text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY BAUM et al., Defendants-Appellants.
    Third District
    Nos. 3—90—0459, 3—90—0460 cons.
    Opinion filed August 7, 1991.

      Verlin R. Heinz, of State Appellate Defender’s Office, of Ottawa, for appellants.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Hertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The trial court convicted the defendants, Jimmy Baum and Richard Will, of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)). Each was subsequently sentenced to a term of two years’ probation. The defendants appeal.

The record shows that in late October or early November of 1989, Peggy Tomas and her husband, John, hired Jeff Fox to move their trailer from one location to another. During the move, one of the trailer’s wheels fell off. Fox had the wheel repaired and the trailer was moved to the intended location. When Mr. Tomas paid Fox for moving the trailer, Fox requested money for the repairs to the wheel. Tomas refused to pay any extra.

On November 5, Mr. and Mrs. Tomas entered the trailer and found things amiss. The front door to the trailer had been damaged and various items had been taken. Since neither Mr. nor Mrs. Tomas had given anyone permission to enter the trailer or take the items, they called the police.

Will County sheriff’s department personnel responded to the call and investigated the matter. They noted pry marks on the door of the trailer and general disarray inside the trailer. Mr. Tomas reported that Fox and another person, defendant Baum, thought that he owed them money.

Deputy Ronald Coursey went to speak with Fox. During the course of the deputy’s conversation with Fox, defendant Will, who was also present, interrupted. He indicated that the reason the Tomases’ furniture had been taken was because the Tomases owed some people money for repairs to the trailer wheel. Will then led the police to Baum and told Baum that the police knew they had taken the furniture. Baum was subsequently taken into custody. Will then led the police to a nearby wooded area where the furniture was found.

At trial, two alternative theories were presented to explain why the defendants took the furniture. The first explanation was that the furniture was taken as collateral and that the defendants intended to keep the furniture until they were paid for the repairs they performed on the trailer. The second explanation was that the furniture was taken out of the trailer so the trailer could be repaired.

The trial court specifically discounted the defendants’ claim that the furniture was moved so the trailer could be repaired. The defendants now contend that the court must therefore have accepted the theory that the furniture was taken as collateral for a debt. They argue that since the furniture was taken as collateral, the State failed to show they had the requisite intent to commit a theft.

Initially, we disagree that the trial court’s failure to comment on the defendants’ “collateral” theory indicated its acceptance of that theory. A trial court is presumed to have understood the law and properly applied it. (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 459 N.E.2d 651; People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 433 N.E.2d 361.) Since the instant court found the defendants guilty and since we find no indication that it misunderstood the law, we conclude that it rejected their theory.

Moreover, we find no error in the trial court’s rejection of that theory. Section 19 — 1(a) of the Criminal Code of 1961 states that a person commits burglary when he knowingly enters a house trailer with the intent to commit a theft. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a).) An essential element of the crime of theft is that the accused must possess an intent to permanently deprive an owner of his property. Ill. Rev. Stat. 1989, ch. 38, pars. 16 — 1(a)(4)(A), 15 — 3.

The law is well established that since intent can seldom be proved by direct evidence, it may be inferred by the trier of fact from acts committed and circumstances in evidence. (People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608.) The right to believe or disbelieve testimony as to the state of mind of the defendant or the existence of the requisite felonious intent is the prerogative of the trier of fact. (People v. Reans (1974), 20 Ill. App. 3d 1005, 313 N.E.2d 184.) Unless it clearly appears that there is a reasonable doubt as to the defendant’s guilt, this court will not substitute its judgment for that of the trial court. People v. Guido (1962), 25 Ill. 2d 204, 184 N.E.2d 858.

A bona fide belief, even though mistakenly held, that one has a right or claim to another’s property can negate an intent to permanently deprive the owner of his property. (People v. Baddeley (1969), 106 Ill. App. 2d 154, 245 N.E.2d 593.) In Baddeley, the owner of a car took it to the defendant’s service station for repairs. After the repairs were performed, the owner drove his car home. Three days later, the car broke down again. While the owner was out of town, the defendant went to the owner’s house and towed the car out of his driveway and back to the service station. The defendant left a note in the owner’s mailbox informing him that the automobile had been taken by him to his service station. At the service station, the defendant repaired the car and stored the vehicle on the garage premises. WTien the owner refused to pay the repair bill, the defendant refused to return the car. The defendant was subsequently convicted of theft. The appellate court found that the facts, circumstances, and evidence did not indicate beyond a reasonable doubt that the defendant acted with the intent necessary for convicting him of theft.

The evidence in the instant case is quite different from that in Baddeley, and we do not believe that the trial court was unjustified in concluding from the facts and circumstances that the defendant was guilty of theft. There was evidence that the trailer door had been broken by the defendants in order to gain entry. Additionally, unlike in Baddeley, the defendants left no note indicating why or where the furniture had been taken. This suggests that the defendants intended more than to establish a security interest on a debt. Rather, a rational trier of fact could reasonably have concluded that they intended to permanently deprive the Tomases of their property.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    TONJA NOTMAN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Thrif-T-Mart, Appellee).
    Third District (Industrial Commission Division)
    No. 3—90—0853WC
    Opinion filed July 19, 1991.
    Rehearing denied October 22, 1991.
    Emmanuel E Guyon, of Streator, for appellant.
    John A. Nudo, of Joliet, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Tonja Notman, appeals from an order of the circuit court of La Salle County confirming the Industrial Commission’s (Commission’s) decision that it lacked jurisdiction to review the arbitrator’s dismissal of the case.

In February 1984, claimant filed an application for adjustment of claim with the Commission, which alleged that claimant was entitled to benefits as a collateral heir seeking death penalty benefits under section 7(d) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.7(d)). William Notman, claimant’s brother, was employed by respondent, Thrif-T-Mart, at the time of his death. Claimant alleged that she was dependent upon decedent. Section 7(d) of the Act requires a claimant seeking death benefits as a collateral heir to prove that she was more than 50% dependent upon the decedent. (Ill. Rev. Stat. 1985, ch. 48, par. 138.7(d).) On November 15, 1985, claimant was served with subpoenas requesting production of her income tax returns for the years 1980 to 1983 and of decedent’s tax returns for the same years. On November 25, 1985, after argument, the arbitrator denied claimant’s motion to quash the subpoenas and ordered her to produce the tax returns before January 6, 1986, the rescheduled hearing date. On January 6, 1986, the arbitrator continued the case to March 5, 1986, again ordering production of the documents prior to the rescheduled hearing date. On February 14, 1986, claimant forwarded documents to respondent purporting to comply with the order: the documents included various W-2 forms for claimant and decedent and claimant’s 1982 State and Federal returns. On March 5, the arbitrator again continued the case for hearing until June 4, 1986, this time ordering certified copies of all documents subpoenaed to be produced. On May 7, 1986, respondent filed a motion asking that claimant’s attorney be held in contempt for his repeated disregard of the Commission’s orders and that the matter be dismissed with prejudice. On the final hearing date, June 4, 1986, neither claimant nor her counsel appeared. The arbitrator dismissed the case with prejudice by written order dated June 11, 1986. Such order reserved ruling on the contempt issue, but stated:

“You are further notified that unless a Petition for Review is filed with the Industrial Commission within fifteen (15) days after receipt of this order and a review perfected in accordance with the provisions of the Illinois Workers Compensation Act and the Rules of the Industrial Commission then the order of the arbitrator shall be entered as the decision of the Industrial Commission.”

Claimant maintains that she never received a copy of this dismissal order. Claimant also contends that her attorney appeared before the arbitrator on June 2, 1986, and showed him a letter from the Internal Revenue Service (IRS) indicating that the returns were forthcoming. The IRS letter states that copies of claimant’s 1981 to 1984 returns were attached, but that the IRS still had not located the 1980 return.

On July 17, 1986, and August 11, 1986, claimant filed motions requesting reinstatement of the case. Claimant failed to appear at the hearing on her motion. Claimant’s attorney asserts that he was informed by telephone on the day before the scheduled hearing that the Commission would be closed on that day due to a judge’s funeral. (The Commission was not closed.) In an order dated August 25, 1986, the arbitrator denied claimant’s motion to reinstate, specifically finding that because claimant failed to file a petition for review within the time required by statute, the Commission lost jurisdiction of the matter. On September 12, 1986, claimant filed a petition for review of the arbitrator’s decision. Upon review, the Commission affirmed the arbitrator’s decision, finding lack of jurisdiction. The circuit court of La Salle County confirmed.

On appeal, claimant makes several arguments. First, she contends that the Commission had no authority to enter a dismissal order for failure to produce discovery materials and therefore such order was void. Alternatively, claimant maintains that the Commission’s order could only have been a dismissal for want of prosecution, for which the Act allows claimant 60 days to petition for reinstatement. Finally, claimant maintains that her petition for reinstatement, filed within 15 days after receipt of the order, was sufficient as a petition for review.

Initially, claimant contends that the arbitrator lacked authority to dismiss the cause for failure to produce the tax returns as ordered by subpoena, and that the order is, therefore, void. Respondent maintains that the order is not void because the Commission had both subject matter and personal jurisdiction and the order was within its inherent authority. We agree with respondent.

