text:
    THE PEOPLE ex rel. MARSHALL E. DOUGLAS, State’s Attorney, Rock Island County, Plaintiff-Appellant, v. ONE 1984 TOYOTA SUPRA VEHICLE, Registration Number JT2MA67L5E0117591, Title Number P4343504, et al., Defendants-Appellees.
    Third District
    Nos. 3—90—0013, 3—90—0014 cons.
    Opinion filed September 5, 1990.

      HEIPLE, P. J., concurring in part and dissenting in part.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Gary E Gnidovec and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Michael L. Wassell, of Braud/Warner, Ltd., of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Two complaints for forfeiture of property were filed and consolidated, one against a 1984 Toyota Supra automobile and the other against $14,705, a cellular telephone, an Archer adapter, and a cellular telephone charger stand. (Ill. Rev. Stat. 1989, ch. 38, par. 3— 1; ch. 56½, par. 1505.) All of the items were said to have been owned by the defendant, Wayland Clay, Jr. Following a hearing on the complaints, the trial court denied the forfeitures. The State appeals. We affirm in part and reverse in part.

The record shows that Officer Richard Fristoe testified at the forfeiture hearing that he was involved with the defendant’s arrest for possession of cocaine. On May 2, 1989, he was informed about a possible narcotics transaction in progress at a residence located at 1711 Eighth Street. While conducting surveillance of the residence, he saw a 1984 Toyota Supra automobile parked at the home. Thereafter, he saw the defendant exit the house, enter the Toyota, and leave the area at a high speed.

Following a chase, the defendant stopped his vehicle and upon exiting the car began throwing items from his pants pockets to the ground. Officer Fristoe recovered two items containing a white powdery substance which field-tested positive for the presence of cocaine. Upon searching the car, he found on the floor of the passenger side a white powdery substance which also field-tested positive for the presence of cocaine. He observed a similar white powdery substance on the passenger seat, on the center console between the bucket seats, on a cellular telephone and recharger, on an electronic scale, and on a black purse found on the passenger seat.

Regarding the black purse, Officer Fristoe testified that it contained a package of Joker-brand rolling papers and $14,705 in cash. He stated that most of the cash was in $10 and $20 bills along with a few $100 bills. He did not prepare a checklist setting forth the particular denominations of the bills.

Officer Ronald D. Tacey testified that he was involved in the subsequent investigation relating to the defendant’s arrest. He stated that he executed a search warrant on a residence located at 1606 14th Street in Rock Island. Both the defendant and his mother lived there. Tacey testified that several items were seized, including a note with telephone numbers and different dollar amounts written on it.

The defendant testified and admitted that the automobile, cellular telephone, and recharger were his. He stated, however, that the money was not his and instead belonged to his mother. He stated that the reason he had the money was to wire $5,000 to his brother in Florida and to send the rest to his mother, who was in Oklahoma at the time.

He further testified that his mother had approximately $22,000 in cash at their home. She had instructed him to send $5,000 of it to Florida to help her son. He had taken what he thought was about half the money, placed it in the purse, and returned the other half to its normal hiding place. He stated that the money was in $100 and $50 denominations only.

Regarding the cellular telephone and its attachments, the defendant denied buying them for the purpose of transacting a cocaine business. He stated that he had purchased the telephone for his employment with Chem-Lawn since he worked out of town a lot and the company did not have two-way radios with which to contact him. The defendant admitted, however, that the phone was in his personal car and that he used a company-owned truck while working. He also stated that the present telephone bill was over $900. He denied that the piece of paper listing telephone numbers and dollar amounts was his.

Finally, the defendant testified that he had not received notice of the forfeiture complaint in the mail. He believed the postal service had the certified notice in its office, but stated that he had never gone to sign for it.

The defendant’s mother, Wilhemina Clay, testified that she had $22,000 in cash hidden in her home. She stated that she had received this money from an insurance claim and an inheritance from an aunt. The money was kept in $50 and $100 denominations. She also stated that she had given the defendant the authority to send $5,000 to her son in Florida.

Finally, Officer Harrison A. Smith testified that he had dated Wilhemina Clay and knew she kept a large amount of money in her home. He stated that the money had come from an insurance claim and an inheritance.

