author: JUSTICE SPITZ

text:
      In re L.M. III, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Larry Mikel II, Respondent-Appellant).—In re D.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Larry Mikel II, Respondent-Appellant).—In re C.L.P., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Larry Mikel II, Respondent-Appellant).—In re C.P. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Serena Mikel, Respondent-Appellant).
    Fourth District
    Nos. 4—90—0052 through 4—90—0054, 4—90—0139 cons.
    Opinion filed November 8, 1990.

      Robert E. Mclntire, Public Defender, of Danville, and Shari D. GogginWard, of Urbana, for appellant Larry Mikel II.
    Thomas M. Goodwin, of Dougherty, Hofmann & Goodwin, of Danville, for appellant Serena Mikel.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael D. Clary, of Danville, guardian ad litem.

   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by Serena Mikel and Larry Mikel II, respondent parents of L.M., D.M., and C.L.P., respondent minors, currently ages seven, eight, and nine, respectively, from the order of the circuit court of Vermilion County terminating parental rights. On appeal, several issues are raised. These issues include whether the trial court erred by (1) denying a motion to strike the petition to terminate parental rights on the ground the petition was not properly verified; (2) failing to order the State to furnish a bill of particulars; (3) denying a motion in limine to exclude approximately 250 pages of discovery furnished to respondent parents by the State three or four days prior to trial, which information was available to the State for some months previous thereto; and (4) allowing, over objections of respondent parents, Alan Jacobs, a clinical psychologist, to testify to his opinion of the parenting skills of respondent parents. Two additional issues raised by respondent parents are whether, as a matter of law, the trial court rendered deficient findings of unfitness regarding (1) the failure of respondent parents to make reasonable efforts to correct the conditions which were the basis for removing the children from their custody, and (2) the inability of the respondent parents to discharge parental responsibilities, which inability will extend beyond a reasonable time period; and whether the trial court’s findings of unfitness were contrary to the manifest weight of the evidence. The facts relevant to a review of these issues will be considered as each issue is discussed.

Initially, we will consider whether the trial court erred by denying a motion to strike the petition to terminate parental rights on the ground the petition was not properly verified. This issue is raised only by respondent mother (No. 4 — 90—0139), who contends her motion to strike the petition to terminate parental rights should have been granted because section 2 — 13 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(2)) requires that all such petitions shall be verified, although the statements therein may be made on information and belief. In this case, the petition to terminate parental rights set forth the allegations against respondent parents and was signed by the assistant State’s Attorney, whose signature was notarized using the proper form for notarizing a verified petition. See Ill. Rev. Stat. 1989, ch. 102, par. 206 — 105(c).

The petition in this case was adequately verified. The allegations in a verified pleading are sworn to under oath by the person signing the petition. (See In re Dragoo (1981), 96 Ill. App. 3d 1104, 1107, 422 N.E.2d 263, 265 (wherein the “supplemental petition began by stating: ‘Rebecca Jones, on oath state [sic] on information and belief ***’ ” and the signature of Jones was notarized similar to the jurat in the case at bar).) Under the circumstances of this case, the signator may verify the allegations on information and belief, which merely means the person has no personal knowledge of the facts alleged. This petition does not expressly state it is made under oath and does not recite that the allegations are made on information and belief. Nevertheless, the State contends the petition is properly verified. In People v. Audi (1979), 73 Ill. App. 3d 568, 392 N.E.2d 248, the form required for verification of a criminal information was discussed. In Audi, after noting that (1) the purpose of the oath requirement is to hold accountable to charges of perjury those who falsely swear, (2) there is no prescribed form for the verification, and (3) liability may arise regardless of the wording of the oath, the court upheld as proper the filing of an information signed by an assistant State’s Attorney underneath whose signature was a jurat signed by a notary simply reading, “Subscribed and sworn to before me this 19th day of December, 1977.” (Audi, 73 Ill. App. 3d at 569, 392 N.E.2d at 249.) Based on Audi, the verification here is sufficient. Audi, 73 Ill. App. 3d at 569, 392 N.E.2d at 249.

Furthermore, since the requirement of verification is a procedural formality designed as a deterrent to frivolous allegations, the failure to verify a petition does not divest the trial court of subject matter jurisdiction. See People v. Bradford (1975), 62 Ill. 2d 21, 338 N.E.2d 182; People v. Billow (1941), 377 Ill. 236, 36 N.E.2d 339; In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289; In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289. See also Dragoo, 96 Ill. App. 3d 1104, 422 N.E.2d 263.

The next issue to consider is whether the trial court erred by failing to order the State to furnish a bill of particulars. Respondents complain the petition for termination of parental rights merely alleges improprieties on the part of respondent parents by reciting subsections of the pertinent statute. (See Ill. Rev. Stat. 1989, ch. 40, par. 1501.) According to respondents, these allegations are not sufficiently precise as to afford respondent parents the opportunity to prepare a proper defense. The State contends respondent parents have waived this argument on appeal by failing to object to the trial court’s ruling, failing to object to the State’s disclosures pursuant to that ruling, and proceeding to trial. In her reply brief, respondent mother suggests that, after the trial court’s ruling, any future objections would have been futile. It is important to note that in their original briefs, respondent parents do not contend the petition failed to state a cause of action. Had this been the issue, it could not have been waived. (In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43.) Respondent father does attempt to make this argument in his reply brief, however. Nevertheless, arguments raised for the first time in a reply brief are waived (see 107 Ill. 2d R. 341(g)) and need not be considered by this court. Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 331 N.E.2d 365.

In any event, any error which may have occurred is harmless. Respondent parents proceeded to trial and nowhere do they demonstrate how they were surprised or prejudiced by the evidence presented by the State.

Except as otherwise provided by statute, the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101 et seq.) applies to all proceedings in the circuit courts. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 108.) In In re Harpman (1985), 134 Ill. App. 3d 393, 480 N.E.2d 873, this court stated that proceedings pursuant to a petition for adjudication of wardship are civil in nature. While the State does not assert there is no requirement that the petition in this case conform to rules of civil pleading practice, the State argues respondent parents’ request was not really a request for a bill of particulars, but was instead a request for discovery to which respondent parents were not entitled. Certainly this is true in criminal cases cited by the State, including People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999. However, this court need not decide whether such discovery is available in termination of parental rights cases.

Section 2 — 607 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 607) provides that a party who is to respond to a pleading may file a demand for a bill of particulars if the allegations in the pleading “are so wanting in details that the responding party should be entitled to a bill of particulars.” A passage of In re Walton (1979), 79 Ill. App. 3d 485, 398 N.E.2d 409, may be read as suggesting that the statute allowing for a demand for bill of particulars pertains to this type of case.

If the pleading contains facts which reasonably inform the opposing party of the claim that party is called upon to meet, the pleading is not bad in substance. (Harpman, 134 Ill. App. 3d 393, 480 N.E.2d 873.) In In re G.W.S. (1990), 196 Ill. App. 3d 107, 109, 553 N.E.2d 85, 87, this court discussed sufficiency of pleadings in a termination of parental rights case and decided “[t]he requirement of pleading with specificity does not mandate there be more than a setting forth of the specific statutory grounds of unfitness.” In Dragoo, cited in CUES., this court stated:

“We did not intend to indicate [In re Westland (1976), 48 Ill. App. 3d 172, 362 N.E.2d 1153,] that pleading with particularity required more than setting forth the specific statutory grounds of unfitness. We did not intend to require allegation of the particular acts or omissions which together constituted the specified statutory grounds of unfitness.” (Dragoo, 96 Ill. App. 3d at 1107, 422 N.E.2d at 265.)

Therefore, based on Dragoo and G.W.S., the petition in this case sufficiently apprises the respondent parents of the charges which must be defended.

Two cases cited by respondent parents are clearly distinguishable. In re Westland (1976), 48 Ill. App. 3d 172, 362 N.E.2d 1153, involved a complete failure to allege any of the grounds listed in the Adoption Act (see Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.) and this court stated that allegations sufficient to find dependency are not sufficient for unfitness. Similarly, in B.K., instead of properly alleging unfitness, the petition alleged the minor to be neglected. In both cases, the court decided the petition failed to state a cause of action.

The third issue is whether the trial court erred by denying a motion in limine to exclude approximately 250 pages of discovery furnished to respondent parents by the State three or four days prior to trial, given this information was available to the State for some months earlier. Although both parents filed motions in the trial court in an attempt to preclude the State from using materials disclosed in discovery only a few days before trial began, on appeal only respondent father raises this issue (Nos. 4 — 90—0052, 4 — 90—0053, 4 — 90— 0054). However, his brief does not explain how he was prejudiced by the trial court’s ruling. Respondent father did not ask for a continuance of the hearing so as to allow his counsel to become more familiar with the material. And the hearing was conducted intermittently, with several days between some of the court appearances. There seems to have been time for counsel to become familiar with it. So, although the State could have been more diligent in disclosing these matters, reversal is not warranted. After all, the sanctions imposed are a matter of discretion with the trial court.

