “asking me questions in force as if putting words in my mouth.” Defendant explained that the officers were telling him what happened. Neither defendant’s mother, father, nor lawyer ever appeared during the interview. Defendant was very frightened during the interview because he thought he would be beaten. Defendant never signed a statement and denied making any statement to the police whatsoever.

Defendant had been to Area 3 headquarters before and had been interviewed by Kill regarding the attempted murder charge. Defendant never received his Miranda warnings before the September interview although at trial he later testified he did. Defendant also testified at trial that Detective Kill pushed his head against the wall during the interview.

Following the evidence, the court found that defendant at no time requested an attorney; defendant received his rights; defendant was not physically abused; defendant had prior experience with custodial interrogations; and the interrogation lasted about a half hour. The court for these reasons found defendant’s statement to be voluntary and, accordingly, denied his motion to suppress.

On appeal, defendant urges that Detective Kill arranged the timing of the interview so that it would occur while his parents worked. Also, while youth officer Balcitis was present during the interview, her presence was illusory, because she did nothing to protect his interests. Further, both Kill and McKinley knew that defendant had counsel for the attempted murder charge but conducted the interview anyway without even contacting his attorney. Defendant asserts that the above conduct evinces a police intent to minimize, not maximize, the protections afforded a minor under the Juvenile Court Act of 1987 (the Act) (see Ill. Rev. Stat. 1989, ch. 37, pars. 805 — 5, 805 — 6) (outlining duties of police upon taking minor into custody without warrant). Defendant asserts that if the Act is to have any meaning, his confession should be suppressed.

We believe defendant is misplaced in asserting the premise that an incriminating statement must be suppressed when taken in violation of the Act. No sanctions for alleged police violations of sections 5 — 5 and 5 — 6 exist in the Act, and our cases have held that such violations do not make an incriminating statement per se inadmissible. Again, the test is the totality of the circumstances, with alleged violations of the Act being only material factors to consider in assessing the overall voluntariness of the confession. (See People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642; People v. Zepeda (1970), 47 Ill. 2d 23, 265 N.E.2d 647; People v. Brown (1992), 235 Ill. App. 3d 479, 601 N.E.2d 1190; People v. Bobe (1992), 227 Ill. App. 3d 681, 592 N.E.2d 301; People v. Earnest (1991), 224 Ill. App. 3d 90, 586 N.E.2d 449, appeal denied (1992), 144 Ill. 2d 637, 591 N.E.2d 25; In re J.S. (1984), 121 Ill. App. 3d 927, 460 N.E.2d 412; In re Stiff (1975), 32 Ill. App. 3d 971, 336 N.E.2d 619.) Of course, police run the risk of having a statement suppressed when violations of the Act occur. (See People v. R.B. (1992), 232 Ill. App. 3d 583, 597 N.E.2d 879; In re J.O. (1992), 231 Ill. App. 3d 853, 596 N.E.2d 1285; People v. Brown (1989), 182 Ill. App. 3d 1046, 538 N.E.2d 909; People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910, appeal denied (1989), 127 Ill. 2d 630, 545 N.E.2d 122; People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33, appeal denied (1987), 116 Ill. 2d 570, 515 N.E.2d 120; People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654.) As we have noted, these violations may make the difference in a close case. (In re Stiff (1975), 32 Ill. App. 3d 971, 978, 336 N.E.2d 619.) Thus, notwithstanding the absence of sanctions within the Act, the judicial sanction of suppression may nevertheless be imposed in the proper case.

Here, while the officers’ testimony conflicted with defendant’s, the manifest weight of the evidence supports the trial court’s conclusion that defendant’s oral confession was voluntary. Due to his past exposures to criminal proceedings, defendant was familiar with Detective Kill and interview procedures. A youth officer was present during the interview. No testimony existed that defendant was physically abused in any manner, save for defendant’s own at trial, which is inconsistent with his testimony at the suppression hearing. Defendant received his rights and acknowledged understanding them. Defendant learned that he could be charged as an adult. The interview was short. Considering the evidence as a whole, the manifest weight of the evidence clearly supports the court’s ruling that defendant’s confession was voluntary under the totality of the circumstances, notwithstanding the State’s alleged noncompliance with the Act. We accordingly affirm the circuit court’s ruling.