Thereafter, the trial court denied the complaints for forfeiture. Regarding the Toyota, the court held that the State had failed to show that notice of the forfeiture proceeding had been sent' by certified mail to the defendant. The court added that had this requirement been met it would have granted the State’s complaint. With respect to the $14,705, cellular telephone, and attachments, the court held that the State had failed to prove by a preponderance of the evidence that the items had anything to do with the defendant’s possession of a controlled substance.

On appeal, the State first argues that the trial court erred in denying forfeiture of the Toyota. Specifically, it contends that the notice requirement of section 36—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 36—1) was met. In the alternative, it argues that the defendant waived this issue.

Section 36—1 sets forth the method of notice and requires that a copy of the notice be sent by certified mail. (Ill. Rev. Stat. 1989, ch. 38, par. 36—1.) In the case at hand, the trial court found that the State failed to prove that notice had been sent by certified mail to the defendant. The record reveals, however, that the State did attempt to notify the defendant by certified mail. The defendant admitted that he believed the post office was holding a piece of certified mail for him.

Furthermore, even if the State did not prove the notice requirement, we would nonetheless find that the trial court erred in requiring such proof under the circumstances of this case. Statutes imposing certain technical requirements for notice may not be strictly enforced if the party seeking enforcement had actual notice and cannot show prejudice as a result of the opposing party’s failure to comply with the technical requirements. (Prairie Vista, Inc. v. Central Illinois Light Co. (1976), 37 Ill. App. 3d 909, 346 N.E.2d 72.) Here, the record shows that complaints for forfeiture were served upon the defendant by mail and that the defendant filed a certified answer to each complaint. The record further reveals that notice of the hearing was served upon the defendant and his attorney, and on the day of the hearing, the defendant, along with counsel, appeared and actively defended himself against the complaints. It is obvious from the facts in this case that the defendant had actual notice and that he sustained no prejudice from the possible lack of notice by certified mail. Thus, we find that the trial court erred in denying the State’s complaint for forfeiture of the defendant’s Toyota.

The State next argues that the trial court erred in denying forfeiture of the $14,705. We disagree and note that forfeiture of the money and telephone was sought pursuant to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1501 et seq.). That act provides in part that all money found in close proximity to forfeit-able substances is rebuttably presumed to be forfeitable under the Act and the burden of proof is upon the claimant of the property to rebut this presumption. Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(5).

Since a forfeiture proceeding is civil in nature, once the defendant rebuts the presumption, the State need only prove by a preponderance of the evidence its right to have the property forfeited. (See People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 420 N.E.2d 770.) On review, an appellate court will not reverse a trial court’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.

In the case at hand, the trial court held that the defendant rebutted the presumption regarding the money. The record shows that the defense presented a believable and logical explanation as to the source of the money and its owner. Two witnesses testified that the money belonged to the defendant’s mother and that it was only in the defendant’s possession for transference purposes. Consistent testimony was also given regarding the source of the money and that the defendant’s mother kept the cash in her home. Based on this testimony, we cannot say that the trial court’s ruling in this matter was against the manifest weight of the evidence.

The State’s final contention on appeal is that the trial court erred in denying forfeiture of the cellular telephone and its attachments. We agree. While the trial court found that the defendant rebutted the presumption that these items were forfeitable, the record does not support that finding. When seized, these items were covered with a white powdery substance similar to a substance containing cocaine. Further, a piece of paper with telephone numbers and dollar amounts written on it was found in the defendant’s home. The record also showed that the defendant had a telephone bill for the cellular telephone of over $900.

Additionally, the record reveals that the defendant’s explanation for purchasing the telephone was unbelievable. He stated that he had purchased the telephone for work purposes since he worked out of town a lot and the company had no way to reach him. However, the defendant installed the telephone in his personal car, but admitted that he used a company truck for work. Under these circumstances, we find the trial court’s ruling was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with our findings.

Affirmed in part; reversed and remanded in part.

GORMAN, J., concurs.

PRESIDING JUSTICE HEIPLE,

concurring in part and dissenting in part:

Following the arrest of defendant, Wayland Clay, Jr., two complaints for forfeiture of property were filed against items allegedly owned by defendant. One complaint was filed against a 1984 Toyota Supra automobile and the other against $14,705, a cellular telephone, an Archer adapter, and a cellular phone. The complaints were eventually consolidated. A hearing was held on November 8, 1989, at which time testimony of various police officers, defendant’s mother and defendant was heard. Following the hearing, the trial court denied the forfeitures. The State appeals.