The State persuasively argues the respondent father waived this issue by failing to object at trial to the admission of any of this evidence. In Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031,1040, 522 N.E.2d 1341,1347-48, the court stated:

“Generally, an objection to the admission of evidence must be made when the evidence is offered. (People v. Trefonas (1956), 9 Ill. 2d 92, 98, 136 N.E.2d 817.) Here, counsel not only failed to object when the ‘Letter Agreement’ was offered into evidence, but he expressly acquiesced in its publication to the jury. Under these circumstances, defendants have not preserved the error of which they have complained on appeal. Moreover, we do not believe that the requirement of a contemporaneous objection was obviated by the denial of defendants’ pretrial motion in limine.
A motion in limine merely presents an issue of admissibility of evidence which is likely to arise at trial in a pretrial setting. As such, the order, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial. (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 5, 422 N.E.2d 241.) ‘When a motion in limine is made, the trial judge must exercise his discretion in granting the motion or in denying it, thereby leaving to the unsuccessful movant the procedure of specially objecting to the evidence when it is offered at trial.’ People v. McClain (1978), 60 Ill. App. 3d 320, 324, 376 N.E.2d 774, citing Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 195, 359 N.E.2d 752.
This procedure would not have required counsel to object in front of the jury each time reference was made to the ‘Letter Agreement’ at trial. Rather, counsel could have objected once, outside the presence of the jury, and asked for a continuing objection. (See Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 6, 422 N.E.2d 241.) No such objection was made in the case at bar.”

We agree that respondent father, by not making an objection at trial, failed to properly preserve this issue for review.

Moreover, we disagree with respondent father on the merits. In Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435, a case cited by respondent father, the court noted that the purpose of discovery sanctions is not merely to penalize the party who is less than diligent in complying with discovery procedures, but instead to accomplish the objectives of discovery. Savitch is, however, distinguishable on its facts. In Savitch, the sanction imposed was awarding attorney fees and not dismissal of the cause of action. In this case, respondent parents sought only to have the petition dismissed which the trial court could reasonably find to be an excessive penalty. Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460, the only other case cited by respondent father in his appellant brief, involved the striking of a defendant’s answer. However, in Buehler, the defendant, Ford Motor Company, provided false answers to interrogatories under oath and failed to produce other requested matters. The circumstances in this case are not so egregious.

Had respondent father made a proper request here, it is conceivable the trial court might have considered granting a continuance or awarding attorney fees and costs on the presentation of a proper motion. But the trial court’s denial of the request to dismiss the petition was certainly not an abuse of discretion.

On the other hand, the State’s attempt to justify the late disclosure is inadequate. Even recognizing the Illinois Department of Children and Family Services (DCFS) is not an investigative governmental body such that the information possessed by DCFS is not imputed to the State (People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850; People v. Visgar (1983), 120 Ill. App. 3d 584, 457 N.E.2d 1343), this does not justify the failure of the State to request the information be produced so as to be able to supply it to respondents at a reasonable time before trial. Nevertheless, the policy stated in In re Henry (1988), 175 Ill. App. 3d 778, 789, 530 N.E.2d 571, 578, is undoubtedly correct:

“It is apparent from this statement and respondent’s arguments below that respondent is less interested in the goal of disclosure than with strict adherence to a permissible, albeit discretionary, discovery sanction for nondisclosure. Such a position reduces the nature of these proceedings to a game, a contest between the attorneys. Terminating parental rights is a grave and serious matter. If the State’s case in such a proceeding should fail, it should do so because the State cannot prove parental unfitness, not because testimony which might otherwise be relevant is barred for nondisclosure. Were the latter scenario to prevail, the only clear losers in such a case would be the innocent children involved.”

Objections were made at trial to some of this testimony, but not on the ground that the material was not properly disclosed. Most of the objections concerned the fact the evidence was irrelevant because it pertained to matters arising after the filing of the petition. Respondent father argues the trial court improperly refused to exclude as irrelevant evidence of occurrences arising after the date of the filing of the petition for termination of parental rights. However, this court has already determined that matters occurring right up to the date of the hearing on termination of parental rights may properly be considered. In re N.H. (1988), 175 Ill. App. 3d 343, 529 N.E.2d 1115.

The next question is whether the trial court erred by allowing, over objections of respondent parents, Alan Jacobs, a clinical psychologist, to testify to his opinion of the parenting skills of respondent parents.

Jacobs had been practicing for 20 years. He has a doctorate from Brigham Young University. He saw each of the respondent parents for three individual consultation sessions. The first two sessions were to gather information and the third session was “to put together my thinking and go over issues with them.”

As to respondent mother, Jacobs interviewed her to do a personality assessment for the purpose of offering an opinion as to her parenting skills. Jacobs had previously examined persons to assess parenting skills and the ability to develop those skills. These examinations were done at the request of the DCFS. He testified to such matters in over a dozen other cases. In addition to testifying concerning the examination, he testified to his opinion.

In his training, Jacobs has had courses on child development wherein issues of nurturing were stressed. In his practice, he has been involved in many cases of therapy and evaluation involving children, parents, and the general issue of child care. He has received from DCFS reprints of journal articles and reads additional journals.

Prior to further direct examination, respondents’ respective counsel were allowed to cross-examine Jacobs concerning his qualifications. On cross-examination, Jacobs testified he recalled two of the other cases he had testified in involved issues of overt physical violence to a child, three or four involved sexual violence, and the rest concerned psychological abuse and neglect. His involvement was limited to evaluating the parent-child relationship. He was not involved in the counseling.

In evaluating adults, Jacobs commonly used the Minnesota Multiphasic Personality Inventory (MMPI). The test requires at least the ability to read and write at a sixth-grade level. However, the primary vehicle for the evaluation was a face-to-face interview following questions of personal history, history of the marriage, and history with the child. The MMPI gives a description of personality variables, scoring on 10 clinical issues of pathology as well as on three validity scales, according to Jacobs. Jacobs noted there are hundreds of psychological tests that may be used, but he usually uses the MMPI, although he may also use an intelligence test if he has concern about the person’s level of intelligence. In this case, he did not use the MMPI.

Jacobs has two children and has aided in their parenting and shared in that experience. In the past, a large part of his practice has been in marriage counseling, but it currently is not. Issues of handling the children are often brought up in marriage counseling, and if this is a serious issue driving a wedge between a husband and a wife, then the children will become involved so that the marriage counseling is transformed to family counseling. Family counseling includes consideration of parenting for the children and the parenting ability or responsibilities inasmuch as such counseling involves interaction with the children. With regard to his experience in child psychology, the first six months of his clinical practice were on a children’s unit of a mental hospital and he had a number of courses specifically relating to child development and child-parent relationships. During his private practice, he counseled with children on child psychology matters.

On further direct examination, Jacobs did not use the MMPI in this case because “there were problems with compliance and getting the respondents in.” Jacobs felt the respondent father did not meet the educational, intellectual criteria for the test. He felt that respondent mother’s capability of delivering a meaningful test result was borderline. He also believed that after three hours of contact, he had a reasonably clear opinion of the respondents. After the first appointment, which was in April or May 1988, there was a four-month period during which the remaining appointments were not secured even though both respondents were informed of the need for additional follow-up. Jacobs was not sure what the reasons were for the delays.

As to respondent mother, Jacobs opined that she lacked the maturity and personal responsibility skills necessary to provide safe and healthy care for children. Jacobs was specifically referring to respondent mother’s ability to think of others, to deny her own needs and wants in favor of those of another person, to look at issues objectively, to see her own faults and make corrections, and to desire to do well at given tasks. Respondent mother denied a problem in the parenting relationship and tended to displace blame onto others. She viewed the evaluation process as antagonizing her, and she did not wish to participate. She seemed more interested in denying and refuting charges against her rather than aiding Jacobs in developing a picture of her home situation and how she had performed as a parent in the past. Although Jacobs suggested three or four weekly visits to conclude the evaluation process, respondent mother did not follow up with that suggestion, and it was Jacobs’ impression that DCFS had to pressure her to continue the evaluation process. He also noted she was charged with neglecting one child, who required hospitalization because the utilities were disconnected during the wintertime, and charges of the children running outside improperly dressed in cold weather. She responded that the utilities had been disconnected and it was the utility company’s fault her child became ill. Jacobs did not view that as a responsible attitude. He also noted she was quick to become emotionally aroused and she had “borderline to dull intellectual functioning.”

His last visit with her was in September 1988, and he had not seen her since. Jacobs believed the characterological issues raised concerning respondent mother are not likely to change in the near future. According to Jacobs, a “characterological issue” is a repetitive pattern of behavior.

Jacobs also opined that respondent father was “deficited intellectually” and was probably in the mild range of mental retardation. According to Jacobs, respondent father’s ability to grasp and understand many normal issues was very tenuous. Respondent father, in Jacobs’ opinion, had a problem with responsibility and “would not likely be able to administer properly to the children’s needs when in conflict with his own.” Jacobs also applied the label “borderline personality disorder” to respondent father. Jacobs defined this as a diagnostic category applied to “people who have difficulty obeying the laws of the land; people who have difficulty in most of the important relationships in their life, working relationships, marital relationships, friendship relationships; people who have a tendency to abuse mind-altering substances, alcohol and drugs.” While respondent mother did not appear to appreciate the seriousness of what Jacobs was trying to do, respondent father was very quiet. Although he volunteered very little, he did answer questions more willingly.