Defendant next contends on appeal that the admission of “mug shot” evidence denied him a fair trial. Prior to trial, defendant filed a successful motion in limine precluding the State from referring to his prior juvenile delinquency adjudications or his open charge of attempted murder. Defendant also moved that the jury not be allowed to see the array of photographs from which Eugene Hammond identified defendant. The court ruled that the jury would be allowed to see them only if they were requested.

During trial, Detective Kill was asked about the police investigation of the Towns murder. During the investigation, Kill utilized a series of five photographs to show witnesses for purposes of identifying the perpetrator. In response to the State’s question, “What did those pictures show?” Kill stated: “mug shots, identification photographs taken by the Chicago Police Department of persons previously arrested.” Defendant’s objection to this comment was sustained and the jury was instructed to disregard it.

Later, during deliberations, the jury requested to see these photographs, and the court allowed them into the jury room. The record shows these photographs to depict front and side views of defendant and four others with placards across their chests. Defendant’s placard bears the following: “2 CHGO PD YD 212051 25 Jan 88.” The others’ placards bear similar characters.

We agree initially -with defendant that Kill improperly interjected other crimes evidence into trial when he testified that the photographs shown to eyewitnesses were “mug shots” of “persons previously arrested.” The trial court had ruled that “other crimes” evidence would not be permitted and that the “mug shots” themselves would not be exhibited to the jury unless they were specifically requested. The State's question specifically sought to elicit the response Kill in fact gave and, thus, the State violated the court’s prior ruling as well as known principles of evidence. Kill’s testimony, however, is moot if we can determine that the admission of the five mug shots was not error or, if so, not prejudicial error. The same can be said for defendant’s similar, “other crimes” allegation of error, that Kail erroneously testified at trial that defendant “knew him.”

Where identification is a material issue at trial, testimony relating to the use of mug shots in an investigation may be introduced to show how a defendant was initially linked to the commission of an offense. (People v. Arman (1989), 131 Ill. 2d 115, 123, 545 N.E.2d 658, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 499, 110 S. Ct. 1324.) The admissibility of such evidence is not without limits, however. Mug shot evidence tending to inform the jury of a defendant’s commission of other, unrelated criminal acts should not be admitted. (Arman, 131 Ill. 2d at 123.) Even where, however, the trial court erroneously admits mug shot evidence suggesting the defendant’s involvement in unrelated offenses, reversal is not automatically warranted. (Arman, 131 Ill. 2d at 124.) When the competent evidence in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be concluded that a retrial without the erroneous admission of the challenged evidence would produce no different result, the conviction may be affirmed. Arman, 131 Ill. 2d at 124.

In this case, the jury received the mug shots only after it had specifically requested them. Identification was a contested issue, with defendant attacking the State’s case by arguing that he did not do it, that he had been wrongly identified and that his confession was fabricated. Admission of defendant’s mug shot, therefore, was clearly relevant to prove a material issue, although it also revealed defendant’s prior involvement with the law. However, because any prejudice resulting from the photographs’ admission was outweighed by their probative value for identification purposes, any error in admitting the mug shot was harmless beyond a reasonable doubt. (Accord People v. Wheeler (1979), 71 Ill. App. 3d 91, 97-98, 388 N.E.2d 1284; see also People v. Arman (1988), 171 Ill. App. 3d 232, 242, 524 N.E.2d 1195 (Freeman, J., dissenting).) As our supreme court has stated:

“[W]e especially note that defendant’s allegation of prejudice is somewhat speculative. To hold that this error is reversible would require us to presume that the jury recognized the arrest date for what it was, realized that arrest date preceded the date of the offenses with which defendant was charged, and then adjudicated defendant’s guilt on the basis of this prior arrest rather than the evidence produced at trial. We do not believe that justice requires that this course be taken.” (People v. Warmack (1980), 83 Ill. 2d 112, 129, 413 N.E.2d 1254.)