A “void judgment” is one entered by a court or quasi-judicial tribunal that lacks jurisdiction over the parties or subject matter or that lacks the inherent power to make or enter the decision and may be attacked at any time, either directly or collaterally. (City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 357 N.E.2d 1154.) Further, as a statutory creature, the Commission’s powers derive from the statutes which authorize and create it. City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 357 N.E.2d 1154.

The Industrial Commission has original subject matter jurisdiction over actions, such as this one, brought under the Workers’ Compensation Act. Moreover, claimant, by filing this claim, and respondent, by responding, conferred personal jurisdiction upon the Commission. The Commission, therefore, did not lack either subject matter or personal jurisdiction. Nor do we believe that the arbitrator here lacked the inherent power to dismiss claimant’s cause for her failure to produce the ordered documents.

Section 19(b) of the Act provides:

“The Arbitrator shall make such inquiries and investigations as he or they shall deem necessary and may examine and inspect all books, papers, records, places, or premises relating to the questions in dispute and hear such proper evidence as the parties may submit.” Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b).

The Act unequivocally authorizes the arbitrator to order production of documents related to disputed issues. Whether claimant was “dependent” on the decedent to the extent of 50% or more of total dependency (Ill. Rev. Stat. 1985, ch. 48, par. 138.7(d)) was a critical issue in this case, and the tax records ordered by the subpoena would likely have provided necessary information regarding that status and claimant’s entitlement to relief. Claimant’s repeated failure to produce these documents precluded the Commission from adequately resolving this threshold issue. Claimant suggests that the arbitrator’s authority permitted him to take only two actions: hear the case and issue a written decision, as authorized by section 19(b) of the Act, or dismiss the case for want of prosecution, as authorized by Rule 7020.90 of the Industrial Commission. We disagree. Although the Act does not explicitly so provide, we believe that the arbitrator’s inherent authority permitted him under the circumstances here to enter the present order. Any other result would fail to recognize the arbitrator’s authority to conduct hearings and make decisions on issues raised through the filing of a claim and to reasonably dispose of cases. We find no authority to support claimant’s position and, therefore, conclude that the Commission’s order was not void.

We also decline to accept claimant’s characterization of the order as a dismissal for want of prosecution, which would entitle claimant to file a petition to reinstate within 60 days. A review of the arbitrator’s order reveals that the cause was not dismissed for want of prosecution, as claimant suggests, but rather for her failure to produce the tax returns. Paragraphs 3 through 8 of the four-page order refer primarily to the tax returns, tracing the chronology of the subpoena for the returns, the subsequent orders and claimant’s failure to produce them. Indeed, the order details the following: the service of subpoenas in November 1985; the subsequent denial of claimant’s motion to quash; claimant’s purported production of documents in February 1986; orders dated November 26, 1985, January 6 and March 5, 1986, ordering production of the tax returns and continuing hearing; and the March 1986 order requiring claimant to certify the tax returns as true, complete and without alteration and to provide a letter from the IRS if the returns were lost. After setting forth the above chronology regarding the tax returns, the arbitrator dismissed the case with prejudice. Based upon the detailed reference to the tax returns and the tenor of the order, we cannot conclude that the case was dismissed for want of prosecution. Rather, the arbitrator dismissed the case because claimant failed, despite three hearing continuances over a period of several months, to supply documents which she needed to establish her claim against respondent. As such, claimant’s attempt to reinstate the case was inappropriate, especially in light of the order’s specific direction that unless claimant filed a petition for review within 15 days, the order would be entered by the Commission. Such procedure is also mandated by the plain language of the Act. Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b).

Finally, we reject claimant’s argument that its petition for reinstatement was sufficient as a timely petition for review. Claimant suggests that if the Commission received the order on June 26, 1986, then processed it in due course, her petition, filed on July 15, 1986, must have been timely filed. An arbitrator’s decision becomes the Commission’s decision and is conclusive, absent fraud, unless a petition for review is filed by either party within 15 days after the party receives the decision and notification of when it was filed. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b); Wiscons v. Industrial Comm’n (1988), 176 Ill. App. 3d 898, 531 N.E.2d 956.) By filing a motion to reinstate on July 15, 1986, claimant demonstrated that she knew at least as of that date about the arbitrator’s decision. Claimant failed to file a petition for review until September 12, almost 60 days later. Such delayed action simply failed to meet the statutory filing deadline, as delineated in the arbitrator’s order.

Moreover, we refuse to equate claimant’s motion to reinstate with a petition for review. Claimant urges, relying on Cranfield v. Industrial Comm’n (1980), 78 Ill. 2d 251, 399 N.E.2d 1316, that this court should consider her petition for reinstatement as a petition for review. In Cranfield, the trial court confirmed the Commission’s decision denying reinstatement of the case, which had been dismissed for want of prosecution. On appeal, our supreme court found that the Commission properly treated claimant’s petition for reinstatement as a timely filed petition for review. The court focused on the arbitrator’s dismissal for want of prosecution, finding that “in these circumstances” claimant had 60 days to seek reinstatement. Importantly, the court noted: “Had claimant in fact sought review of an arbitrator’s award or other disposition of the case on the merits, we would [find jurisdiction lacking.]” (Cranfield, 78 Ill. 2d at 255, 399 N.E.2d at 1318.) Unlike Cranfield, however, the arbitrator here did not dismiss the case for want of prosecution. Rather, the arbitrator dismissed the case after claimant failed, despite adequate time and various orders, to produce the required documents, which were relevant to the key issue in the case. Moreover, the respondent in Cranfield moved to dismiss for want of prosecution; conversely, the transcript of the June 4, 1986, hearing here reveals that the basis of respondent’s motion to dismiss was the failure to produce the subpoenaed tax returns. Because claimant’s eligibility for benefits turned on her ability to prove dependency, her failure or inability to produce such evidence adversely affected the merits of her claim. We, therefore, believe such dismissal is more akin to a disposition on the merits than a dismissal for want of prosecution and, as such, find Cranfield distinguishable from the present case.

We find that the Commission properly dismissed the 1986 petition on the ground that it lacked jurisdiction based upon claimant’s failure to file a petition for review within 15 days after the arbitrator entered his decision.

For the foregoing reasons, the judgment of the circuit court of La Salle County, confirming the Industrial Commission’s dismissal of the petition for lack of jurisdiction, is affirmed.

Judgment affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER and LEWIS, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. LESTER COKLEY, Petitioner-Appellant.
    Third District
    No. 3—90—0515
    Opinion filed September 24, 1991.
    Daniel Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The petitioner, Lester Cokley, appeals the denial of his petition for post-conviction relief. We affirm.

The record shows that in 1987 the petitioner was charged with robbery, aggravated battery, and resisting a peace officer (Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 1, 12 — 4, 31 — 1). The record does not contain a transcript of the jury selection process. Following a trial, the jury convicted the petitioner as charged. The trial court subsequently sentenced him to two concurrent 12-year terms for the robbery and aggravated battery convictions. The court did not impose a sentence for the remaining conviction.

On appeal, this court affirmed the convictions but reduced the aggravated battery sentence to five years. The petitioner later filed a post-conviction petition, which stated in relevant part as follows:

“In the instant-cause [sic] Petitioner was deprived of a fair trial by a jury of his peers as provided in the U.S. Constitution, when the State only supplied the court with an ALL WHITE JURY, when Petitioner and allgeded [sic] victim both are Afro-Americans (Black), Petitioner relies sowhat [sic] on the ruling of Batson v. Kentucky, in Batson the U.S. Supreme Court held that the State cannot use its Pre-emptory [sic] Challenges to— [sic] Systematically Exclude Blacks from the jury, in the instant case there was [sic] NO BLACKS in the entire JURY PANEL for petitioner to pick from. Thusly, this conduct of the State impinged on Petitioner’s ‘Due Process Rights’ made applicable by the 14th Admendment [sic] of the United States Constitution.”

The circuit court appointed counsel to represent the petitioner. On October 31, 1989, the petitioner filed a motion for substitution of judge and appointment of new counsel. The motion alleged that relief should be granted because the trial court had suggested to counsel that the petitioner should consider voluntarily dismissing his petition.

On November 14, 1989, counsel filed a document entitled “Motion to Withdraw and 651 Certificate.” In the document, counsel stated that he had reviewed the petition and record, spoken with the petitioner, and consulted with the petitioner’s appellate attorney. He concluded that the petition could not be amended to allege a substantial denial of the petitioner’s constitutional rights. Accordingly, he requested that he be allowed to withdraw from the case. Appended to the motion was a fee petition indicating that he had worked 14.2 hours on the case.

At a hearing on November 14, 1989, counsel reiterated his belief that he could not amend the petition to allege a constitutional issue. After the petitioner indicated that he had no objection to counsel’s withdrawal, the circuit court allowed counsel to withdraw from the case. The petitioner then stated he was unable to retain counsel and would proceed pro se. The circuit court granted the State time to file a response to the petition and set the next hearing for January 23, 1990.