On cross-examination, Jacobs admitted that prior to meeting with respondent parents, he was provided with a copy of the DCFS report, which included a narration of the allegations of neglect. When asked whether he accepted the narrative as being true, Jacobs responded that he accepted the narrative as a list of charges. One of the tests he had respondent mother perform was to count backwards from 100 by sevens. These tests were to draw some conclusions regarding her intellectual and mental judgment. Jacobs found respondent mother to be unsophisticated intellectually, which he defines as “functioning somewhere below normal.” Jacobs was advised by respondent mother that she had been involved in parenting classes and marriage counseling. He noted that counseling is not always required for a person to grow up emotionally and in most cases this can be done on his or her own. With regard to Jacobs’ assessment of respondent mother as lacking personal responsibility, he offered no opinion about her dangerousness. He did not feel there were indications of dangerousness. He could not say she was dangerous in an overt manner.

Whether respondent mother’s going to marriage counseling reflected an attempt to take responsibility for her life depends on her attitude. Jacobs admitted it would be much clearer that a person who did not go to marriage counseling or parenting classes was being irresponsible.

In two separate instances, Jacobs recalls respondent mother blaming others for her problem. In the first instance she stated “I’m not crazy. I don’t need to be here.” From this statement he inferred she believed she was being unnecessarily subjected to something against her will. She also stated the only reason this matter ever came to the attention of DCFS was because her husband’s stepfather was angry with her and filed false charges. Jacobs indicated there was additional information as well dealing with the issue of responsibility. Respondent mother indicated to him that she did the cooking and provided food for the children. Jacobs admitted this was one element of proper caring for the children. He discussed with her the provision of clothing for the children with regard to the assertion the children had been allowed to leave the house improperly clothed, rather than in a more general sense, although he admitted proper clothing is an issue for parenting. Jacobs explained he was looking at specific issues of responsibility, well-being, and judgment which he felt were “significantly ongoing to be a threat to the children.” That is not to say other things were not being done right. Jacobs agreed that his assessment was only a partial opinion on respondent mother’s ability to provide for the children in that it did not touch on all the issues that it could have.

Jacobs discussed with respondent father the allegations of physical abuse and neglect referred to in the DCFS report. A good portion of the three hours was spent gaining general history as well as a mental status. Jacobs did not recall discussing respondent father’s personal relationship with any friend. He did discuss employment history and any problems he might have with his jobs. They also discussed his relationship with his wife. Jacobs’ report indicates respondent father had completed tenth grade by age 18 and also indicated he had been in special education classes. Respondent father had difficulty reading and writing and relied on his wife to pay bills and read the mail. The report indicated respondent father offered little information on his own. When asked whether respondent father had a problem expressing himself, Jacobs explained respondent father did not speak with a great deal of sophistication grammatically or in terms of vocabulary. Jacobs further explained that this does not mean respondent father is a quiet person, because persons who are quiet in this type of interview situation are not quiet other places. Jacobs had to extract information from respondent father through questioning, rather than respondent father volunteering the information. Jacobs stated this cannot generally be attributed to his mild retardation.

Knowing that respondent father had completed parenting classes would not alter Jacobs’ opinion. Jacobs did not find anything to support the notion that respondent father was actively violent. Jacobs expressed concern about the neglect, but agreed his opinion in that regard could be changed through counseling. He would be less concerned if there were reports from counseling agencies indicating significant improvement in attitudes about responsibility and care for the children.

Jacobs discussed living arrangements with respondent father. The respondents were living in a trailer at the time of the allegations and at the time of the interview. Jacobs did not recall asking respondent father questions relating to providing housing, clothing, or food for the children as being part of his role as a parent. Nevertheless, Jacobs believed his opinion was accurate. Jacobs felt that those questions are so obvious virtually no one would deny these provisions are part of the parenting role. He was concerned with the reality of the situation.

Jacobs’ report stated: “[Respondent father] indicated no intention of changing his personal habits with the children, considering himself to be above blame initially. And that together with his limited intellectual capability I feel make him a very questionable candidate to regain parental rights.” Jacobs stated respondent father blamed others just once. However, with regard to respondent father there are a number of concerns in addition to maturation, including substance abuse, vocational responsibility, and the ability to understand intellectually. Jacobs admitted these problems could be alleviated or partially alleviated through counseling.

The respondent parents’ challenge to the testimony of Jacobs encompasses two areas. Both respondent parents contend Jacobs was not qualified to tender an opinion as an expert. Respondent father also argues that the foundation for the opinion offered by Jacobs was inadequate. Respondent mother’s brief might be construed to make the same argument, but merely concludes “his opinion was nothing more than baseless conjecture and gossip,” without citing any legal precedent, which ought not be elevated to the level of legal argument.

In Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1051, 532 N.E.2d 1091, 1101-02, aff’d in relevant part (1990), 138 Ill. 2d 404, this court stated:

“An expert witness is a person whose special knowledge, skill, experience, training, or education is determined by the trial court to qualify said witness to testify to an opinion, based upon the witness’s experience, because the opinion will aid the trier of fact in resolving a question which is beyond the understanding or competence of persons of common experience. Whether the person qualifies as an expert is a matter resting in the sound discretion of the trial court. Craft v. Acord (1974), 20 Ill. App. 3d 231, 313 N.E.2d 515.
* * *
Certainly, a witness may not guess or state an opinion which is based merely on speculation or conjecture. (Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638.) However, the expert may give an opinion without disclosing the facts which underlie or support his opinion and it is the burden of the opposing party to bring out those facts on cross-examination. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117,102 S. Ct. 140.)”

Also pointed out in Loitz is the principle that the credibility of the expert and the weight to be assigned to the expert’s opinion are matters to be decided by the trier of fact in light of the expert’s credentials and the bases for the expert’s opinions. Loitz, 177 Ill. App. 3d at 1054, 532 N.E.2d at 1103.

Considering the testimony regarding the credentials of this witness, the trial court committed no abuse of discretion in allowing Jacobs to testify as an expert. Furthermore, the trial judge could rely on Jacobs’ testimony if the trial judge found the witness to be credible, in spite of the deficiencies in his testimony, which respondent father claims exist. Nor does the fact the expert expressed an opinion about an ultimate issue require reversal since the expert may so opine. Perschall v. Metropolitan Life Insurance Co. (1983), 113 Ill. App. 3d 233, 446 N.E.2d 570.

The remaining two issues may be considered together. These issues are whether, as a matter of law, the trial court rendered deficient findings of unfitness regarding (1) the failure of respondent parents to make reasonable efforts to correct the conditions which were the basis for removing the children from their custody; and (2) the inability of the respondent parents to discharge parental responsibilities, which inability will extend beyond a reasonable time period; and, last, whether the trial court’s findings of unfitness were contrary to the manifest weight of the evidence. Respondent father attempts to raise the question of the sufficiency of the evidence by attacking the trial court’s denial of his motion for a judgment at the close of the State’s case in chief. The State correctly points out that by producing evidence following the denial of the motion, respondent father has waived the issue for purposes of appeal. (Fear v. Smith (1989), 184 Ill. App. 3d 51, 539 N.E.2d 1297; Ill. Rev. Stat. 1989, ch. 110, par. 2-1110.) The obvious reason for that result is the trial court’s ruling on the motion becomes merged into the judgment.

As the issue is raised by respondent father, it is waived. However, respondent mother properly raises the issue by asking this court to consider whether the judgment is against the manifest weight of the evidence, without reference to whether a judgment should have entered at the close of the State’s case.

As respondent mother points out, the trial court found respondent parents unfit based on five statutory grounds. Respondent mother challenges two of those findings as deficient as a matter of law. Obviously, if any of the remaining three grounds is sufficiently supported by the evidence to warrant finding respondent parents unfit, the respondent mother’s challenge to the legal sufficiency of two of the judge’s findings need not be considered.

In In re R.B.W. (1989), 192 Ill. App. 3d 477, 499-500, 548 N.E.2d 1085, 1099-1100, this court recited the appropriate standard for reviewing termination of parental rights cases:

“Parental rights and responsibilities are matters of deep human importance and will not be lightly terminated. Parental rights may be terminated if the parent is adjudicated unfit for one or more of the grounds listed in section 1(D) of the Adoption Act. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D); Ill. Rev. Stat. 1987, ch. 37, par. 802 — 29(3); In re Paul (1984), 101 Ill. 2d 345, 461 N.E.2d 983.) In order for the trial court to find parental unfitness, there must be clear and convincing evidence to support such a finding. (Paul, 101 Ill. 2d 345, 461 N.E.2d 983.) However, the question on review is whether the finding of the trial court is against the manifest weight of the evidence. (In re Boolman (1986), 141 Ill. App. 3d 508, 491 N.E.2d 1.) It is not the function of the reviewing court to reweigh the evidence or reassess the credibility of the witnesses. Great deference is given to the findings of the trial court since the judge had the opportunity to view the witnesses and evaluate the testimony. (In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.) For the finding to be against the manifest weight of the evidence, the opposite result must be clearly evident from the review of the evidence. Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.”

Because of the length and complexity of the testimony, and as the parties are familiar with the facts of this case, we need not recite the evidence and findings of the trial court in detail. The parties may, however, be assured this court thoroughly reviewed the record in considering the propriety of those findings.