The majority reverses the decision of the trial court with respect to forfeiture of the 1984 Toyota Supra, finding that defendant did have actual notice of the forfeiture proceedings and did not sustain any prejudice as a result of the possible lack of notice by certified mail. The majority also reversed the trial court’s denial of forfeiture of the cellular telephone and its attachments, determining that the record does not support the trial court’s decision. The record contains adequate illustration that defendant did not overcome the presumption that the items were forfeitable. I am in agreement with the majority regarding reversal of the trial court on these two issues. However, the majority affirms the trial court’s denial of forfeiture of the $14,705, stating that the record supports a determination that defendant adequately rebutted the presumption that the money, found in close proximity to other forfeitable substances, is forfeitable. On this issue, I dissent.

The record of the forfeiture hearing includes the testimony of defendant wherein he stated that on May 2, 1989, his mother requested that he take money from the family residence, wire $5,000 to his brother, and send some to her in Oklahoma. Defendant testified that he took “half” of the estimated $22,000 in the house. Defendant also stated that the money was in denominations of $50 and $100 bills when he took it from the house and when it was counted at the police station. Defendant’s mother, Wilhemina Clay, testified that she kept a large amount of money, $22,000, in a little black pouch in her residence in $50 and $100 bills. She stated that she had counted the money before she left for Oklahoma on May 2, 1989. She also testified that she contacted defendant from Oklahoma and asked him to wire $5,000 of the money to his brother in Florida. She did not state that she requested defendant send her any money, but she did state that defendant was not authorized to take more than $5,000 from the pouch.

Officer Richard Fristoe testified that he executed the arrest of defendant on May 2, 1990, and found $14,705 and some Joker rolling papers in a black pouch in defendant’s car. The pouch was covered with a powder-like substance later identified as cocaine. Fristoe testified that he counted the currency twice and noted the money was in a variety of denominations, predominately $10 and $20 bills with a few $50 and $100 bills. Lieutenant Larry Lawrence testified that he was present with Fristoe and defendant in the booking room on May 2, 1989. He stated that he witnessed Fristoe counting the money and he noted “some 100’s, 50’s, 20’s and 10’s,” estimating mostly 10’s and 20’s. Both Lawrence and Fristoe testified that the money was placed into a temporary evidence locker and the evidence technician was instructed to transfer it to the city evidence account in a bank.

A forfeiture action is a civil in rem proceeding against the item used or connected with the commission of a crime. (People v. Dugan (1985), 109 Ill. 2d 8.) Since the forfeiture proceeding is civil in nature, the State need only prove by a preponderance of the evidence its right to have the property forfeited. (People ex rel. Power v. One 1979 Chevrolet Camero (1981), 96 Ill. App. 3d 109.) Although money is inherently legal and not contraband per se, because it is an integral part of drug offenses, it is an item subject to forfeiture as long as it is shown to have been unlawfully used or a rational relationship to an unlawful purpose is established. (People v. Snyder (1977), 52 Ill. App. 3d 612.) The evidence presented at the November 8, 1989, hearing was sufficient to establish by a preponderance of the evidence a nexus between the cash and the illegal substance to raise a statutory presumption that the money was forfeitable. (Ill. Rev. Stat. 1987, ch. 56½, par. 1505(a)(5).) Defendant subsequently failed to rebut said presumption.

The evidence contained in the record establishes that Officer Fristoe found cocaine residue on the black pouch. Inside the pouch he found rolling papers along with a large sum of money in small bills, including $10 and $20 bills. Defendant’s testimony that the money belonged to his mother was insufficient to rebut the presumption. Defendant’s mother had no $10 and $20 bills among the money she kept at the residence. If the money’s origin was defendant’s mother’s personal fund, then at some point the money was converted by defendant as evidenced by the change in denominations of the bills. The record does not support the trial court’s determination that defendant rebutted the presumption that the cellular telephone and equipment were forfeitable. The majority points out that these items were covered with the same powdery white substance that covered the black pouch and characterizes defendant’s explanation for purchasing the telephone as “unbelievable.” Defendant’s lack of credibility as to the telephone should apply similarly to the money. The car, the cellular telephone and the $14,705 were all found with defendant in the course of a drug-related offense. Defendant was later convicted of said offense, and the car, phone, and money are similarly forfeit-able. Any other determination is inexplicably inconsistent. The trial court’s determination that the statutory presumption was rebutted with respect to the money is contrary to the manifest weight of the evidence.