There is no transcript of the January 23 hearing. The common law record indicates, however, that on that date the petitioner filed a “Motion to Proceed In Forma Pauperis and Request for Free Transcripts.” It also indicates that the circuit judge removed himself from the cause. Later that day, the chief judge transferred the cause to a different judge.

On May 11, 1990, the petitioner filed an amended petition for post-conviction relief. At a hearing held on June 22, 1990, the petitioner stated that he lacked adequate legal counsel. The prosecutor then informed the court that at the January 23 hearing the petitioner had requested counsel, the State had objected, and the court had denied the request. The judge stated that since his predecessor had appointed counsel, the petitioner was not entitled to new counsel. After the petitioner stated that he had no evidence to present, the court granted the State’s motion to dismiss the petition. The petitioner appeals this dismissal.

The petitioner initially argues that his counsel was ineffective. He contends that instead of withdrawing, his counsel should have amended the petition to better state the claim that the petitioner had not received a proper jury or venire. He further argues that under these circumstances, the court erred in allowing counsel to withdraw. He asks this court to reverse that order and remand for further proceedings.

For the petitioner to prevail on a post-conviction petition, he must establish a substantial denial of his constitutional rights. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1; People v. Ward (1971), 48 Ill. 2d 117, 268 N.E.2d 692.) Although the petitioner alleged that he had an all-white jury and venire, that fact does not establish a constitutional violation. Instead, the petitioner must show that the State systematically excluded a particular racial group from either the jury or the venire. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) Although we acknowledge that the jury selection was not transcribed, it must be noted that there is no support in the record for the claim that the State excluded a particular racial group. We cannot reverse this cause solely for speculative reasons.

Furthermore, it appears that counsel thoroughly investigated the petitioner’s claims. In the 14.2 hours he spent on the case, he reviewed the petition and record, spoke with the petitioner, and consulted his appellate attorney. After concluding that he could render the petitioner no further assistance, he filed a certificate in compliance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Since we see no fault with counsel’s performance, we find that he was properly allowed to withdraw from the case.

The petitioner next argues that the trial court’s failure to appoint new counsel for him after he filed an amended petition violated the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.).

We disagree. The Act provides that if an indigent petitioner requests counsel, the trial court may appoint counsel for him if the petition is not dismissed within 30 days as frivolous. (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 2.1, 122 — 4.) The Act does not state whether the court must appoint new counsel on an amended petition after his previous counsel has withdrawn pursuant to Rule 651(c). We find that in this instance the amended petition should be viewed as a continuation of the first petition. (See, e.g., People v. Wallace (1990), 201 Ill. App. 3d 943, 559 N.E.2d 539 (holding that for purposes of dismissal under section 122 — 2.1, an amended petition is considered a continuation of the first petition).) Here, the court-appointed counsel on the first petition withdrew from the case. Since there is no provision for the appointment of additional counsel on a post-conviction petition, we find no error.

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

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE BARRY

text:
    JOAN M. SHERWIN et al., Plaintiffs-Appellees, v. GEORGE L. AULT, Defendant-Appellant.
    Third District
    No. 3—90—0858
    Opinion filed September 25, 1991.
    Quinn, Johnston, Henderson & Pretorius, of Peoria (Zane L. Lucas, Jr., of counsel), for appellant.
    Barash, Stoerzbach & Henson, of Galesburg (Burrel Barash, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs Joan M. Sherwin and Richard S. Murphy are owners of farmland situated primarily in Warren County, Illinois. During the 1987 crop year, defendant George L. Ault farmed the land pursuant to a written “operating agreement” drafted by Sherwin, an attorney, and signed by her and Ault on February 12, 1987. The six-page document extensively details the parties’ rights and responsibilities and recites in relevant part as follows:

“Term The term of this agreement shall be from March 1, 1987, to December 31, 1987, or such time as the crop grown on the Farm is completely harvested and either sold or placed into storage facilities.
This agreement is not intended to be a lease of the land and shall not continue from year to year after expiration of the initial term. This instrument in itself constitutes notice to the Operator of the termination of the Agreement on December 31, 1987, and no further notice shall be required.”

On October 13, 1987, defendant spoke with Sherwin about renewing their agreement for the 1988 crop year. Sherwin said “okay” and that she would forward the “paperwork” to Ault at a later date. According to Ault, Sherwin indicated that the agreement would be the same as for 1987. The new agreement was not sent, and in January 1988, Ault approached Sherwin and repeated his desire to farm the land in 1988. At that time, Sherwin said only, “I’ll think about it.” Still nothing was sent. Then, on February 20, Ault informed Sherwin that he had done all of his paperwork for the 1988 crop year and just needed their signatures to proceed. At that point, Sherwin told Ault that he was not going to be farming her land. Ault nevertheless attempted to enter the land with his tractors in March, and on March 25, 1988, Sherwin brought this action for declaratory judgment and injunctive and monetary relief.

Defendant answered the complaint and counterclaimed for damages and other relief. The parties conducted discovery and both moved for summary judgment. On November 21, 1990, the trial court granted summary judgment in plaintiff’s favor on one count of the main complaint and on three counts of the countercomplaint. The court ruled that the parties did not intend to be contractually bound by their informal conversation relative to the renewal of their farming arrangement on October 13, 1987, and that, in any event, the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1) would preclude enforcing any oral agreement made on October 13, 1987, because it was not reasonably capable of being performed by October 13, 1988. The court also found that there was no just reason to delay enforcement of appeal, and defendant brought this appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). We affirm.

Defendant initially challenges the trial court’s determination that the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1) applies on these facts. Defendant argues, under Martin v. Federal Life Insur ance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998, that the Statute of Frauds applies to oral contracts which are not to be performed within the space of one year from the making thereof. Defendant, citing Martin, states that the test is whether it appears from a reasonable interpretation of the terms of the agreement that it is capable of performance within a year, not whether such occurrence is likely. Defendant then states that this court should determine, based on a review of the record, that a reasonable interpretation of the terms of the operating agreement indicates that the agreement is capable of being performed within one year. Defendant requests the court take judicial notice of the fact that many farmers in central Illinois and particularly in Warren County have the vast majority of their crops harvested by October 13 of each year. Plaintiff, in response, argues that it is clear by a review of the 1987 written contract that the “Term” of the operating agreement ended on December 31 of the crop year. Plaintiff further states that the section “Storage facilities” of the agreement provides for the defendant to use one-half of plaintiff’s storage facilities until September 15 of the year following the crop year. Since both December 31, 1988, and September 1989 were more than a year after October 13, 1987, the plaintiff’s argument is that any agreement entered into on October 13, 1987, which incorporates by reference the terms of the prior year’s agreement, must have been in writing.

The statute provides in relevant part:

“[N]o action shall be brought *** to charge any person *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the *** agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (Ill. Rev. Stat. 1989, ch. 59, par. 1.)

The test for determining whether the statute bars a particular agreement is “whether the contract by its terms is capable of full performance within a year, not whether such occurrence is likely.” (Martin v. Federal Life Insurance Co., 109 Ill. App. 3d at 604, 440 N.E.2d at 1004.) The one-year period is measured from the time of the making of the agreement. Thus, in an employment contract where the parties orally agreed on May 31, 1960, to plaintiff’s employment for a one-year period beginning June 6, 1960, the contract was held unenforceable by virtue of the Statute of Frauds. Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill. 2d 507, 202 N.E.2d 516.

The statute applied as well in a year-to-year farm lease arrangement wherein the parties orally agreed in the fall of 1936 to extend the terms of a written agreement dated March 1, 1934. (Anderson v. Collinson (1939), 300 Ill. App. 22, 20 N.E.2d 980.) The written lease in Anderson specified that it was for the period March 1, 1934, to March 1, 1935. Thereafter, the parties renewed it orally in the fall of 1934 and 1935 for the following crop year beginning on the succeeding March 1. Although the evidence was conflicting, the trial court believed plaintiff-lessee’s testimony that the parties orally agreed to another extension in the fall of 1936 for the crop year of March 1, 1937, to March 1, 1938. The court ruled, however, that plaintiff’s part performance by plowing and sowing small grain in the fall of 1936 in preparation for the 1937-38 crop year (a factor neither alleged nor appearing in the case before us today) was sufficient to avoid the Statute of Frauds.

In the case before us, although the February 1987 written agreement expressly states that it was not intended as a lease of land, it has characteristics of both a farm lease and an employment agreement. Applying controlling precedent as set forth in Sinclair and Anderson, it is readily apparent that the trial court did not err in holding that the Statute of Frauds bars enforcement of the parties’ October 13, 1987, oral agreement. The written agreement extends by its terms from March 1 to December 31, 1987. An oral renewal of the agreement, to be enforceable as a contract by its terms capable of full performance within a year, would have to have been made after December 31, 1987. Any agreement for the March through December 1988 crop year which was made prior to December 31, 1987, would have to have been in some written form to avoid the bar of the Statute of Frauds. Since the facts are undisputed that there was no written note or memorandum of the October 1987 discussion agreeing to extend the written contract and no oral discussion to so extend it after December 31, 1987, we agree that the parties did not have an enforceable contract for the March through December 1988 crop year.