The case at bar went on for several years. During that time, respondent parents moved many times and often failed to maintain a home with proper utilities and which was clean. They blamed their problem on “poverty.” Respondent mother is not working and respondent father had a job at the time of the last hearing below, the pay from which, along with supplemental security income, provided enough for respondent parents to live on. While respondent parents testified they could afford to properly care for the children, the trial court was not required to accept that conclusion. In addition, no one other than the parents testified that any progress in parenting skills had been made by these parents on a consistent basis.

Therefore, although not conceding the point, even assuming for the sake of argument that the two findings of the trial court are legally deficient, a conclusion opposite to the finding the respondent parents have failed to make reasonable progress toward the return of the minors within 12 months after the adjudication of neglect is not clearly evident from a review of the evidence.

For the foregoing reasons, the order of the circuit court of Vermilion County terminating the parental rights of respondent parents is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKET LEE BOND, Defendant-Appellant.
    Fourth District
    No. 4—89—0969
    Opinion filed November 16, 1990.

      Sheldon L. Banks, of Chicago, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Jackey Lee Bond, was convicted by a jury of unlawful possession of a controlled substance with intent to deliver more than 100 but less than 400 grams of a substance containing cocaine (Ill. Rev. Stat., 1988 Supp., ch. 56½, pars. 1401(b)(11), 1401.2(1)), a Class X felony, and was sentenced to 30 years’ imprisonment, and fined $51,600. Defendant appeals, arguing (1) the evidence was insufficient to prove his guilt, (2) the trial court erred in denying defendant’s request for a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and (3) the sentence imposed is an abuse of discretion.

We affirm.

On May 15, 1989, Officer David Slade of the Decatur police department presented a complaint for search warrant which contained the sworn statements of himself and an assumed-name affiant (identified as John Doe). The complaint implicated defendant in drug activities at the upstairs apartment at 1452 East Prairie Street in Decatur. Based on this complaint, the search warrant issued both for defendant’s person and for that residence.

That same evening, police officers took up positions around 1452 East Prairie Street. Shortly after 6:30 p.m., two persons, later identified as defendant and Lisa Brown, left the house. Defendant locked the door to the residence and proceeded to a car parked in an adjacent alley. The police then approached the vehicle and apprehended defendant and Brown. The police searched the car and recovered a small packet from the passenger side of the car, later identified as 13.7 grams of cocaine. A search of the upstairs apartment of the residence resulted in the confiscation of two bottles of Inositol, a substance used to dilute cocaine, $406.41 in cash, assorted drug paraphernalia, Jackey Bond’s driver’s license — which had thereon a powdery residue later identified as cocaine — and over 100 grams of a white powdery substance also later identified as cocaine. All of this evidence was subsequently introduced at defendant’s trial.

Defendant’s first argument is that he could not be convicted for possession with intent to deliver because the State failed to prove that he had immediate and exclusive control over the contraband or over the place where the contraband was seized. Possession is a question of fact to be determined by a jury, and its determination will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 471, 414 N.E.2d 1072, 1076.) In this case, the State clearly proved that defendant had constructive possession over the premises where the narcotics were found. (See People v. Morrison (1988), 178 Ill. App. 3d 76, 90, 532 N.E.2d 1077, 1086-87; Ortiz, 91 Ill. App. 3d at 471-72, 414 N.E.2d at 1076.) The apartment in question contained no food, no clothes, no pots or pans, and little furniture. As the State argues, this was no one’s residence; instead, it was a “drug house,” premises used by defendant for his business of packaging and selling cocaine.

Other evidence linking defendant to this apartment was the key found in defendant’s car which unlocked the apartment’s door. Also, a triple-beam scale within the apartment, which was apparently used to weigh drugs, was set at 13.7 grams; this is the precise weight of the contents of a bag of cocaine found in defendant’s car at the time of his arrest. Further, defendant’s fingerprint was found on one of the bottles of Inositol left on a shelf above the kitchen sink.

A jury’s determination of guilt will not be disturbed on appeal if a court of review, after viewing the evidence in a light most favorable to the prosecution, concludes that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (See People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) We conclude that this standard has been easily met on the evidence in this case.

Defendant next argues that he is entitled to a hearing to question the legitimacy of the search warrant used by the police officers in connection with his arrest. In Franks, the United States Supreme Court held that a defendant is entitled to challenge the veracity of a search warrant complaint upon making a substantial preliminary showing of falsity therein. (Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684-85.) However, not every aggrieved defendant may seek to exclude evidence obtained allegedly in violation of the fourth amendment because that amendment’s constitutional safeguards are personal protections that may not be vicariously asserted. (Alderman v. United States (1969), 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187, 89 S. Ct. 961, 966-67 (denying standing to coconspirators and codefendants); see also People v. McNeil (1972), 53 Ill. 2d 187, 192, 290 N.E.2d 602, 605 (adopting Alderman in Illinois).) Specifically, “defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.” (United States v. Salvucci (1980), 448 U.S. 83, 85, 65 L. Ed. 2d 619, 623, 100 S. Ct. 2547, 2549 (overruling the automatic standing rule of Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725); see also McNeil, 53 Ill. 2d at 192, 290 N.E.2d at 605 (requiring a defendant to establish the manner in which his constitutional rights have been violated before permitting him to challenge the validity of a search and seizure).) The State argued in the trial court and in this court that defendant has no standing to raise the Franks issue. Therefore, the first matter we must address is the question of standing.

Standing is met when (1) the proponent of a particular legal right alleges an injury in fact, and (2) the proponent asserts his own legal rights and interests, rather than basing his claim for relief upon the rights of third parties. (Rakas v. Illinois (1978), 439 U.S. 128, 139, 58 L. Ed. 2d 387, 398, 99 S. Ct. 421, 428.) In People v. Keller (1982), 93 Ill. 2d 432, 440, 444 N.E.2d 118, 122, the supreme court concluded that defendants, who made no showing that they were legitimately on the premises of a garage that was searched, lacked standing to assert a violation of the fourth amendment.

In the present case, defendant has repeatedly asserted that he has no legitimate interest in or connection with the residence that was searched. Without a legitimate interest in the residence searched, defendant cannot challenge the sufficiency of the search warrant (Morrison, 178 Ill. App. 3d at 82-83, 532 N.E.2d at 1081-82), and accordingly had no standing to seek a Franks hearing.

Last, defendant argues that the trial court abused its discretion in sentencing him to 30 years in prison. The trial court’s determination of an appropriate sentence should be upheld unless there has been an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The offense of which defendant was convicted carries with it a possible range of imprisonment between 9 and 40 years. (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1401.2.) Because defendant had been convicted of a Class X felony within 10 years of this most recent offense, he was eligible for an extended sentence of between 30 to 60 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5— 3.2(b)(1), 1005 — 8—2(a)(2).) We note that defendant has an extensive record of juvenile delinquency, convictions for criminal damage to property (1979), unlawful use of weapons (1980), disorderly conduct (1980), felony possession of cannabis (1983), battery (1983), possession of cannabis (1987), and attempt (murder) combined with unlawful use of firearms by a felon (1987). Defendant was free on an appeal bond regarding his seven- and three-year sentences for those last convictions due to $35,000 in cash posted in January 1988. On this record, the court could have imposed an extended-term sentence of 60 years in prison. See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(b)(1), 1005 — 8—2(a)(2).

We also note the blatant violation of the drug laws of this State as shown in this record. We quote approvingly the following observation: “If narcotics traffic is a social and health hazard, then every narcotics dealer is a danger to society ***.” Hansford v. United States (D.C. Cir. 1965), 353 F.2d 858, 860.

Our review of the record in this case discloses that the trial court considered all of the appropriate factors, and we have no reason to question the exercise of its discretion in imposing a 30-year sentence on these facts.

Affirmed.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE GREEN

text:
    SHEILA RODMAKER, Indiv. and on Behalf of all Others Similarly Situated, Plaintiff-Appellee, v. JOHNS HOLDING COMPANY, INC., formerly d/b/a Credit Bureau of Decatur, et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0194
    Opinion filed November 26, 1990.

      Thom Moss and Darrell E. Statzer, Jr., both of Wilson, Dyar, Moss & Statzer, of Decatur, for appellants.
    Phillip M. Kirby, of Mason City, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Section 2 — 801 of the Civil Practice Law (Law) provides:

“Prerequisites for the maintenance of a class action. An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
* * *
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2 — 801.

This appeal is from an order of the circuit court of Macon County entered on January 8, 1990, denying a motion to dismiss a complaint and certifying the case as a class action. Pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), we granted leave to appeal after the circuit court entered an order on January 19, 1990, making the findings required by that rule. That order identified “the questions of law involved” (107 Ill. 2d R. 308) as:

“(a) Whether the Court’s Order of January 8, 1990 is sufficient pursuant to 110 Ill. Rev. Stat., Sec. 2 — 801.
(b) Whether the Court abused its discretion in finding that in the instant case the predominant questions of the validity of the notice and the right to the penalty ‘in this cause’ support[ ] certification and that this issue is not negated by Defendants’ admission of well pleaded facts in its Motion to Dismiss.” (Emphasis added.)