Defendant’s argument is accordingly rejected.

Defendant’s third allegation involves the testimony of Assistant State’s Attorney John Muldoon. Muldoon testified for the State that he was an assistant State’s Attorney serving as a supervisor in the felony review unit in September 1989. On September 14, 1989, Assistant State’s Attorney Nancy Donahoe was assigned to defendant’s case. Donahoe was instructed that she was to have no contact with defendant because he “was being represented in a different matter.” Donahoe was so instructed because the state of the law regarding the interrelation between a defendant’s fifth and sixth amendment rights was unclear at the time of defendant’s interview.

On cross-examination, defense counsel asked Muldoon whether the reason why Donahoe could not speak with defendant also applied to Detective Kill as well. Muldoon responded affirmatively. During the redirect which followed, Muldoon agreed with the State’s assertion that “improper” statements are not allowed into evidence at trial. Later, during closing argument, the State referred the jury to this testimony, stating: “You also know, ladies and gentlemen, that if confessions are improper, they’re not put in front of a jury.” Defendant’s objection was sustained and the jury was instructed to disregard the comment.

On appeal, defendant admits that his cross-examination of Detective Kill “opened the door” to the State calling and questioning Muldoon. In that cross-examination, defense counsel attempted to convey to the jury through questioning the idea that defendant gave no confession whatsoever because his oral statement was never reduced to writing as in the usual criminal case. Nevertheless, defendant contends that the court erred by not limiting Muldoon’s testimony to informing the jury only that a “policy decision of the Office” motivated the State from taking a written statement. Defendant asserts that Muldoon’s testimony gave the jury yet another opportunity to hear that defendant had been previously arrested. Defendant asserts further error with respect to the State’s redirect, which defendant claims gave an official stamp of approval to his admitted confession since, as Muldoon testified, only “proper” confessions are heard by the jury.

We reject defendant’s allegations of error. A defendant may not interject an issue into his case and then contend that the bringing of it to the attention of the jury was erroneous. (People v. George (1971), 49 Ill. 2d 372, 378, 274 N.E.2d 26.) Muldoon’s testimony was unfortunate, but fault rests with defense counsel, not the State. It was counsel who questioned Detective Kill repeatedly about why defendant’s confession was not reduced to writing when, in the typical case, such usually occurs. Counsel’s questioning left the jury with the impression that the police had done something improper when, to the contrary, they were taking measures to assure that they did not violate defendant’s rights. As Muldoon indicated, at the time of defendant’s interview, a question existed as to whether a suspect could be questioned regarding one crime when he was being represented by counsel on another, pending criminal matter. The State limited Muldoon’s testimony in such a way that defense counsel’s innuendo of State impropriety was addressed without informing the jury what earlier crime defendant allegedly committed. Accordingly, we find that any prejudice defendant suffered from Muldoon’s “other crimes” testimony was self-inflicted. Further, given that the jury heard only that defendant was being represented in another matter, any prejudice suffered is too minimal to require reversal.

Relative to Muldoon’s redirect testimony, defendant again invited any prejudice he suffered. Defendant asked Muldoon whether Kill’s meeting with defendant was similarly improper. Muldoon believed it was, but since it had already occurred, there was nothing the State’s Attorney’s office could do. Defendant’s final question asked Muldoon whether Kill ever should have spoken with defendant. The State’s objection was sustained. On redirect, the State elicited the answer to which defendant now objects, namely, that confessions which are somehow improper are suppressed.