We do not subscribe to defendant’s position that the Statute of Frauds does not control since it was possible that the oral contractual agreement could have been fully performed by completing the crop harvest for the 1988 season before October 13, 1988. As aforesaid, the test for determining the one-year period is measured from the date the agreement is made — in this case, October 13, 1987 — and extends to the termination date agreed to by the parties. Reference to the terms of the written 1987 crop year agreement would determine the termination date of the oral agreement — December 31, 1988. Defendant cites Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 271, 292 N.E.2d 52, 57, in support of his argument that it was not impossible to complete the agreement within a year. In Stein, unlike here, the parties’ agreement did not contain a specific date for the completion of performance. Rather, a contingency event was the only provision marking the end date. The parties agreed to plaintiff’s employment “as long as the customer reordered the same style number of fabric.” On review, the court noted that that event might never materialize or could happen at any time before the expiration of a year. Consequently, because it was possible pursuant to the terms of the agreement that performance could be fully completed within a year, the Statute of Frauds was no bar to its enforcement.

In this case, we need not speculate about the likelihood or possibility of completing harvest, storing grain or marketing it within any particular time period because the contract contained a specific date by which it would be considered fully performed. To the extent that the first paragraph of that section of the agreement entitled “Term” may be ambiguous in referring to the completion of harvesting and storage or sale of the crop, the second paragraph leaves no question but that the parties intended that their contractual rights would not be terminated before December 31 of the crop year. Because that end date fell more than a year after the parties agreed to renew their contract, any considered renewal of the agreement cannot survive the bar of the Statute of Frauds. Under the circumstances, we do not deem it necessary to comment upon plaintiff’s argument in the alternative to the effect that the parties’ contemplated contract would have extended until September 1989 by reason of the provision for storage.

Defendant also argues that his discussion with Mrs. Sherwin in October 1987 concerning a written operating agreement to be drafted and signed in the future was not “mere negotiations” rendering the discussion unenforceable for lack of definiteness. In this regard, defendant relies primarily on Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 481 N.E.2d 712, where the court ruled that if a prior agreement embodies the same terms as a subsequently contemplated formal agreement, a contract may be created upon the parties’ proven intention to be bound even though the second formal agreement is not reduced to writing. The Dolins case involved a sale of a “package of hotels” owned by the Dolinses. After a series of negotiations, a letter was signed which mentioned five hotel properties by name and address, a purchase price, general terms of sale and financing and the seller’s responsibility for the brokerage commissions. The letter was referred to as a letter of intent. The letter of intent contained language which required that the final contract shall be in form and substance acceptable to attorneys for the seller and buyer. No final contract was ever written or signed by any of the parties. The issue in Dolins involved the question of whether the letter of intent could be specifically performed where it contained language about a subsequent formal agreement. No issue was presented to the court about the Statute of Frauds. The letter of intent was a written document and thus would have complied with the Statute of Frauds in any event. While we have no dispute with the rule of law stated in Dolins, it has no application in a case such as this that falls squarely within the Statute of Frauds.

In summary, we hold that the trial court committed no error in ruling that the parties’ oral agreement of October 1987 was unenforceable as a matter of law. Defendant’s motion for summary judgment was properly granted. The judgment of the circuit court of Warren County is affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN D. CURTIS, Defendant-Appellee.
    Third District
    No. 3—91—0054
    Opinion filed September 25, 1991.

      Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Brian D. Curtis, was charged with three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)). The trial court thereafter granted his motion to suppress his confession. The State appeals.

The record shows that in August of 1990, the defendant filed a motion to suppress statements he had made to a Department of Children and Family Services (DCFS) investigator on May 10, 1990. Among other things, the defendant argued that he had previously invoked his right to counsel and therefore his statement was taken in violation of his sixth amendment right to counsel. The trial court ruled in favor of the defendant on this basis and suppressed the statements.

The facts necessary for our determination of the issues the State raises are as follows. At the suppression hearing, DCFS investigator Michael Keys testified that prior to interviewing the defendant he knew the defendant had consulted an attorney. Keys knew this because on April 24 a Peoria police officer had telephoned and told him that the defendant’s attorney had made an appointment to meet with someone from DCFS at the police station on April 25. Keys was later told by the police department that the defendant’s attorney had cancelled the meeting. A week later, the defendant’s attorney cancelled a second meeting. At this point, Keys’ supervisor told him to contact the defendant directly to determine whether the defendant wished to talk. Keys stated his purpose in interviewing the defendant was to question him about the allegations against the defendant and to obtain the defendant’s statement about the circumstances of the case.

Keys testified that he telephoned the defendant at home on May 9 and said he needed to talk to him about a case Keys was working on. He and the defendant agreed to meet at the Peoria DCFS office the next day at 11 a.m. The next day, the defendant had car trouble, so Keys offered to pick him up. The defendant agreed and Keys subsequently brought him to the DCFS office.

Keys took the defendant to an inner office where two other DCFS investigators, Jay Brenneman and Terry Trumpey, were present. Although the door was closed, the defendant was never told he was under arrest, that he could not leave, or that he would go to jail if he did not cooperate. According to Keys, he did not administer Miranda warnings because it was against Department policy to do so. Neither he nor the defendant ever discussed whether the defendant wished to have counsel present. After at least 30 minutes of questioning, the defendant provided a detailed written statement.

The defendant testified at the suppression hearing that he was 21 years old and had obtained his GED. He stated that he hired an attorney as soon as he heard about the charges against him. He knew the charges were serious and his attorney also told him they were. The defendant stated that he knew his attorney had set up two appointments with the Peoria police, which his attorney later cancelled. He asserted that he did not know that someone from DCFS was to attend those meetings.

The defendant’s testimony largely paralleled Keys’ testimony regarding the telephone calls to set up their interview. The only exception was that he claimed he asked to meet at his house, but Keys said it would be better to meet at the DCFS office. The defendant added that he telephoned his attorney after Keys called, but he was not in his office. According to the defendant, he went to the DCFS office willingly the next day in order to tell his side of the story.

In addition to the above-noted testimony, we note that it is clear from the record that the Peoria police contacted DCFS to solicit its involvement in the case.

On appeal, the State argues that the trial court erred in suppressing the defendant’s statements, because the DCFS investigators who spoke with him were not “agents of the state” for sixth amendment purposes. We disagree.

Questions on suppression motions are primarily factual determinations that will not be reversed on appeal unless they are against the manifest weight of the evidence. (People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628.) Questions of credibility and findings of fact are properly resolved in the trial court and are entitled to deference on appeal. People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.

The sixth amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) This protection attaches as a matter of right at the initiation of adversary judicial proceedings, and a defendant is entitled to counsel at all critical stages of the proceedings. Government efforts to elicit information from the accused, including interrogation, represent “critical stages” at which the sixth amendment applies. (Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.) Once the right to counsel has attached and been asserted, the State must scrupulously honor it. The sixth amendment imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek assistance of counsel. (Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477.) Statements obtained in violation of a defendant’s sixth amendment rights are inadmissible at trial. Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.

The question of whether a DCFS investigator may be considered a prosecutorial agent has been previously addressed by this court in People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628. While in Hagar we addressed the issue in a fifth amendment context, we consider the analysis equally applicable in the sixth amendment setting. In Hagar, the analysis focused on the conduct and purpose or intent of the DCFS investigator. We found that DCFS employees who only give counseling and who do not solicit or encourage confessions are merely “case workers” and not prosecutorial agents. However, DCFS investigators who inquire into abuse and neglect charges, and who instigate charges where appropriate, are prosecutorial agents of the State.

In the instant case, the facts reveal that the defendant invoked his right to counsel at the very beginning of the case. DCFS investigator Keys, who had been called by the police, was aware of this when he made direct contact with the defendant. Keys admitted that he made no attempt to contact the defendant’s attorney to inform him of the meeting. Further, it is clear from the record that Keys’ purpose in interviewing the defendant was to obtain a confession. In fact, the trial judge specifically found that Keys did not contact the defendant’s attorney because he wanted to obtain a confession from the defendant. Based on the foregoing, we find that the trial court’s decision was not manifestly erroneous.

The State next argues that assuming the defendant’s sixth amendment right to have counsel present did attach, the defendant waived it by voluntarily meeting with and answering the questions of the DCFS investigator. We find the State’s argument unpersuasive.

Once an accused invokes his right to counsel, interrogation must cease until an attorney has been made available. Subsequent waiver cannot occur unless the accused himself initiates further communication. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) To establish waiver, it is incumbent upon the State to prove an intentional relinquishment or abandonment of a known right or privilege. (Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.) Courts apply a strict standard and indulge in every reasonable presumption against waiver. (Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) A valid waiver cannot be established by showing only that the accused merely responded to further government-initiated interrogation. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) Once the right to counsel is invoked, the accused has no duty to reassert it (Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232), and a heavy burden rests with the government to respect or preserve the right (Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404).