We hold the court’s order is sufficient to meet the requirements of section 2 — 801 of the Law, but the questions of the validity of notice and right to penalty, which we will explain, are not sufficiently “predominant” to justify the certification of the cause as a class action.

The litigation began on September 7, 1989, when plaintiff Sheila Rodmaker, on her own behalf and that of all others similarly situated, filed a complaint against defendants Johns Holding Company and its successor in interest CSC Credit Services, Inc., in the circuit court of Macon County. The complaint alleged that, within the previous five years, defendants wrongfully served on plaintiff, and others, a “Notice of Intent to Assign Wages” that did not conform to section 2.2 of the Illinois Wage Assignment Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 39.2b). The complaint requested the court declare the proceeding a class action pursuant to section 2 — 801 of the Law and certify all the persons who have received similarly improper notices of wage assignments in the preceding five years as members of the class. The complaint alleged compliance with each of the stated prerequisites of section 2 — 801 of the Law.

At all times pertinent, section 2 of the Act prohibited making a demand on an employer for assigned wages of a wage earner unless certain requirements have been met including timely service on the employee of “a notice of intention to make the demand” (Ill. Rev. Stat. 1987, ch. 48, par. 39.2(3)). During this period of time, section 2.2 of the Act has set forth the form of the notice required by section 2 (Ill. Rev. Stat. 1987, ch. 48, par. 39.2b). Similarly, at all significant times, section 4.3(1) of the Act has provided that service of a notice on an employee “which does not conform with the requirements of [section 2.2 of the Act]” shall subject the server of the notice of liability to the employee “for statutory damages in the sum of $500 and all actual damages occasioned by such action including reasonable attorney fees.” (Ill. Rev. Stat. 1987, ch. 48, par. 39.4c(3).) The complaint alleges various times in the past five years when plaintiff has assigned wages to a defendant and received a notice of an intention by that defendant to serve a demand on that plaintiff’s employer. In each case, the form of the notice allegedly sent was that set forth in section 2.2 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 39.2b), prior to an amendment by Public Act 83 — 867 (Pub. Act 83 — 867, §1, eff. Jan. 1, 1984 (1983 Ill. Laws 5608)). This form was materially different than that later required by section 2.2 of the Act.

The second question designated by the circuit court in its order of January 19, 1990, is the more serious question. We consider it first. The issue raised is whether the common questions, those applicable to all members of the class, predominate over those questions which would be individual to particular members of the class. Apparently, the parties agree that the sufficiency of the notice of intent to make demand would be a common question, as would the liability for the statutory penalty. The questions which would not be common would concern actual damages and attorney fees.

In addition to the issue of the commonality of questions which predominate over those affecting only individual members of a class, which is involved here, the other prerequisites for bringing a class action under section 2 — 801(2) of the Law are:

“(1) The class is so numerous that joinder of all members is impracticable.
* * *
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” Ill. Rev. Stat. 1987, ch. 110, pars. 2-801(1), (3), (4).

The leading Illinois Supreme Court decision on this question of whether a common question satisfies the required factor of being predominant is McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565. There, the court upheld a circuit court decision dismissing a complaint seeking to bring a class action to obtain reimbursement for all persons who had paid fines and costs in the circuit court of Champaign County pursuant to conviction under statutory provisions related to marijuana (Ill. Rev. Stat. 1969, ch. 38, pars. 22 — 1 through 22 — 49.1), which had previously been declared unconstitutional. (People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.) The supreme court concluded the common question had already been resolved by its declaration of the invalidity of the statute upon which the fines and costs had been collected, and the remaining issues would concern the nature of the various offenses for which the monies had been paid and the individual amounts the various persons who would be members of the class had paid. The supreme court held the circuit court had not abused its discretion in ruling that the already decided question of constitutionality was not predominant.

Prior to Burgess, the supreme court had decided Ross v. City of Geneva (1978), 71 Ill. 2d 27, 373 N.E.2d 1342. A suit had been brought in the circuit court asking the court to declare invalid a City of Geneva ordinance imposing a surcharge on commercial users of municipally supplied electricity and to permit recovery for amounts paid pursuant to the surcharge. That plaintiff requested to proceed as a class action on behalf of all those who had paid such illegal surcharges. The circuit court declared the surcharge invalid and permitted that plaintiff to recover for surcharge payments he had made but refused to permit proceeding as a class action. The Second District Appellate Court affirmed the portion of the judgment declaring the surcharge invalid but reversed the circuit court’s denial of the request to permit proceeding as a class action. (Ross v. City of Geneva (1976), 43 Ill. App. 3d 976, 357 N.E.2d 829.) That court held the legality of the surcharge was clearly the predominant question in the case. The supreme court agreed and affirmed.

Here, defendants maintain the situation alleged is more like that in Burgess than that in Ross. This contention is based on the theory that the impropriety of defendants’ notices of intention to demand wages is indisputable, making the case analogous to Burgess, where the invalidity of the statute upon which the fines and costs had been paid had already been decided.

One basis upon which defendants rely is unfounded. They point out they have filed a motion to dismiss plaintiff’s complaint and note the rule that in regard to a ruling on a motion to dismiss a complaint, the allegations of the complaint are taken as true. (Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642, 307 N.E.2d 724.) They then argue that the common question of the propriety of the notices stands admitted and, accordingly, is in the same position as the common question of the validity of the marijuana laws in Burgess. If defendants’ theory is correct, the predominance and, indeed, existence of a common question upon which a request for certification of a class action is based could always be refuted by a defendant by moving to dismiss the complaint in which the request for certification is contained. The admission of the allegations of a complaint arising from a motion to dismiss is only for the purpose of determining whether a complaint states a substantive cause of action and does not affect any other aspect of the case.

More in point is defendants’ explanation that section 2.2 of the Act states that the “Notice of Intent to Assign Wages” “shall be” in the form prescribed (Ill. Rev. Stat. 1987, ch. 48, par. 39.2b), and section 4.3 of the Act states that upon service of a notice not in conformity to section 2.2 of the Act, the server “shall be liable to the employee” for the statutory penalty and actual damages and attorney fees. (Ill. Rev. Stat. 1987, ch. 48, par. 39.4c.) The portion of section 4.3 of the Act providing for liability for a nonconforming notice was part of legislation which also changed section 2.2 of the Act to state that the notice described there “shall be” in the form shown. (Pub. Act 83 — 867, §1, eff. Jan. 1, 1984 (1983 Ill. Laws 5608).) Prior to that time, section 4.3 of “An Act to promote the welfare of wage-earners by regulating the assignment of wages ***” (Act) (Ill. Rev. Stat 1981, ch. 48, par. 39.4c) made no mention of liability of an employer in regard to an improper “Notice of Intent to Assign Wages” and section 2.2 of the Act merely required that notice “shall be in substantially” the form then prescribed. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 48, par. 39.2b.) The foregoing legal history does indicate absolute liability for failure to give notice in the form required.

Because of the absolute nature of the liability involved here, the common question would be one of easy decision and would not seem to predominate a case brought under section 4.3 of the Act. However, most other questions in such a case would not be very difficult either. Each party suing would have to prove that a notice, not in the statutory form, was sent to that party. Once that was proved, that party would be entitled to statutory damages in the sum of $500 for each improper notice sent. The question of whether such a party was also entitled to additional compensatory damages would require different proof in each case and would seem to be the issue which would predominate in each case in regard to the time involved and the difficulty of proof.

In Gutansky v. Advance Mortgage Corp. (1981), 102 Ill. App. 3d 496, 430 N.E.2d 122, under circumstances analogous to those here, the First District Appellate Court held that permitting a case to proceed as a class action would have been reversible error as a matter of law. Statutory provisions required mortgagees of real estate to execute and file for record releases of mortgages upon satisfaction of the underlying indebtedness. (Ill. Rev. Stat. 1977, ch. 95, par. 52.) If the foregoing was not accomplished within 30 days of satisfaction of the indebtedness, the mortgagees were stated to be liable to the mortgagors for $200 and a reasonable attorney fee in civil actions. (Ill. Rev. Stat. 1977, ch. 95, par. 54.) Comortgagors brought suit against a financial institution contending that defendant had failed to make a timely release of the mortgage after they paid off the underlying indebtedness. Those plaintiffs sought to proceed in a class action on behalf of themselves and others similarly situated. The circuit court permitted those plaintiffs to proceed individually but refused to certify the case as a class action.

On ultimate appeal, the Gutansky court concluded the circuit court had refused to certify the case as a class action because that court felt a class action could not be brought to recover a statutory penalty. The appellate court held the circuit court was wrong in its reasoning but, nevertheless, the appellate court affirmed. It held that under the legislation concerning mortgage releases, the right of parties similarly situated to those plaintiffs to recover under the statute was “settled beyond doubt” just as were the rights of those convicted of marijuana offenses in Burgess. (Gutansky, 102 Ill. App. 3d at 501, 430 N.E.2d at 126.) Accordingly, the Gutansky court determined the case presented no predominant common question and failed as a matter of law to qualify for class-action status.