We believe that the principle of George stated above applies with equal force to Muldoon’s redirect testimony. Defendant invited it. Moreover, we do not believe that Muldoon’s testimony constituted a stamp of approval of defendant’s confession. The jury was subsequently instructed with Illinois Pattern Jury Instructions, Criminal, No. 3.06 — 3.07 (3d ed. 1992), which instructed the jurors that it was their role to determine whether defendant in fact gave a statement and what weight to give it based on the totality of the circumstances. Again, under the circumstances, any prejudice defendant incurred was invited by counsel’s tactics, which we will not second guess. Further, we believe that any such prejudice was minimal.

Defendant next contends that the State introduced impermissible hearsay testimony in showing the jury how he came to be arrested in this case. We disagree.

Kill testified that around July 29, 1989, Area 3 headquarters received a handwritten letter with two newspaper clippings dated the 5th and 20th of July. One of the clippings involved the Towns murder. Kill then contacted Mrs. Dawson at a public administration building. This conversation led Kill to Mrs. Gayles, with whom Kill also spoke. Neither Dawson nor Gayles testified at trial.

Near the end of August, Kill received a telephone call from an unidentified caller. Kill then proceeded to Joe Davenport’s home, about a block away from where Towns was killed. Davenport and Kill talked about a gun, but Kill did not obtain one. Kill then proceeded to Lorrell McCrary’s house, located in the same area as the Towns murder. Kill obtained from McCrary on August 29, 1989, a .38-caliber snub-nose revolver. Kill identified the gun in court.

Joseph Davenport testified that he was 18 years old and living within a short distance of where the murder occurred. Davenport knew Anthony Mitchell as well as defendant. In July 1989, Mitchell came by Davenport’s house and gave him a loaded revolver. Davenport refused the gun, and Mitchell left. About a month later, the police came by asking Davenport about a gun. Davenport gave the police the name of who might have the gun. Davenport made a tentative in-court identification of the gun which Mitchell showed him that day. In defendant’s oral confession, he stated that he gave the gun used to Mil Towns to Jesse Mitchell, who later sold it to McCrary. Neither Mitchell nor McCrary testified at trial.

A review of the above testimony shows that neither Kill nor any other witness disclosed the substance of their conversations. Rather, the witnesses testified only to events and the occurrence of conversations. The fact that a conversation occurred, as compared to what was said during the conversation, is not hearsay. As our supreme court recently reiterated:

“It is undisputed that an officer may testify to his investigatory procedures, including the existence of conversations, without violating the hearsay rule. This is true even if a logical inference may be drawn that the officer took subsequent steps as a result of the substance of that conversation.” People v. Jones (1992), 153 Ill. 2d 155, 159-60, citing People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146.

We conclude that the State’s relation to the jury of how defendant became a suspect and how the police came to find the gun used in the shooting was not hearsay. The cases defendant cites to support his position are all distinguishable as, in each of the cases cited, the content of the conversation was revealed. Again, such did not occur here.

Defendant finally contends that prosecutorial misconduct during closing argument denied him a fair trial. The first line of objectionable comments concerns the State’s various assertions that witnesses were afraid to testify. During the State’s initial close, the prosecutor stated, in reference to Eugene Hammond, that he was “the only person who was willing to come in here to testify to what he saw.”

The next such comment occurred during the State’s rebuttal. The State discussed generally that the evidence it presents in court turns in part on “the courage of individuals to come forward and tell what they saw and the fear of other people who don’t want to do that.” The State then referred the jury to the police officers on the scene who testified at trial that only a few people who witnessed the murder wanted to give their names.

The next similar comment occurred in response to defense argument that the persons whom the police contacted to obtain defendant’s name as the perpetrator did not come into court to testify. Again, the prosecutor referred the jury to the officers’ testimony that not everyone wanted to give his or her name. The State then commented: “I’m not suggesting at all that anybody else would identify him or is willing to identify him. I’m suggesting to you that we can’t get the whole story all the time because people are afraid, because people don’t want to become involved.”