Accordingly, I concur in part and dissent in part.


source: Caselaw Access Project

author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

license: Public Domain

text:
      In re D.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.G., Respondent-Appellant).
    Third District
    No. 3—89—0599
    Opinion filed September 5, 1990.

      HEIPLE, P.J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The minor, D.G., was found guilty of violating his probation (111. Rev. Stat. 1987, ch. 37, par. 805 — 25). The trial court subsequently sentenced him to a five-day term in the juvenile detention center and 18 months’ probation. The minor appeals.

The record shows that prior to trial, the minor filed motions to quash his arrest and suppress certain evidence. At a hearing on the motion, Officer Larry Layman testified that on June 2, .1989, he responded to a call from a savings and loan in the Northwoods Mall. The manager told him that a young boy had recently entered the savings and loan with about $1,000 in small bills and exchanged them for larger bills. The officer watched a videotape of the boy, who appeared to him to be about 12 or 13. years old. Subsequent evidence showed that D.G. was 13 years old at the time of the offense.

The officer testified that he then began searching the mall parking lot for the boy. After a few minutes, he saw D.G. walking with another boy. D.G. was carrying four large Toys “R” Us shopping bags, and his companion was carrying one Toys “R” Us bag. In the officer’s judgment, the minor’s attire suggested that he did not have enough money to pay for a large number of toys.

The officer stated that he drove alongside the two boys and told them to get into the car. As D.G. entered the car, he placed his wallet inside his waistband. Officer Layman asked him where the money was, and D.G. said that he did not have any. The officer then told D.G. to hand over his wallet. After D.G. did so, Layman noted that there was about $420 inside. D.G. told him that he had stolen the money from his grandmother. He later admitted to the police that he had stolen the money from a video arcade. The arcade verified that the money had been stolen.

The trial court found that the officer had probable cause to arrest the minor when he told him to enter the car. Consequently, it denied the motions to quash the arrest and suppress evidence. The court granted a separate motion to quash statements made before the minor received Miranda warnings. Later, it found that the minor had violated his probation.

On appeal, the minor argues that the trial court erred in denying his motions to quash the arrest and suppress evidence. He contends that the officer performed either a Terry stop or an arrest when he told D.G. to enter the car and began questioning him. The minor submits that in either case, the officer lacked sufficient grounds to make a stop.

We shall first determine whether the encounter was a Terry stop or an arrest. In a Terry stop, a police officer may detain the suspect for a reasonable period of time and, if he believes he is in danger of attack, search for weapons. (People v. Vena (1984), 122 Ill. App. 3d 154, 460 N.E.2d 886.) A person is arrested when a reasonable man, innocent of any crime, would conclude that under the circumstances he is not free to leave. (People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640.) Since the instant officer ordered D.G. to enter his squad car, asked him where the money was, and ordered him to hand over his wallet, we find that the officer went beyond the bounds of a Terry stop and performed an arrest when the minor entered the car.

In order for the officer to have properly arrested the minor, he must have had probable cause. (People v. Peak (1963), 29 Ill. 2d 343, 194 N.E.2d 322.) Probable cause to arrest exists when the facts within the officer’s knowledge would warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime. (Peak, 29 Ill. 2d at 348, 194 N.E.2d at 325.) Moreover, a trial court’s finding that an officer had probable cause to arrest will not be disturbed on review unless it was manifestly erroneous. See People v. Ross (1985), 133 Ill. App. 3d 66, 478 N.E.2d 575.

According to the record, the 13-year-old minor entered a savings and loan with a large amount of money and asked that it be converted to larger bills. Soon afterwards, the officer spotted him carrying four large shopping bags filled with toys. In the officer’s judgment, the minor’s attire suggested that he did not have enough money to buy a large number of toys. Based on the foregoing, the officer could have reasonably concluded that the minor had committed a crime. The trial court therefore did not manifestly err in denying the motions to quash the arrest and suppress evidence.