Here, as in Gutansky, the suit concerns violation of a remedial statute providing for a penalty. The validity of the statute is not in doubt, and the right of persons protected under the statute to proceed upon easy proof of a statutory violation is clear. Gutansky presented a stronger case for a class action than the instant case, because here, in addition to recovery of the statutory penalty, which is provided for upon showing a statutory violation, the issue of compensatory damages is present. That issue can only be determined on an individual basis as to each person injured by a statutory violation. We recognize that the existence of individual questions does not necessarily defeat a class action if a common predominant question of law or fact exists. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) However, when an individual question does exist which is more time consuming and more difficult to prove than the common question which is readily proved, that situation tends to negate the predominant status of the common question.

Plaintiff sought in the complaint to avoid the issue of compensatory damages by not requesting those damages for any class member. She argues that few people would be able to prove compensatory damages and maintains those wishing to raise that issue could request to not be included in the class pursuant to section 2 — 804(b) of the Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 804(b)). That provision permits a class member to be excluded upon request. While such action could be taken, the fact that those who wish to raise any issue of substance in the case would likely not be included in the class negates the need or desirability of creating a class action.

The instant case is clearly distinguishable from Ross, where the validity of a municipal ordinance was a substantial question of some doubt. Justice Underwood dissented from the supreme court decision there on the basis that the invalidity of the ordinance was not shown. There, that question was clearly common to all class members and predominated. Thus, the only issue subject to individual decision was the calculation of how much each person who had paid the surcharge in question was to be reimbursed.

In addition to Ross, plaintiff also relies upon Gulish v. United States (W.D. Pa. 1978), 78 F.R.D. 515. Gulish was also discussed by the supreme court in Burgess. In Gulish, the case had been remanded to the Federal district court by the decision in Neely v. United States (3d Cir. 1976), 546 F.2d 1059. Initially, the district court had dismissed a complaint seeking a class action on behalf of individuals convicted and fined under Federal wagering-tax statutes seeking annulment of the convictions of all class members and return of the fines and costs they had paid. The district court dismissed the complaint on the basis that a class action would be unmanageable. The taxing statute had previously been held unconstitutional, and the Neely decision determined the district court had authority under the Tucker Act (see 28 U.S.C. §1346 (1970)), to order return of fines and costs paid under unconstitutional convictions. The Neely decision then requested the district court to determine the manageability of a class action.

On remand, the Gulish court found a manageable class action could include only a class of members residing in that district. The court deemed the issue of a predominate common question was interwoven with the issue of manageability. The court did allow a class action to be brought even though, at that stage, the common question of the invalidity of the statute upon which convictions had been obtained had been decided as well as the right to those wrongly convicted to the return of fine and costs. The supreme court considered this in its decision in Burgess but distinguished the case on the basis that there the question of whether the possible class members were entitled to refunds had not been decided when the case originated. In effect, the supreme court concluded that the issue of a predominant common question must be viewed in the light of the existence of that issue when the proceeding was initiated. In Gulish, the question of the general right to reimbursement was an uncertain issue. In Burgess, that question had been fully decided. Here, and in Gutansky, the question of whether persons whose statutory rights were violated had a cause of action was “settled beyond doubt,” when the case was filed.

Because the Act is remedial in nature, plaintiff maintains public policy will be promoted by favoring class actions to enforce its provisions. She reasons that by doing so courts will encourage the filing of such actions under circumstances where the amount any one individual might recover is too small to support such an action. She contends this case presents such a situation, partly because no individual harmed is likely to be able to prove substantial compensatory damages. In support of her argument she cites Vickers v. Home Federal Savings & Loan Association (N.Y. Sup. Ct. 1976), 87 Misc. 2d 880, 386 N.Y.S.2d 291, where a suit was brought in a New York trial court for recovery under Federal legislation, the Consumer Credit Protection Act, generally known as the Truth In Lending Act (TIL) (see 15 U.S.C. §1601 et seq. (1982)). That court permitted a class action to be brought in that case.

In support of its decision, the Vickers court, in discussing language of Senator Hart who, in regard to an amendment to TIL deemed to authorize class actions under TIL, stated:

“ ‘The actual damages,’ he pointed out, ‘resulting from abuses of disclosure, billing practices, and discrimination are usually negligible or extremely difficult to prove. For that reason, we set up a minimum award of $100 for an individual action in our original act. But lawyers’ fees and the costs of suit are such that the only truly effective means of enforcing the sound provisions of this act is by class suits ...[.]
[]... The object in this type of class suit is not so much to compensate the injured party, but to give an economic incentive to companies for compliance with the law.[’]” Vickers, 87 Misc. 2d at _, 386 N.Y.S.2d at 295, quoting 119 Cong. Rec. 25,414, 25,419 (1973) (statements of Senator Hart).

The Vickers opinion stated that the fact one plaintiff may be entitled to more relief than another did not negate proceeding as a class action. However, the common questions had substance. Moreover, the theory that litigation under TIL should be encouraged was stated within the context of language of TIL, which limited total recovery in the class action to the lesser of $100,000 or 1% of the defendant’s net worth. (15 U.S.C. § 1640(a)(2)(B) (1982).) Here, neither the Law nor the Act places any limitation upon total recovery in a class action. Plaintiffs complaint alleges as many as 1,000 persons may be entitled to the $500 penalty provided for by section 4.3(1) of the Act.

We do not interpret Burgess as a decision intended to apply only under the circumstances where the common question is the validity of legislation which has already been declared invalid. We agree with Gutansky that Burgess is applicable when the common question has been “settled beyond a doubt.” Under such circumstances, the common question cannot predominate. While the Burgess court recognized the discretion vested in the trial court and, there, affirmed a trial court ruling, we also agree with Gutansky that when common questions fail to “predominate” over other questions, the grounds for a class action fail as a matter of law. While the Vickers court indicated that promotion of class actions under TIL with its safeguards should be encouraged, we do not deem public policy to encourage class litigation here. The circuit court of Champaign County could have handled a class action in Burgess, and the circuit court of Macon County could handle one here. However, in neither case would any substantial saving in efficiency occur, because neither case presents any substantial question of proof which would apply to all cases.

We find no merit in defendant’s contention the circuit court’s order of January 8,1990, was inadequate.

Section 2 — 802(a) of the Law states:

“Order and findings relative to the class, (a) Determination of Class. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class. This order may be conditional and may be amended before a decision on the merits.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 802(a).)

That order met those requirements. No special findings were necessary. Furthermore, any deficiency, if called to the circuit court’s attention, could be corrected by amendment.

Because of the lack of allegation of any “predominant” common questions in the complaint, we reverse the order of January 8, 1990, to the extent it provided for a class action and to the extent the order denied dismissal of the class action aspects of the complaint. We remand the cause to the circuit court of Macon County for further proceedings.

Reversed and remanded with directions.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LAUTENSCHLAGER, Defendant-Appellant.
    Fourth District
    No. 4—90—0368
    Opinion filed November 29, 1990.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On August 1, 1989, following a bench trial in the circuit court of McLean County, defendant John Lautenschlager was found guilty of committing the offense of retail theft with a prior conviction. (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 3.) He was subsequently sentenced to five years’ imprisonment. Defendant now appeals, solely alleging that the sentence is excessive.

The evidence establishes that on August 15, 1988, defendant and three companions entered a Cub Foods store around 10 p.m. The four men were very boisterous and attracted the attention of the security personnel. The four men traveled around the store, throwing items into a shopping cart. One such item was a carton of cigarettes. At one point, the men separated and traveled down different aisles. When they regrouped, they left the cart and exited the store. A security person stopped them outside and asked them to come inside to discuss the damage to the goods. It was then discovered that several packages of cigarettes were missing from the carton. Defendant was found to have one of these packages in his possession. The record also establishes that defendant has a prior burglary conviction.

Following the finding of guilty, the matter was continued for the presentence report. Defendant failed to appear at the initial sentencing hearing, and a warrant was issued. He was apprehended in Florida and extradited back to Illinois. He explained to the court he left to get work and forgot to tell anyone.

The presentence report established that defendant is 22 years of age and left high school after his freshman year. On July 12, 1985, he was placed on probation for the misdemeanor offenses of unlawful possession of alcohol by a minor and retail theft under $150. On August 8, 1985, he was charged with the offenses of residential burglary, theft under $300, criminal damage of property under $300, and theft over $300. (Ill. Rev. Stat. 1989, ch. 38, pars. 19-3(a), 16-1, 21-1, 16-1.) On December 2, 1985, he was ordered to undergo treatment in the Treatment Alternatives to Street Crimes (TASC) program. However, in January 1986, he was removed from the program for noncompliance. The State subsequently amended the residential burglary charge to burglary, and defendant pleaded guilty to all four offenses. He received a three-year prison sentence and was paroled on August 12, 1988.

The court, in imposing sentence, found defendant qualified for an extended-term sentence. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3.2(b)(1).) In mitigation, the court considered defendant’s young age, the fact he had employment in Florida, and letters from a number of people written on his behalf. In aggravation, it found these cigarettes were not taken from need, that defendant left the public school after his freshman year and was expelled the following year from a private school, and that defendant admitted a history of use and abuse of illegal substances. The court further reviewed defendant’s criminal history and the timing of the offenses. The court observed that less than one month after being placed on probation for the retail-theft offense the defendant committed the felony offenses, that he was unsuccessfully discharged from TASC, that he was subsequently sentenced to prison, and that within three days of his release on parole he committed the instant offense. The court concluded the three-year sentence must have been ineffective to change defendant’s outlook on life. Accordingly, the court imposed a five-year extended-term sentence.