The final alleged improper comment of this nature is based on the State’s argument that: “I wish we had more evidence to give you. I wish we had more eyewitness. That’s not in our control. Some of it is in his control, some of it is in the minds and the fears of the people on the street.”

Relying on People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, defendant contends the above comments were egregious error. In Mullen, the court stated that “[pjrosecutorial comments which suggest that witnesses were afraid to testify because defendant had threatened or intimidated them, when not based upon any evidence in the record *** are highly prejudicial and inflammatory.” (Mullen, 141 Ill. 2d at 405.) No evidence in Mullen existed that defendant in any way threatened or intimidated any witness. The comment in question in Mullen was that a witness feared testifying because he feared being shot in the back. The court held such comment to be plain error.

In this case, all but the prosecutor’s final comment were predicated on competent evidence. Chicago police officer Charles Banks testified at trial “there were other people [at the scene] that were giving their opinions of what had happened, but they didn’t want no part, they didn’t want, you know, to be identified.” Under Mullen, comments that individuals feared coming forward are proper where they are based on the evidence.

As for the final comment, we agree it was improper for the State to suggest that defendant had “some” control of who testified in this case. While testimony existed that defendant alighted from a station wagon containing several other individuals, no testimony existed that defendant controlled these individuals. We cannot say, however, that this comment requires defendant’s conviction to be reversed.

The next set of alleged improper comments involves the State’s comments that defendant was sent out by others to commit this crime. Defendant cites four such comments and claims as to each that no evidence existed to show that he acted on the behalf of others in committing the crime.

We find the comments to be proper or, if improper, harmless. The context of the argument was the State attempting to give reason to a senseless act. As noted, evidence existed that defendant did not act alone. Moreover, defendant’s youth supplies the valid argument that others possibly pressured him into killing. Finally, it is worth noting that the State never mentioned gang involvement whatsoever. The murder was drug related, and the State’s reference to the involvement of others relayed nothing more than the problems associated with society’s rampant drug problems.

The next comment to which we are directed is the rebuttal comment that “[t]hey can’t have it both ways, ladies and gentlemen. God gave us one mouth, sometimes we talk out of both sides of it.”

We find the comment proper. Defendant called Detective McKinley to establish that Eugene Hughes gave inconsistent height descriptions of the perpetrator. Defense counsel then attacked him in closing for playing a role in fabricating defendant’s oral confession.

We believe the State was entitled to argue that defendant cannot both attack and praise McKinley simultaneously. This was not a personal attack against either defendant or his counsel and, thus, defendant’s cases involving such personal attacks are distinguishable.

The final comments involved defendant’s claim that the State shifted the burden of proof. All occurred in the State’s rebuttal argument.

The first such comment pertains to the State characterizing defendant’s attack on Eugene Hammond as suggesting he was lying on the witness stand. The second comment was that if defendant was correct in asserting that he never confessed, the jury would have to believe that Detective McKinley was out to frame “an innocent kid for no reason.” The third and fourth comments concern the State’s attack of defendant’s theory of defense as unreasonable while claiming that its theory was more reasonable.

We find that the complained-of comments were either proper or, if improper, harmless. The State is entitled to respond to defendant’s argument which attacks its case and witnesses. Clearly, whether defendant’s theory of defense is reasonable in light of the evidence produced is within the scope of proper rebuttal comment. The comments in question involve nothing more than this.

People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571, and People v. Ridley (1990), 199 Ill. App. 3d 487, 557 N.E.2d 378, relied upon by defendant, are distinguishable. In each of these cases, the complained-of comments concerned the State telling the jury that to believe defendant’s witnesses each of the State’s witnesses must be lying. This type of comment did not occur here. Never did the State tell the jury what it must find to reach a certain verdict. Finally, the jury was instructed regarding the State’s burden of proof and the elements of murder. For the foregoing reasons, we reject defendant’s arguments that the State’s conduct during closing argument denied him a fair trial.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.