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

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

D.G., a 13-year-old boy, converted approximately $1,000 in small bills to large bills at a savings and loan institution located in Northwoods Mall in Peoria, Illinois. Savings and loan personnel notified police of the boy’s actions and, after viewing the institution’s videotape of the boy, police proceeded to look for him in the vicinity. Officer Layman noticed D.G. in the mall parking lot carrying two large Toys “R” Us bags and requested that he and another boy get into the squad car. Layman noticed D.G. putting a wallet in the waistband of his pants and asked him to hand over the wallet. D.G. responded that he did not have any more money. However, Layman took the wallet and counted $420. Layman proceeded to transport the boys to the station and question them without Miranda warnings. D.G. informed Layman that he had stolen the wallet from his grandmother.

Once at the station, D.G. was again questioned without Miranda warnings, and he told Officer Baer that he found the wallet outside Jimmie’s Lock Shop. Baer transported D.G. to the site where he supposedly found the money, and at that time gave him the Miranda warnings, explaining in his own words that D.G. did not have to talk to him if he did not want to, that what he said could be used by a judge to find him guilty, and that he could have a lawyer present if he wanted. Baer testified that D.G. said he understood, but wanted to talk and had nothing to hide. Later, back at the station, D.G. confessed to having taken the money from a video arcade.

The trial court granted D.G.’s motion to suppress statements made prior to the Miranda warnings, but denied a motion to quash the arrest and suppress the evidence. The trial court found that the police had probable cause to arrest D.G. based on the fact that a young boy was in possession of such a large amount of money. D.G. was found guilty of violating his probation and sentenced to five days in the juvenile detention center and 18 months’ probation. On appeal, the minor contends that the trial court erred in denying his motion to quash arrest and suppress evidence. The majority holds that the police officer could have reasonably concluded that the minor had committed a crime and, therefore, had probable cause to perform the arrest. I respectfully dissent.

Because the actions of the police officer went beyond those of a Terry stop and constituted an arrest, probable cause must have existed in order for this arrest to stand. (People v. Peak (1963), 29 Ill. 2d 343.) Although the majority correctly define probable cause in Illinois, their interpretation that the circumstances of this case fall within the same is incorrect. At the point of arrest, the police officer had nothing more suspicious than a report of a young boy with a large amount of money whom he observed carrying bags of toys through a mall parking lot in daylight. This does not constitute a reasonable belief that a crime had been committed. In this instance, Officer Layman was acting on mere suspicion or, more correctly, a hunch.

Probable cause to arrest exists when the facts and circumstances within an arresting officer’s knowledge are sufficient to warrant a man of reasonable caution the belief that a suspect has committed or is committing a crime. The facts and circumstances in this case are insufficient to support that inference. Accordingly, I dissent.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. ROBERT A. JOHNSON, Petitioner-Appellee.
    Third District
    No. 3—90—0125
    Opinion filed September 7, 1990.

      Kevin W. Lyons, State's Attorney, of Peoria (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Kim Kelly, of Peoria, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The petitioner, Robert A. Johnson, filed a petition to rescind the statutory summary suspension of his driver’s license. The trial court granted his petition, and the State appeals. We affirm.

The record reveals that on October 14, 1989, the petitioner was issued a citation for driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a)(2)). He was also served with a notice of summary suspension based upon his refusal to submit to a breathalyzer test (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1). On November 22, 1989, the petitioner filed a petition to rescind his summary suspension and a petition for a judicial driving permit (JDP).

A hearing was subsequently set for December 6, 1989, on the petition for a JDP. No hearing was set for his petition to rescind the summary suspension.

On January 4, 1990, the petitioner filed a motion to strike the statutory summary suspension, alleging that the clerk of the circuit court had failed to set a hearing on his rescission petition within 30 days as required under section 2—118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 2—118.1(b)). Following a hearing on the motion, the trial court found that since no hearing date was set within 30 days, the petitioner’s summary suspension must be rescinded.

The State argues on appeal that the trial court erred in concluding that it was the prosecutor’s or the clerk’s responsibility to set the hearing date.

Section 2 — 118.1(b) of the Illinois Motor Vehicle Code provides in relevant part:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11—501, *** the hearing shall be conducted by the circuit court having jurisdiction.” Ill. Rev. Stat. 1989, ch. 95½, par. 2— 118.1(b).

Initially, we note that a petitioner seeking rescission of his summary suspension bears the burden of proceeding and the burden of proof. (People v. Joiner (1988), 174 Ill. App. 3d 927, 529 N.E.2d 268.) Once a hearing to rescind the suspension is requested, it must be held within 30 days of the request. This 30-day period is mandatory, the legislature having determined that this time period constitutes a prompt hearing under the due process requirements. (In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.) Failure to hold a hearing within the required 30 days violates the driver’s due process rights. The only appropriate remedy is to require the rescission of his suspension. Trainor, 156 Ill. App. 3d at 922, 510 N.E.2d at 617.