The record in the instant case reveals that the defendant invoked his right to counsel when he was contacted by police on April 24, 1990, and told them to talk to his attorney. The defendant was formally charged on April 30 and appeared in court with counsel on May 1, 1990. Thus, adversarial judicial proceedings had already begun against the defendant when DCFS investigator Keys contacted him.

It is important to again note that it was the DCFS investigator, not the defendant, who initiated the contact. Furthermore, the defendant stated that he tried unsuccessfully to contact his attorney following Keys’ telephone call. This is an indication that it was not the defendant’s intention to relinquish his right to counsel. We also note that nothing in the record indicates that the defendant did anything to affirmatively relinquish his sixth amendment right to have counsel present during the interview with Keys. We therefore conclude that the defendant did not waive this right.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY ELDER, Defendant-Appellant.
    Third District
    No. 3—91—0056
    Opinion filed September 25, 1991.

      Rudman & Sabuco, of Joliet (Roy A. Sabuco, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Jeffrey Elder was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(2)) and attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4). Defendant raises the following issues on appeal: (1) whether the trial court erred in excluding testimony of defendant’s expert witness regarding the defendant’s mental state at the time of the offense and allowing the State’s expert witness to testify in rebuttal; (2) whether the trial court erred in refusing to instruct the jury on second degree murder; and (3) whether the defendant’s sentence was excessive. We affirm.

The record shows that the defendant and the murder victim, Lynn Mallas, had an intimate relationship, but were never married. Mallas broke off the relationship and moved out of the defendant’s apartment some time in March or April of 1990. On June 2, 1990, the defendant saw Mallas, her two-year-old daughter Angela, and her fiance, Tom Wicks, in an automobile. The defendant, in a rented car, followed them to Wicks’ apartment. The defendant blocked Mallas’ exit from the car, and they exchanged words. As Mallas tried to get past him, the defendant shot her twice in the back, killing her in front of her two-year-old daughter. After seeing that Mallas was shot, Wicks fled on foot. The defendant chased after Wicks and caught up to him when Wicks tripped and fell in a nearby field. The defendant then shot Wicks in the chest. Wicks rolled onto his stomach, and the defendant shot him again in the back. After the defendant fled the scene, Wicks managed to return to his apartment and tell a neighbor to call the police. Wicks was seriously injured, but he survived.

We first address the defendant’s contention that the trial court erred in restricting defendant’s expert from testifying as to defendant’s state of mind at the time of the offense.

Dr. Lawrence Egel, a psychologist, conducted a number of psychological tests on the defendant prior to trial. The defense proposed to have Dr. Egel testify at trial that, in his opinion, the defendant had a “dependent personality pattern” and at the time of the crime was “acting under a sudden and intense passion resulting from serious provocation.”

The State filed a motion in limine to exclude the testimony of Dr. Egel. The trial court allowed Dr. Egel to testify as to the tests he conducted on the defendant, the results of those tests, and his opinions concerning the defendant’s personality. He was not allowed, however, to testify as to the defendant’s state of mind at the time of the offense or to state his opinion that the defendant was acting under sudden and intense passion as a result of serious provocation. The trial court held that such testimony was an opinion as to an ultimate issue of fact in the case which was not beyond the common understanding of the jury.

The question of the defendant’s mental condition at the time of the crime is a question of fact to be determined by the trier of fact. (People v. Ford (1968), 39 Ill. 2d 318, 235 N.E.2d 576.) Expert opinion may not be admitted on matters of common knowledge unless the subject is difficult to comprehend and explain. (People v. Johnson (1981), 97 Ill. App. 3d 1055, 423 N.E.2d 1206.) We find that a jury is capable of determining whether the defendant was acting under a sudden and intense passion as a result of serious provocation.

In People v. Ambro (1987), 153 Ill. App. 3d 1, 505 N.E.2d 381, the defendant and his wife had an argument during which the wife called the defendant an alcoholic and told him that she was involved with another man. The defendant then killed his wife by stabbing her in the heart with a kitchen knife. At trial, the defense attempted to have a psychiatrist testify as to defendant’s mental state at the time he killed his wife. The trial court refused to allow the defendant’s expert to testify that the defendant was acting under a sudden and intense passion at the time he killed his wife. The appellate court agreed, finding that “the jury could have arrived at its decision based on its knowledge without the help of expert testimony.” (People v. Ambro (1987), 153 Ill. App. 3d 1, 8, 505 N.E.2d 381, 386.) Although the appellate court agreed that the expert testimony was properly excluded, it reversed the defendant’s murder conviction and remanded the cause for a new trial, finding that a verbal communication of adultery is sufficient provocation for voluntary manslaughter, and that the jury should have been given an instruction on that offense. The supreme court overruled that finding in People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942, holding that a verbal communication of adultery falls within the rule that mere words are insufficient provocation for voluntary manslaughter. However, that portion of the Ambro opinion dealing with the admissibility of expert testimony was not disturbed by Chevalier.

In People v. Aliwoli (1976), 42 Ill. App. 3d 1014, 356 N.E.2d 891, the trial court excluded psychiatric testimony regarding the issue of whether defendant had the requisite criminal intent to commit attempted murder. The appellate court affirmed, holding that the question of whether the defendant had the specific intent to kill was a question of fact for the jury, and that “the testimony of the psychiatrist would not only usurp the province of the jury, but it would probably not have persuaded them in resolving such issue of fact.” Aliwoli, 42 Ill. App. 3d at 1021, 356 N.E.2d at 897.

The defendant relies on a line of cases which has held that expert testimony is admissible in order to assist the trier of fact even though the testimony is an opinion on an ultimate issue in the case. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218; People v. Goolsby (1977), 45 Ill. App. 3d 441, 359 N.E.2d 871; People v. Carbona (1975), 27 Ill. App. 3d 988, 327 N.E.2d 546.) This same argument was made and rejected in Ambro, where the court stated: “That proposition is correct in cases where the expert testifies to facts requiring scientific knowledge not within the common knowledge of the jury.” Ambro, 153 Ill. App. 3d at 8, 505 N.E.2d at 386.

The defendant also argues that the trial court erred in allowing the State’s expert to testify in rebuttal to Dr. Egel’s testimony. The defendant contends that the testimony of the State’s expert, Dr. Ali, was not proper rebuttal testimony because Ali agreed with defendant’s expert that the defendant was not suffering from a personality disorder. Rebuttal evidence is that which is produced by the prosecution to explain, repel, contradict, or disprove evidence presented by the accused. (People v. Rios (1986), 145 Ill. App. 3d 571, 495 N.E.2d 1103.) The decision whether to admit rebuttal testimony is within the sound discretion of the trial court, and its decision will not be reversed absent a showing of abuse of discretion. People v. Buckner (1984), 121 Ill. App. 3d 391, 459 N.E.2d 1102.

Defendant's expert, Dr. Egel, testified that the defendant did not have a personality disorder. He also testified that the defendant did have a “dependent personality pattern” and that, under the circumstances, the commission of the crime in this case was a normal reaction for a person with that type of personality.

The prosecution called Dr. Ali, a psychiatrist, to testify in rebuttal. Dr. Ali interviewed the defendant on two occasions before trial and reviewed the results of the tests administered by Dr. Egel. Dr. Ali agreed with Dr. Egel that the defendant did not have a personality disorder. However, Dr. Ali stated that he was unable to form an opinion as to whether the defendant had a “dependent personality pattern” because that term did not exist in psychiatry. He further testified that Dr. Egel’s opinion was not credible because it was not based on the Diagnostic and Statistical Manual of Mental Disorders, which Dr. Ali characterized as the definitive manual for diagnosing mental disorders. This testimony clearly contradicts or disproves the testimony of Dr. Egel and was properly admitted as rebuttal evidence.

The defendant next argues that the trial court erred in refusing to give the jury an instruction on second degree murder. The defense contends that the relationship between the defendant and the murder victim, when coupled with the defendant’s “dependent personality” and the confrontation that took place on the day of the offense, were sufficient to incite a sudden and intense passion caused by serious provocation as required for mitigation of a homicide from first to second degree murder under section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, eh. 38, par. 9 — 2). Section 9 — 2 provides in relevant part:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed ***[.] * * *
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.)

The offense of second degree murder replaced the offense of voluntary manslaughter in Illinois in 1987 (Pub. Act 84 — 1450 §2, eff. July 1, 1987). “However, with the major exception of placing the burden on the defendant to prove the factor in mitigation, the offense of voluntary manslaughter under the old statute, and second degree murder under the new statute, are substantially the same.” People v. Timberson (1989), 188 Ill. App. 3d 172, 177, 544 N.E.2d 64, 66.

In Illinois, only four categories of provocation have been recognized as sufficiently serious to reduce the crime of first degree murder to second degree murder. They are: (1) substantial physical injury or assault; (2) mutual quarrel or combat; (3) illegal arrest; and (4) adultery with the offender’s spouse. (People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78; People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.) The defendant has the burden of establishing some evidence of serious provocation, or the trial court may properly deny a second degree murder instruction.