Defendant argues on appeal that this sentence is excessive. He observes the State only recommended a two-year prison sentence. He also argues the sentence is entirely disproportionate to the offense, which involved the theft of one pack of cigarettes.

It is well settled that imposition of the sentence is placed in the sound discretion of the trial court and, absent an abuse of that discretion, it will not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.) Here, we find no such abuse.

A review of the record establishes, as set forth, that the court carefully considered and weighed the appropriate factors. While the sentence is in excess of the State’s recommendation, this is no problem. It is to be remembered that this is just that, a recommendation. An attitude has developed that somehow the State’s recommendation is the upper limit of any appropriate sentence. This, of course, is not true.

Also, the fact that the ultimate offense involved property of little value is not controlling. While this may be an appropriate factor to consider, there are other factors, such as defendant’s criminal record and lack of rehabilitative potential, which, in this case, are more compelling. A reasoned judgment as to the proper sentence to be imposed must be based on the particular circumstances of each individual case. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Defendant, due to his prior record, qualified for an extended-term sentence, which could have resulted in a six-year term of imprisonment. The court imposed a five-year sentence. A court’s sentencing decision is to be given great deference and weight. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) The court carefully and appropriately considered and balanced the proper factors. We find no abuse of discretion.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE SPITZ JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. BEEHN, Defendant-Appellant.
    Fourth District
    No. 4—90—0366
    Opinion filed November 29, 1990.
    STEIGMANN, J., specially concurring.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a consolidated, stipulated bench trial conducted in the circuit court of McLean County, the defendant David W. Beehn was found guilty but mentally ill (GBMI) of the offenses of burglary, criminal damage to property having a value in excess of $300, and the aggravated battery of a correctional officer. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1, 21 — 1, 12 — 4(b)(6).) Defendant was sentenced to concurrent terms of imprisonment of three years for each offense.

On appeal, defendant challenges only his convictions for burglary and criminal damage to property, defendant’s appeal from the aggravated battery conviction having been dismissed on defendant’s motion (case No. 4 — 90—0367). Defendant argues the finding of GBMI is inappropriate, contending that the evidence requires a finding that defendant was not guilty by reason of insanity.

The stipulated facts pertaining to the convictions being appealed are these. Helen Behary would testify that on November 6, 1989, at about 9:30 a.m. she was at her residence at 305 Garfield in Bloomington with her daughter. She was in the kitchen when she heard a loud banging at the front door. She looked at the front door and saw it being kicked by a white male wearing a light-colored shirt. After calling the police using the 911 emergency number, she went to the front door and looked out the window next to the door. She recognized the white male as the defendant.

The defendant was screaming and yelling. He had a cross in his hand. Behary asked the defendant what was wrong and what he wanted. The defendant replied, “Come with me and show me where Mike is.” The defendant said, “Get dressed you bitch and you have to come with me and show me where Mike is.” The defendant threatened to kill Behary if she did not go with him and continued kicking the door.

Behary left the front door and met her daughter in the hallway. She suggested leaving through the bathroom window. The daughter said they should leave through the back door, which they did.

After the arrival of the police at the scene, Behary returned to her house to find that the front storm door and regular door had been kicked in and damaged. The microwave had been pushed into the wall, making a large hole. Dishes were broken on the floor. A pair of her eyeglasses had been broken.

In other rooms in the house, boxes had been tipped over and, in the bedroom, the letters “LG” had been written on the mirror with wax. She believes those letters stand for “Little God.”

Behary would further testify she at no time gave the defendant permission to enter her home or to damage any items in her home. Furthermore, she would testify as to the amount of damages.

Next, Officer Bauer would testify that on November 6, 1989, he was in uniform and on duty as a patrolman for the Bloomington, Illinois, police department. He was dispatched to the location regarding a burglary in progress.

Upon arrival at the house, Bauer heard a crash from inside the house. As he moved closer to the house, he saw the front door had been damaged and was broken in several places. As Bauer got to the door, the defendant came out of the house with a cross in his left hand and a rolled-up pad of yellow paper in his right hand. The defendant told the officer his name was David Beehn. The defendant was asked if he lived at this address and he responded no, that Helen Behary did. Bauer told the defendant to turn around and place his hands on the wall. The defendant turned and, with both hands, knocked the screen out of the storm door. After knocking the screen out, the defendant held the door frame with both hands and refused to release the door upon being requested to do so. The defendant was asked three times to place his hands behind his back and, upon the third refusal, was removed from the door and held on the ground until Bauer’s backup could arrive.

While being held on the ground, the defendant kept saying, “We are the children of the world.” The defendant also repeated the Lord’s Prayer and made other religious statements. The defendant continued to hold the cross and notepad.

Officer Rhoda arrived at the scene and the defendant was handcuffed. Once handcuffed, the defendant seemed to calm down. Bauer observed damage to both the storm door and the regular door. The microwave oven and radio were thrown from the counter top to the floor of the kitchen. There was a hole in the wall across the hallway from the counter top, apparently caused by being struck by the microwave.

Officer John Rhoda’s testimony in this cause would be that on November 6, 1989, he was in uniform and on duty as a patrolman for the Bloomington police department. Rhoda was dispatched to assist Bauer. Upon arrival, he saw Bauer restraining defendant. The defendant was holding a cross in one hand and a notepad in the other. The defendant was continuously making religious comments. The defendant told Rhoda he was God and that he had to kill Satan. The defendant said he had been reborn after each of two suicide attempts.

The defendant was transported to the Bloomington police department. Upon arrival, he suddenly quit talking religion and wanted to know what was going to happen to him. The defendant stated that he would see a judge and get out today. The defendant asked to go to Brokaw Hospital and be evaluated, saying that it was his right. The defendant would not state he had any problems, but he wanted to be evaluated. The Department of Mental Health had already been called to evaluate the defendant. People’s exhibit No. 3 consisted of 28 pages, apparently from the pad of paper, with a handwritten message repeatedly declaring the writer’s love for Michael Behary.

The defense then presented, by stipulation, the testimony of Dr. Robert E. Chapman, a psychiatrist licensed to practice in the State of Illinois, to the effect that Chapman had examined defendant on January 12, 1990, and prepared a written report dated January 22, 1990, which contained his findings, diagnosis, and the basis for his opinion. The report was admitted as defendant’s exhibit No. 1. Although the report will not be quoted in its entirety, significant portions of it must be related in order to understand the arguments on appeal.

“PSYCHIATRIC HISTORY: He was in Brokaw Hospital Psychiatric Unit three times under the care of Dr. Baker and Dr. Bey. Hospital records show a primary diagnosis of Schizo-affective Disorder. He said the reason he was hospitalized was because of mental confusion and he was paranoid. He said his parents were in Florida and he ‘went to Helen Behary’s and she gave me two pills and called the doctor.’
He has had two suicide attempts. First was the summer of 1988 when he overdosed with the medicine from the home bathroom medicine cabinet. His father called the emergency squad and they took him to Brokaw to the Intensive Care Unit. The second time was while on the Psychiatric Intensive Care Unit at Brokaw Hospital he took a nail from his religious cross and cut his left wrist.
DEFENDANT’S VERSION OF THE BURGLARY AND CRIMINAL DAMAGE TO PROPERTY: T just wanted a peace treaty at the Saltwater Summitt. I went there about 9 a.m. to get her and Mike to sit down and talk about what they wanted from me. Mike was living at Brad Koch’s house. I took my cross with me. I knocked on the door, she came to the window and I asked for Mike. I wanted her to show me where he was. She said something, I can’t remember too much after that. I love Mike Behary as a friend. I’m going to be a father to a son or a son to a father, I don’t know which.’
He said he sees Mrs. Behary as the devil controlling others and having others do things to drive him crazy and kill him. For example, she had her daughter put on makeup, called Mike’s roommate and caused him to do peculiar things, etc.
* * *
MENTAL STATUS EXAMINATION: He was vague, mildly confused with poor concentration. He showed delusional thinking, flat affect, difficulty holding attention, tangential thoughts, loose association of thought, irrelevant comments, and poor short-term memory. He denied hearing voices but stated, ‘People watch me and talk about what I do or say. Sometimes I can’t hear them but I believe they are talking about me. I hate nigger dope dealers, they and the communists are to destroy this country. I can see what’s coming, females turning into males and homosexuality to destroy America. Blacks are taking over all the white women.’ His thought content was at times bizarre and difficult to comprehend.
SUMMARY OF PSYCHOLOGICAL TESTING: The Minnesota Multiphasic Personality Inventory showed him to be quite angry and depressed. He does not accept full responsibility for his low mood instead blaming others for working against him. It shows evidence of poor memory, concentration problems and inability to make decisions. It shows he feels that life is no longer worth while and that he is losing control of his thought processes. He feels estranged from people, somewhat alienated and concerned over the action of others and may tend to blame others for his negative frame of mind. His responses showed a number of extreme and bizarre thoughts suggesting a presence of delusions and or hallucinations. He apparently believes that he has special mystical powers or a special ‘mission’ in life which others do not understand or accept.
PSYCHIATRIC DIAGNOSIS: Schizo-affective Disorder with Paranoid features.
OPINION: It is my opinion given with a reasonable degree of medical and psychiatric certainty based on information available to me and examination of the Defendant, David William Beehn, that on November 6, 1989, and while at 305 Garfield Drive, Bloomington, Illinois, and during the time he allegedly committed the offense of Criminal Damage to Property over $300 and the offense of Residential Burglary he was suffering from Schizo-affective Disorder with Paranoid features to such a degree as to substantially impair his capacity to appreciate the criminality of his behavior.
It is further my opinion that on November 7, 1989, while he was incarcerated at McLean County Jail, Bloomington, Illinois, and at the time that he allegedly committed the offense of Aggravated Battery, he was suffering from the mental disease of Schizo-affective Disorder with Paranoid features. This caused his mental state to be such as to irrationally fear for his welfare and life and to misinterpret the action of others to such a degree as to substantially impair his capacity to appreciate the criminality of his behavior.
DISCUSSION: During the period of time of the above cited events, David Beehn was suffering from the mental disease of Schizo-affective Disorder with Paranoid features. This caused him to experience delusional thinking, to misinterpret his environment, to believe and hold with great emotion, the fear of being driven crazy, killed and that he possesses magical powers and [is] on an important religious mission to counter threats against him. These symptoms substantially impaired his judgment, his self control and an appreciation of how his behavior affected other people. This substantial disorder of thought and mood, colored, influenced and guided his life, thought, moods and behavior.”