In the instant case, it is undisputed that the petitioner did not receive a hearing within the 30-day period. The State argues, however, that the burden was on the petitioner to secure a hearing date. We do not agree.

The petitioner filed the petition to rescind his summary suspension with the clerk of the circuit court and the trial court. A copy was also sent to the State’s Attorney’s office. The sufficiency of the petition is not in dispute. We find that the petitioner met the initial filing requirements.nf section 2 — 118.1 and thus fulfilled his burden of proceeding with the petition. Once those requirements were met, the burden shifted to the State to ensure that a hearing date was set within 30 days. The State did not meet its burden. Therefore, the failure to hold a hearing within 80 days violated the petitioner’s due process rights and the trial court had no alternative but to rescind his summary suspension.

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

Affirmed.

GORMAN and SCOTT, JJ., concur.


author: JUSTICE SCOTT JUSTICE STOUDER,

text:
    DESIREE L. McCAMMANT, f/k/a Desiree L. Guerrero, Plaintiff-Appellant, v. RICHARD W. McCARTHY, as Ex’r of the Estate of Raymond F. Traphagen, Defendant-Appellee.
    Third District
    No. 3—89—0627
    Opinion filed September 11, 1990.

      STOUDER, J., specially concurring.
    Mark A. Woollums, of Davenport, Iowa (James M. Hood, of counsel), for appellant.
    Bozeman, Neighbour, Patton & Noe, of Moline (John V. Patton, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff-appellant, Desiree L. McCammant (Plaintiff), appeals from an order dated September 13, 1989, wherein the trial court dismissed Plaintiff’s personal injury action against defendant-appellee, Richard W. McCarthy, executor of the estate of Raymond E Traphagen (Defendant), as being barred by the statute of limitations. The trial court further determined that Plaintiff’s second amended complaint failed to allege facts sufficient for establishing estoppel against defendant. The procedural issue on appeal is whether the trial court erred in dismissing Plaintiff’s amended complaint.

On January 23, 1987, Plaintiff, while driving a car, was struck by a car operated by Raymond F. Traphagen (Traphagen). Plaintiff filed suit against Traphagen on January 19, 1989, alleging Traphagen’s negligence as the proximate cause of the injuries she sustained as a result of the accident. Traphagen, however, passed away on February 17, 1988. Plaintiff then went through the process of reopening Traphagen’s estate, and Defendant, as executor of Traphagen’s estate, was served with summons in April of 1989. Defendant filed a motion to dismiss on May 11, 1989, claiming the suit was barred by the statute of limitations and Plaintiff alleged no facts supporting an estoppel theory. Plaintiff filed a resistance to Defendant’s motion and further moved to file a second amended complaint setting forth three pages of allegations and attaching thereto an affidavit of Plaintiffs attorney as support for her estoppel theory.

In her second amended complaint and attached supporting affidavit, Plaintiff alleged that: On September 9, 1987, Plaintiff’s attorney received a letter from Carol Majors (Majors) of Allstate Insurance Company (Allstate) indicating she was handling the claim against Allstate and Traphagen; on January 27, 1988, Plaintiff’s attorney contacted Allstate regarding settlement and was subsequently contacted by Joyce King (King), who indicated she would be handling the case and that she would need a certain itemized medical bill prior to any settlement; Plaintiff’s attorney experienced difficulty in obtaining the requested itemized medical bill and relayed this information to Majors; on June 9, 1988, Plaintiff’s attorney sent an itemized medical bill to King; on June 15, 1988, King wrote Plaintiff’s attorney requesting a new report from Plaintiff’s doctor; on December 8, 1988, King sent Plaintiff’s attorney a check for $7,000 as settlement which was rejected by Plaintiff in late December of 1988 or early January of 1989; King indicated that $7,000 as high as Allstate would go to settle the case; Traphagen had passed away on February 8, 1988; no one from Allstate informed Plaintiff’s attorney that Traphagen had died; when it became obvious suit would be filed, King lead Plaintiff’s attorney to believe that Traphagen was alive and residing in Rock Island, Illinois, by telling him where to serve Traphagen; Plaintiff’s complaint was filed against Traphagen on January 19, 1989; Plaintiff’s attorney was informed on January 27, 1989, that Traphagen had died; during the first part of February 1989, Plaintiff’s attorney was contacted by King wherein Plaintiff’s attorney informed King her insured had died in response to her question about whether the complaint had been filed; King informed Plaintiff’s attorney she did not know who was the executor of Traphagen’s estate but advised that there was a procedure for getting service upon Mr. Traphagen through the Secretary of State’s office.