The facts of this case do not fall under any of the four categories of serious provocation recognized in Illinois. The first three categories clearly do not apply. Under the fourth category, there is obviously no evidence of adultery with the offender’s spouse since the defendant and the victim were not married.

The defendant argues that this last category should be expanded to include the “special relationship” between the defendant and the victim. The facts in this case closely parallel those in the recent supreme court case of People v. McCarthy (1989), 132 Ill. 2d 331, 547 N.E.2d 459. McCarthy was well summarized in People v. Hernandez (1990), 204 Ill. App. 3d 732, 562 N.E.2d 219:

“In McCarthy, the victim, Adrianne Neal, and the defendant had dated since they began high school in 1974. They never married, but they had one daughter in 1978 and another in 1981. In April 1983, Adrianne and the children moved out of the apartment they shared with the defendant. On June 7, 1983, the defendant forcibly entered Adrianne’s apartment and found her and another man dressed in their underwear in bed, and he shot both of them. The man escaped, but Adrianne died as a result of five close-range shots.
On appeal from his conviction of murder and his 34-year sentence, the [appellate] court agreed with the defendant that the trial judge had erred in refusing defense counsel’s tendered instructions on the offense of voluntary manslaughter. The court believed that such a verdict should be an available option even in the absence of a marital relationship and that the evidence in the case warranted the use of such an instruction. Accordingly, it reversed and remanded the cause for a new trial.
The supreme court reversed the McCarthy decision. In reversing, the supreme court did not decide whether the category of serious provocation already recognized in instances of spousal adultery should be enlarged to include unmarried persons who share a marital-type relationship. Rather, it focused on the fact that the relationship had broken off two months before the homicide occurred. In declining to fashion a rule that would permit use of the voluntary manslaughter instruction when the relationship in question has effectively ended, the court adhered to previous cases, which stated that the provocation of adultery will not warrant use of the voluntary manslaughter instruction when the spouses are already divorced. (People v. McCarthy (1989), 132 Ill. 2d 331, 341-42[, 547 N.E.2d 459].) Further, the court found no evidence apart from the defendant’s own testimony that his actions were engendered by the ‘sudden and intense passion’ required by statute. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a)(1).) Rather the court felt the defendant’s actions suggested he ‘was stalking the victim and intended to kill her.’ ” Hernandez, 204 Ill. App. 3d at 741-42, citing McCarthy, 132 Ill. 2d at 342, 547 N.E.2d at 463.

Similarly here, although Mallas and the defendant had previously enjoyed an intimate relationship, that relationship had ended two months before the homicide occurred. Additionally, there is no evidence in this case to suggest that the defendant was acting under a “sudden and intense passion.” In fact, as in McCarthy, the evidence here suggests that the defendant literally stalked the murder victim. The defendant carried a loaded gun and followed Mallas in a rented car. This conduct suggests that he was not suddenly provoked when he shot Mallas, but rather that he was completing a contemplated plan. The trial court’s decision not to instruct the jury on second degree murder was proper.

Finally, defendant contends that the sentences imposed are excessive and should be reduced. Defendant was sentenced to 40 years’ imprisonment for first degree murder and a concurrent term of 20 years’ imprisonment for attempted first degree murder. Defendant contends that the trial court failed to consider several mitigating factors, including his age, exemplary work record, and lack of prior criminal history.

The trial court is charged with the task of fashioning a sentence which strikes the appropriate balance between the protection of society and the rehabilitation of the defendant (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The court is not obliged to recite and assign value to each factor presented at a sentencing hearing. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 477 N.E.2d 1299; People v. Baker (1983), 114 Ill. App. 3d 803, 448 N.E.2d 631.) It is presumed that the court considered any mitigating evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, aff’d (1986), 115 Ill. 2d 184, 503 N.E.2d 331.) It is clear from the trial judge’s comments that he weighed and considered both the mitigating and aggravating factors. We will not substitute our judgment for that of the trial court. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

For the reasons stated above, we affirm the judgment and sentence of the circuit court.

Affirmed.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH T. WRIGHTNER, Defendant-Appellant.
    Third District
    No. 3—90—0727
    Opinion filed September 30, 1991.
    Drew Parker, of Parker & Halliday, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Ralph T. Wrightner appeals from his convictions for the offenses of attempted first degree murder, aggravated unlawful restraint, armed violence, and aggravated battery and from his five-year sentence on the aggravated battery conviction to be served concurrently with a 25-year sentence on the attempted murder conviction.

According to the testimony at defendant’s jury trial, on March 15, 1989, he followed his former wife and her 12-year-old daughter in his car, bumping their car once from the rear, and finally, when she stopped next to a Peoria police station and began honking her horn, he approached her car with a gun and fired at the driver’s window. The glass shattered, and the bullet struck the victim in the head, lodging just under her scalp and not penetrating her skull. After the shot was fired, the victim continued to honk the horn, and defendant stood by her car with a gun pointing at her head until a police officer arrived and persuaded him to drop his gun. He was then arrested.

Defendant was initially represented by private counsel, and later a different attorney took over defendant’s representation. After the second attorney withdrew, the public defender was appointed and decided to pursue an insanity defense. Psychiatric exams were scheduled with doctors for both the State and defendant. The changes in counsel and scheduling of psychiatric exams necessitated a series of delays in the date of trial.

The original date set for trial was June 5, 1989, and after many postponements, the trial court set August 13, 1990, as trial date. On August 2 and again on August 13 defendant indicated a desire for private counsel. Both times, the trial court stated that new counsel must be prepared for trial on August 13 as no more continuances would be granted. On August 13, the public defender was present and prepared for trial. Private counsel was also present, but, since he was not prepared for trial, he elected not to enter an appearance when defendant’s request for a continuance was denied.

The trial proceeded with the witnesses to the event, including the victim and her daughter, testifying as to what happened. Defendant testified about his mental state on the day of the crime, and his doctor presented a diagnosis of schizophrenia with paranoia and depression. The State’s doctor, on the other hand, found that defendant was depressed and had low self-esteem but no schizophrenia. The jury returned a verdict of guilty on all counts of the indictment.

Defendant’s first contention is that he was denied his constitutional right to have counsel of his choice when the trial court refused to allow a 60-day continuance for new counsel to prepare for trial. This issue is waived for purposes of appeal because it was not included in defendant’s post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, even if it were not waived, we would affirm the ruling of the trial court.

As defendant notes, the question of granting a continuance is a matter within the discretion of the trial court, and the only issue on review is whether the court abused that discretion. (People v. Capers (1989), 186 Ill. App. 3d 367, 542 N.E.2d 528.) Defendant’s right to counsel of his choice does not permit him to unreasonably interfere with the orderly process of judicial administration, and, therefore, the proper exercise of the court’s discretion requires a balancing of the public need for efficient administration of justice against the defendant’s fundamental right to be represented by counsel of his choice. People v. Holmes (1987), 155 Ill. App. 3d 562, 508 N.E.2d 405.

In the case before us, defendant had many months to acquire private counsel after the public defender was appointed in November of 1989. Considering the number of delays already granted to defendant, the trial judge here properly exercised his discretion when he refused to allow another delay after more than one year of repeated continuances.

Next, defendant contends that the five-year sentence for aggravated unlawful restraint should be vacated because that crime was a part of the same transaction that gave rise to the crime of attempted first degree murder. The State argues that defendant restrained his victim by continuing to point his gun at her after he shot her and that this act of restraint was separate from the act of shooting which was the basis of the attempted murder offense.

According to the testimony of the victim, after the driver’s window was shattered by the first shot from defendant’s gun, she attempted to climb into the back seat of her car in order to put the seat between herself and defendant. She could see defendant continuing to point the gun at her and then hitting the gun. Finally, she heard a police officer shout, “Freeze.” A short time later, defendant dropped the gun.

The officer testified that he had gotten into his police car behind the station when he heard a horn honking. He drove around the building to see what was causing the noise, and he heard a gunshot. He parked his car, got out of his car, and saw defendant pointing his gun at the driver of a stopped car. The officer pointed his gun at defendant and ordered him to drop his gun. After several warnings, defendant dropped the gun.

The trial court obviously concluded that defendant’s conduct in continuing to point his gun at the victim until the police officer arrived on the scene was sufficient to find that a separate crime had been committed. The facts here are similar to those in People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089, where defendant was convicted of both unlawful restraint and attempted murder. There the defendant had pinned the victim’s arms against her body and held her while a colleague choked her with a rope, and then the defendant sat on her legs while he and others stabbed her. The reviewing court there ruled that the acts of unlawful restraint were separate and distinct from those giving rise to the attempted murder charge, and that the conviction and sentence for both attempted murder and unlawful restraint should be affirmed.

Defendant relies upon a number of decisions involving the crime of rape to support his contention that here both the attempted murder and the unlawful restraint arose from the same act. One such case is People v. Jones (1983), 114 Ill. App. 3d 576, 449 N.E.2d 547, where the defendant ran after the victim, caught her and prevented her escape, dragged her into a park, and raped her. The reviewing court concluded that the unlawful restraint and rape were all a part of one criminal act. Accord People v. Bachman (1981), 92 Ill. App. 3d 419, 414 N.E.2d 1369; People v. Coleman (1980), 83 Ill. App. 3d 429, 403 N.E.2d 1266; contra People v. Leonhardt (1988), 173 Ill. App. 3d 314, 527 N.E.2d 562 (affirming a conviction for unlawful restraint in addition to a conviction for rape).