No rebuttal evidence was presented by the State.

With respect to the effect of insanity on criminal responsibility, section 6 — 2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 6 — 2) states, in relevant part:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.
(e) When the defense of insanity has been presented during the trial, the burden of proof is on the defendant to prove by a preponderance of the evidence that the defendant is not guilty by reason of insanity. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged ***.”

Unless it is contrary to the manifest weight of the evidence, the fact finder’s resolution of the issue of defendant’s sanity at the time of the offense will not be disturbed on appeal. People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085; People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139.

In this case, the defendant contends that the trial court must accept the psychiatrist’s conclusions because there is absolutely no other evidence before the trial court from which a contrary conclusion could be found. The State disagrees.

The State’s argument starts with the presumption that all persons are presumed sane. (See People v. Young (1978), 60 Ill. App. 3d 351, 376 N.E.2d 739.) The State then proceeds to argue that the trial court need not accept the psychiatrist’s opinion of defendant’s insanity at the time of the offense when there are other facts before the court which cast doubt on the psychiatrist’s conclusions. For example, in People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969, this court concluded the expert’s opinion did not preclude the trial court from finding defendant to be sane at the time of the offense based on the testimony of lay witnesses about defendant’s demeanor and conduct on the day she fatally shot her brother and on the expert’s own testimony that defendant’s mental illness would not be a primary operative factor in the shooting if he in fact had a wrench in his hand as she claimed. However, in Marshall, the testimony of the psychiatrist raised serious doubts. The psychiatrist testified that a paranoid delusion on the part of defendant that her brother posed a threat to her was only one of three possible explanations for the shooting. According to the psychiatrist, the defendant knew it was against the law to shoot people except in self-defense, but she felt she was not breaking the law because she was acting in self-defense. The psychiatrist also implied that defendant simply did not care about the law, rather than lacking the capacity to conform her conduct to the requirements of the law.

The State further suggests that less weight may be given to the psychiatrist’s report because it is based on information related by the defendant which may be self-serving and untruthful and which could affect the diagnosis. In support of this proposition, the State cites People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423, and People v. Romaine (1979), 79 Ill. App. 3d 1089, 399 N.E.2d 319. Both cases hold that the State need not present expert opinion testimony of defendant’s sanity, but may rely on weaknesses in the factual basis of the opinion of the accused’s expert. However, in neither of those cases was that fact the sole reason relied on by the appellate court to uphold the finding of sanity. In Romaine and Spears the psychiatrists made a number of qualifying statements regarding the belief of the respective defendants’ insanity. Furthermore, in both cases there was testimony by lay witnesses which the trier of fact could resort to as assistance in finding the defendant to be sane at the time of the offense.

In this case, the tactical decision to proceed on a stipulated trial where the defense of insanity is raised is drawn into question. The psychiatrist could not be cross-examined and no rebuttal witnesses were available to testify.

Nevertheless, the State argues there were facts before the trial court on which the trial court could rely in rejecting the expert’s opinion of insanity. The State, after conceding that defendant at times engaged in some unusual behavior, argues that at other times defendant appeared lucid and coherent. For example, defendant was able to tell Bauer who lived at the house. After arriving at the police station, defendant stopped talking religion and asked what was going to happen to him. He anticipated going before a judge, and stated he had a right to be evaluated and wanted to go to the hospital.

The State points out that the fact defendant appeared coherent and normal in behavior shortly after the incident is a factor the trial court could have considered in determining whether to rely on the psychiatrist’s report. (See Martin, 166 Ill. App. 3d 428, 519 N.E.2d 1085.) In addition, the State contends the trial court could consider the circumstances surrounding the psychiatrist’s examination of defendant, such as the length of time between the incident and the examination, the extent to which the diagnosis was based on defendant’s statements, and whether defendant was aware of the purpose of the examination and that the findings would be available for use at trial. The State points out that Chapman did not examine this defendant until over two months after the incident. The State contends Chapman relied primarily on defendant’s statements. Chapman’s report indicates defendant stated “I believe I committed a crime” and further indicates defendant’s understanding that the psychiatrist’s report would be available to the court and that the psychiatrist could be called upon to testify. The State also argues the ceasing of criminal conduct by defendant when the police arrived should also be considered in determining defendant’s sanity at the time of the offense.

This court agrees with the State that there exist sufficient facts in the record from which the trial court could reasonably find defendant was sane at the time of the commission of the offense in question. Accordingly, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

McCullough, j., concurs.

JUSTICE STEIGMANN,

specially concurring:

While I concur in the judgment of the majority affirming defendant’s conviction, I do not agree with its reasoning. In my opinion, an incorrect standard of review has been employed by the majority. Accordingly, I specially concur.

Even though both the State and the defense cite People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085, and this court’s decision in People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139, for the proposition that the fact finder’s resolution of the issue of defendant’s sanity at the time of the offense will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence, this standard is no longer valid with regard to insanity cases. Subsection (e) was added to section 6 — 2 of the Code by Public Act 83 — 288, effective January 1, 1984. (Pub. Act 83 — 288, §1, eff. Jan. 1, 1984 (1983 Ill. Laws 2035).) The addition of that subsection eliminated the requirement, in cases in which the insanity defense has been raised, that the State must prove beyond a reasonable doubt that the defendant was not insane; instead, subsection (e) now provides that the burden is on the defendant to prove by a preponderance of the evidence that he is not guilty by reason of insanity.

The standard of review of a finding that the defendant was not insane, as discussed in Martin and Janecek, is premised upon earlier decisions, which in turn are premised upon section 6 — 2 of the Code prior to its 1984 amendment. For instance, in holding that the fact finder’s resolution regarding defendant’s insanity will not be disturbed unless it is contrary to the manifest weight of the evidence, this court in Janecek cites only Martin in support. (Janecek, 185 Ill. App. 3d at 93, 540 N.E.2d at 1142.) Martin in turn cites People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066, in support of that same standard of review. (Martin, 166 Ill. App. 3d at 433, 519 N.E.2d at 1088.) Teague, however, was a 1982 appellate court opinion arising from a 1977 conviction of various felony counts. At the time Teague was decided, subsection (e) had not yet been added to section 6 — 2 of the Code.

The defendant’s burden under subsection (e) of section 6 — 2 of proving by a preponderance of the evidence that he is not guilty by reason of insanity is the burden applicable in civil proceedings; when reviewing determinations by a trier of fact that a defendant who asserted the insanity defense failed to meet that burden of proof, appellate courts should apply the standard of review applicable to civil cases. The Third District Appellate Court correctly stated that civil standard of review as follows: “It is not our position to question the wisdom of a jury’s verdict unless the defendant is entitled to a directed verdict or judgment n.o.v. under the Pedrick [v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504] standard.” (Spring v. Toledo, Peoria & Western R.R. Co. (1976), 44 Ill. App. 3d 3, 11, 357 N.E.2d 1330, 1336, affd (1977), 69 Ill. 2d 290, 371 N.E.2d 621.) The Third District Appellate Court in Spring also said the following:

“Both parties agree that the standard for determining whether a directed verdict or a judgment n.o.v. should be given is established in Pedrick [citation]. This oft cited case requires a directed verdict or judgment n.o.v. to be entered ‘only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ (37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.)” Spring, 44 Ill. App. 3d at 10, 357 N.E.2d at 1335.

The foregoing standard should be applied to the present case as this court considers whether defendant proved by preponderance of the evidence that he was not guilty by reason of insanity. When all the evidence is viewed in its aspect most favorable to the prosecution, I conclude that it cannot be said the evidence so overwhelmingly favors defendant’s argument that he was insane that no contrary verdict based upon this evidence regarding defendant’s insanity could ever stand.