Rape cases present a special situation in that the physical restraint of the victim against her will is an essential element of the crime of rape, and a judgment of conviction may not be entered for lesser included offenses. (People v. Williams (1983), 115 Ill. App. 3d 276, 250 N.E.2d 851.) Murder or attempted murder by shooting with a gun, on the other hand, can be accomplished without physical restraint of the victim prior to the attack. Conviction for unlawful restraint may be proper where the restraint was an incidental act separate from the other offenses committed and required proof of different elements. People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362, appeal denied (1987), 113 Ill. 2d 584, 505 N.E.2d 360.

In the instant case, the unlawful restraint conviction was based upon separate acts occurring after the gunshot which gave rise to his conviction for attempted murder. Considering all the circumstances, we cannot say that the trial court erred in entering a judgment of conviction and sentence for unlawful restraint in this case.

We affirm the convictions and sentences entered in the circuit court of Peoria County.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ROBINSON, Defendant-Appellant.
    Third District
    No. 3—90—0582
    Opinion filed September 30, 1991.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Michael Robinson, was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. BGVs, par. 1401(b)(2)). The trial court sentenced him to six years’ imprisonment. The defendant appeals. We affirm.

At trial, undercover narcotics officer Patricia Jordan testified that on December 20, 1988, Officer Terry Paggi told her to expect a phone call from a suspected drug dealer. According to Jordan, the defendant called on an undercover phone, asked for “Pat,” and then asked what she needed. Jordan told the caller she needed a quarter ounce of cocaine. The caller told her it would not be a problem and stated he would call back the following day. The next day, the caller phoned Jordan and told her that a quarter ounce of cocaine would cost $400 and instructed her to meet him at Joliet Central High School at 5:30 p.m. That evening, Jordan met the defendant at the high school. The defendant then directed her to meet him at the F & W Tavern. Jordan went directly to the tavern and the defendant met her there 10 minutes later.

Approximately 6:30 p.m., the defendant made a phone call to a person he described as being his supplier. Shortly thereafter the defendant left the tavern, returned with the cocaine, and told Jordan he would give it to her outside. The defendant got into Jordan’s car and gave her a plastic bag containing seven grams of cocaine. Jordan then gave the defendant $396. After the transaction, the defendant got out of the car and Jordan drove away. According to Jordan, there was no conversation regarding the defendant getting her a hotel room.

Police officer Terry Paggi participated in the surveillance of the December 21 transaction. Paggi testified he saw Officer Jordan meet the defendant in the Joliet Central High School parking lot at 6:14 p.m. Robert Russell then drove up and parked next to the defendant’s car at 7:37 p.m. The defendant walked out of the tavern, got into Russell’s car, and three minutes later returned to the tavern. Shortly thereafter, the defendant and Jordan left the tavern and got into Jordan’s car. The defendant left a few minutes later.

Police officer Paul Kaupas participated in the surveillance of the transaction and in the defendant’s arrest the next day. Kaupas conducted a post-arrest interview of the defendant after advising him of his rights and obtaining a signed waiver. He testified the defendant told him he had known Robert Russell for 18 years. The defendant told Kaupas that Russell had asked him to deliver drugs in the past. Kaupas said the defendant admitted he was paid $45 for each delivery. The defendant also admitted to Kaupas he had been making drug deliveries for approximately one year. Kaupas testified an informant named “Doc” had set up the defendant’s introduction to Jordan.

Robert Russell testified he had known the defendant for approximately 18 years and described him as being one of his best friends. Russell, who was incarcerated at the time of the defendant’s trial, testified he was dealing drugs in December of 1988. According to Russell, the defendant contacted him by means of a pager on December 21, 1988. When Russell called the defendant, the defendant told him that “Doc” had called saying he had a lady in Chicago who wanted to pick up a quarter ounce of cocaine. Russell told the defendant to call back if he could get in touch with the woman. About an hour later, the defendant called back and said the woman was in Joliet. Russell agreed to bring the cocaine to the F & W Tavern. About 45 minutes later, Russell met the defendant in Russell’s car outside the tavern. According to Russell, the defendant gave him $396 and Russell gave the defendant a package. Russell then drove off. Russell did not recall the defendant mentioning anything regarding getting a hotel for the woman.

The defendant testified he got a call from “Doc” on December 20, 1988. He had known “Doc” since June of 1988 and had met him through Russell. According to the defendant, “Doc” asked if the defendant would meet his girlfriend and make arrangements to get her a hotel room in Joliet. The defendant testified that “Doc” told him the woman’s name was Pat, gave him her phone number, and asked him to call her.

The defendant made the phone call and explained to Pat that “Doc” had asked the defendant to meet her. Pat wanted the defendant to call back the next day to arrange the details of the meeting. According to the defendant, as he was about to hang up the phone, Pat asked him if he knew where she could get a quarter ounce of cocaine. The defendant said, “No,” and Pat asked if he knew how much a quarter ounce would cost. The defendant initially said he did not, but then told her it would cost between $500 and $600. The defendant also told Pat he would try to find out how much it would cost, though he had no intention of actually doing so. Pat again asked about getting cocaine, and the defendant told her he would not have called if he had known she wanted drugs. Pat then told the defendant to call her back the next day.

The defendant called Pat again at 2 or 3 p.m. the next day, and they agreed to meet at the Joliet High School at 5:30 p.m. The defendant told Pat he had unsuccessfully tried to find out how much a quarter ounce of cocaine would cost. He testified, however, he had made no such attempt.

When the defendant met Pat at the high school, she again asked if he had found out about the cocaine. After the defendant replied, “No,” Pat asked if he could call the dealer now. The defendant told Pat to go to the F & W Tavern and wait while he went home to make the call. He then called Robert Russell and asked him to come down and take care of “Doc’s” girlfriend. The defendant denied he called Russell to get drugs for Pat. However, he admitted he knew Russell was a drug dealer. He claimed to have made the call simply to get himself out of the situation. Upon finishing his conversation with Russell, the defendant went back to the F & W Tavern to wait with Pat.

After he arrived at the tavern, the defendant made a second phone call to Russell. Russell told the defendant that he would be leaving to go to the tavern in a few minutes. Sometime thereafter, the defendant heard Russell’s car and went outside to meet him. Russell did not want to go inside the tavern, so he handed the defendant a package and told him to give it to Pat. The defendant testified he foolishly took the package and brought it inside the tavern. Once he was inside the tavern, Pat asked him, “Did you get it?” The defendant and Pat then walked out to Pat’s car. Pat gave the defendant $396, and the defendant told her he would pay the missing $4 if Russell wanted it. He then asked if Pat wanted to go to the motel. She said, “No,” and drove away.

Russell stopped by the defendant’s house that evening to pick up the money. He then gave the defendant $45 so he could buy his daughter a Christmas present. The defendant denied the money was payment for his part in the delivery.

The defendant testified that when he was questioned after his arrest he just agreed to whatever his interrogators said. He denied he ever told Officer Kaupas that he was a drug dealer. On cross-examination, the defendant was pressed, over defense counsel’s objection, to give an opinion regarding the veracity of Officer Kaupas’ testimony. The defendant then said that Officer Kaupas was evidently lying.

The defendant was also asked about his employment. He testified that he had worked as a corrections officer for IVz years and as a sheriff’s deputy for 2V2 years prior to his arrest.

During closing arguments, the prosecuting attorney indicated that because the defendant was a Will County sheriff’s deputy, he had a duty to arrest Pat Jordan rather than sell her drugs. Additionally, despite several objections by the defense, which were sustained by the court, the prosecutor told the jury at various times in his closing argument that the jury had an opportunity to endorse the use of confidential informants in police investigations.

On appeal, the defendant first argues that he was denied a fair trial because the prosecutor asked him during cross-examination if Officer Kaupas had lied.

Asking a criminal defendant to give an opinion concerning the veracity of other witnesses is improper. (People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746; People v. McGee (1980), 88 Ill. App. 3d 447, 410 N.E.2d 641.) Although such tactics are improper, the error resulting therefrom may be harmless. People v. Gross (1979), 75 Ill. App. 3d 311, 393 N.E.2d 1308; People v. Spates (1978), 62 Ill. App. 3d 890, 379 N.E.2d 869.

We disapprove of the line of cross-examination used in the instant case. However, the evidence against the defendant was so overwhelming that the error resulting from the improper cross-examination was harmless.

The defendant’s second argument on appeal is that the prosecution’s closing argument denied him a fair trial. He contends the prosecutor misstated the law to the jury by indicating that because the defendant was a Will County sheriff’s deputy he had a duty to arrest Pat Jordan rather than sell her drugs. Additionally, the defendant claims the prosecutor misstated the function of the jury by telling the jurors that they had an opportunity to endorse the type of investigation used in this case.

The Illinois Supreme Court has noted that an assistant State’s Attorney is the representative of all of the people, including the defendant, and it is as much his duty to safeguard the rights of the defendant as those of any other citizen. (People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.) At the same time, he is expected to prosecute with earnestness and vigor. (People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.) Where statements made in closing argument serve no purpose except to inflame the jury, the statements constitute error. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) However, improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.

In the instant case, the evidence of guilt was so overwhelming that the error resulting from the prosecutorial indiscretion was harmless. Although the prosecutor was overzealous and overstepped the bounds of prudent behavior, his actions do not constitute reversible error.

Accordingly, we affirm the judgment of the circuit court of Will County.

Affirmed.

BARRY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WAYNE FREEMAN, Defendant-Appellant.
    Third District
    No. 3—90—0650
    Opinion filed September 30, 1991.

      Kim L. Kelley, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Terry Wayne Freeman was tried in a bench trial and convicted of the offense of unlawful use of weapons. He was sentenced to one year of probation. Defendant appeals from his conviction, challenging the trial court’s ruling on his motion to suppress and the court’s rejection of his defense theory that the weapon in question was in a broken-down state. We affirm.

Prior to the trial of this cause, the court heard defendant’s oral motion to suppress evidence against him based on an allegedly illegal search. According to the State’s evidence, the Peoria police department received a call around 1:30 a.m. on October 25, 1989, complaining of a prowler on the property of Dallas Dishman. Officer Gerald Ulrich responded to the call and interviewed Dishman and his son at the Dishman residence. Dishman described the suspect’s clothing and reported that the suspect had identified himself as “Freeman” before climbing over the fence to leave Dishman’s yard. Ulrich searched the area and found defendant wearing clothing as described by Dishman within two blocks of Dishman’s home. At first Ulrich did not recognize defendant, but after asking his name, Ulrich did recognize defendant as Terry Freeman. Ulrich testified that he knew from prior information that defendant was reputed to carry a gun. Ulrich said that after he told defendant to stop, he confronted him and conducted a pat-down search for Ulrich’s personal safety. The search revealed a loaded .22 caliber Jennings semi-automatic pistol in defendant’s inside jacket pocket. The gun appeared to Ulrich to be in working condition. The officer first removed the magazine and then the rear slide to remove rounds in the chamber. He then pocketed the gun until he returned to his squad car to run a check to determine whether the weapon was stolen. It was not. Ulrich later bagged, tagged and stored the gun in the department’s property room for future evidentiary purposes.

Defendant testified on his own behalf at the hearing to suppress. He said that he recognized Ulrich by sight and had been arrested by him for armed robbery more than a year before the instant arrest. He stated that he had been searched for weapons by Peoria police officers on two other occasions. Defendant also testified that on the night in question, when Dishman asked him for identity, defendant showed him a firearm owner’s identification card. He further testified that it was at that point that Dishman yelled to his son to call the police.

Based on the foregoing evidence, the trial court ruled that Officer Ulrich had sufficient cause to stop and to search defendant and, accordingly, denied defendant’s motion to suppress. When the trial resumed, defendant testified that he had the gun in his possession, but that it was disassembled into two pieces with the slide mechanism separate from the rest of the gun and that it was, as such, inoperable when Ulrich removed it from defendant’s pocket. Defendant demonstrated to the court how the gun could be disassembled and put back together. He further stated that he thought a 10-year-old child could disassemble and reassemble the pistol.

The State called Ulrich in rebuttal. He testified that the gun was in one piece when he removed it from defendant and denied that he had to put it back together. Although Ulrich had experience with firearms and opined that the weapon would be relatively simple to take apart, he stated that he had never disassembled or worked with a Jennings semi-automatic pistol.

At the close of all evidence and arguments of counsel, the court found that the State had borne its burden of proof for all elements of the offense charged and entered a finding of guilty. Defendant was convicted and subsequently sentenced, as aforesaid.

In this appeal, defendant contends that Officer Ulrich’s stop and search of defendant’s person pursuant to sections 107 — 14 and 108— 1.01 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, pars. 107 — 14, 108 — 1.01) were illegal because Ulrich failed to identify himself first as a police officer and because Ulrich had no reasonable basis for believing he was in danger.

The law applicable here was succinctly stated in People v. Fairman (1989), 182 Ill. App. 3d 497, 499, 538 N.E.2d 227, 229:

“On a motion to suppress evidence, the defendant has the burden to make a prima facie showing the evidence was obtained by an illegal search and seizure. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless it is determined to be manifestly erroneous. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.)”

The issue on appeal is whether the trial court erred in ruling that evidence seized as a result of Officer Ulrich’s investigation was not the fruit of an illegal stop. As in Fairman, the State contends that Ulrich conducted a reasonable investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and the Illinois codification of that case by section 107 — 14 of the Code of Criminal Procedure of 1963. As in Fairman, we agree.

Section 107 — 14 provides in relevant part as follows:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code ***.” Ill. Rev. Stat. 1989, ch. 38, par. 107-14.

Initially we reject defendant’s contention that Officer Ulrich had no basis for suspecting that defendant had committed an offense. Ulrich personally interviewed Dallas Dishman at Dishman’s home before he searched the area. From the information gleaned at this interview and by the match of defendant’s clothing to that described by Dishman, his direction of travel as reported by Dishman and his proximity to the property where Dishman reported having seen the prowler and the lateness of the hour, together with Ulrich’s knowledge of defendant’s reputation for carrying a gun once he encountered defendant and recognized him, Ulrich had sufficient, articulable facts from which to reasonably believe that defendant was the person described by Dishman and that he may have been carrying a concealed weapon or otherwise involved in criminal activity. There is no requirement, statutory or otherwise, that the officer conducting a stop-and-frisk specify a particular offense, so long as the officer reasonably may infer that a violation of any penal statute in Illinois has been or may be committed by the person detained. See Ill. Rev. Stat. 1989, ch. 38, pars. 102-15, 107-14.

Defendant’s further contention that Ulrich’s conduct in stopping him violated this section of the Code because he failed to identify himself before conducting the search is not well-taken. Defendant relies on People v. Vollrath (1981), 95 Ill. App. 3d 866, 420 N.E.2d 760, for this aspect of his argument. In Vollrath we affirmed the trial court’s grant of defendant’s motion to suppress a switchblade knife recovered from defendant during a stop-and-frisk. The circumstances in Vollrath, unlike here, demonstrated that the officer’s stop was unreasonable. In Vollrath, the officer approached defendant from behind and immediately frisked him without any prior communication. Under such circumstances, the defendant would have no way of knowing that he is not being victimized by the person conducting the search. Such a search violates the defendant’s right to be free from unreasonable searches.

By contrast, in this case, Ulrich, who was known by defendant from his prior contact with the police, told him to stop. Defendant complied. Then, Ulrich approached him and immediately conducted the frisk for weapons. Clearly, the facts here support the trial court’s finding that Ulrich’s stop was reasonable and in compliance with section 107 — 14. The section does not require that an officer formally introduce himself or orally announce that he is an officer of the peace. It requires only that the officer identify himself. This may be accomplished, as it was here, simply by visual recognition.

Similarly, we reject defendant’s argument that Officer Ulrich’s pat-down search violated section 108 — 1.01 of the Code. That section provides:

“When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.” (Ill. Rev. Stat. 1989, ch. 38, par. 108-1.01.)

Defendant seems to suggest that there was no reasonable justification for Ulrich to fear for his safety since defendant had not displayed a weapon to the complaining witness and Ulrich had back-up assistance from another officer, Officer Needham, before Ulrich conducted the pat-down. These facts do not undermine the fact that Ulrich had knowledge through official police channels that defendant had a reputation for carrying weapons. Such knowledge, coupled with the attending circumstances of the evening in question, was sufficient to place a reasonably prudent person in fear for his personal safety and justify a protective frisk. We hold, accordingly, that the trial court’s ruling denying defendant’s motion to suppress was not contrary to the manifest weight of the evidence.

Lastly, defendant contends that the trial court erred in crediting the police officers’ testimony over defendant’s on the question of whether the gun was in a broken-down state when it was removed from defendant’s person. The test on review to a challenge to the sufficiency of the evidence is as stated in People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277. The reviewing court must view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could find the elements of the offense beyond a reasonable doubt.

We have carefully reviewed the transcript of defendant’s trial and find that the elements of the unlawful use of weapons charge were adequately proved. The trial court determined that minor discrepancies in the testimony of Ulrich and Needham did not destroy their credibility. That determination is entitled to deference on review. It is apparent that the officers’ testimony was not rehearsed and that some insignificant details were not recalled in identical fashion by the two officers. However, the question about the state of the gun was not a matter about which there was any equivocation by the State’s witnesses. Under the circumstances, the court was not required to believe defendant’s testimony that the gun was in two pieces. Suffice it to say, the State met the standard of proof to the trial court’s satisfaction, and we find under the appropriate standard that defendant’s conviction should be sustained on review.

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

Affirmed.

STOUDER, P.J., and HAASE, J., concur.