On appeal, Plaintiff argues only the' estoppel issue. Thus, the substantive question to be answered is whether the facts as .alleged in Plaintiff’s complaint and supporting affidavit are sufficient to equitably estop Defendant from asserting the statute of limitations as a defense. In Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885, the Illinois Supreme Court outlined the elements of equitable estoppel as follows:

“First; there must be words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts. Second, the party against whom the estoppel is alleged must have had knowledge at the time the representations were made that the representations were untrue. This knowledge need not be actual but may be implied; misrepresentations made with gross negligence can form a basis for equitable estoppel. [Citation.] Third, the truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time that the representations were made and at the time that they were acted on by him. Fourth, the party estopped must intend or reasonably expect that his conduct or representations will be acted upon by the party asserting the estoppel or the public generally; the conduct and representations must be such as would ordinarily lead to the results complained of. [Citations.] Fifth, the party claiming the benefit of the estoppel must have in good faith relied upon the misrepresentation to his detriment. It has been said that this reliance must be reasonable, and that a party claiming estoppel cannot have acted improvidently. [Citation.] While this is true as a general rule, it is also true that if the party alleged to be estopped is guilty of actual intentional deceit and he reasonably expected his deceptive statements or conduct to be relied upon, he is in no position to contend that the party acting upon his deception was negligent in doing so. This is consistent with the principle that one guilty of fraudulent misrepresentation cannot assert that the person defrauded was negligent in failing to discover the truth. [Citations.] The sixth requirement is that the party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party is permitted to deny the truth thereof.” Vaughn v. Speaker (1988), 126 Ill. 2d 150, 162-63, 533 N.E.2d 885.

Plaintiff argues that Allstate, acting through King, misrepresented that its insured was alive and that the case would be settled upon receipt of certain doctor’s reports and other medical records. We find no merit to Plaintiff’s claim that King led Plaintiff’s attorney to believe Traphagen was alive. The second amended complaint alleged, in fact, that Plaintiff’s attorney advised King of Traphagen’s death. Although King may have advised Plaintiff’s attorney where Traphagen lived prior to the initial complaint being filed, no inference can be drawn that King knew of and knowingly concealed Traphagen’s death at that time. Moreover, there is no affirmative obligation imposed upon an insurance company to monitor the status of its insured and notify claimants of the insured’s death (Vaughn v. Speaker, 126 Ill. 2d 150, 533 N.E.2d 885). Nor do we believe that King made any statements above and beyond typical negotiation which were calculated to lull Plaintiff or her attorney into a false sense of security that the case would be settled. In Vaughn, the court stated that an insurance company’s concession of liability and payments made during the negotiation process may create a reasonable belief on the part of a plaintiff that a claim will be settled. None of these factors, however, are present in this case. The $7,000 check directed to Plaintiff’s attorney and subsequently rejected was nothing more than a settlement offer. It was not a concession of liability nor was it an interim payment. Simple negotiation between a claimant and an insurance company does not work to estop the insurance company from insisting upon strict statutory requirements. Dickirson v. Pacific Mutual Life Insurance Co. (1925), 319 Ill. 311.

In short, assuming all of the allegations contained within plaintiff’s second amended complaint and attached affidavit are true, there is nothing to indicate that Defendant is estopped from asserting the statute of limitations as a bar to Plaintiff’s claim. The decision of the trial court is therefore affirmed.

Affirmed.

HEIPLE, J., concurs.

JUSTICE STOUDER,

specially concurring:

While I agree with the majority and find Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885, conclusive on the issue presented, I write separately to express my concerns with the outcome. Either by statute or otherwise, plaintiffs in McCammant’s position should be afforded some form of relief from the normal operations of the statute of limitations. In our mobile society, more often than not plaintiffs and defendants do not live in the same community. Hence, plaintiffs are unlikely to hear of a defendant’s death. Also, since the insurance company is the real party in interest in these actions, if the action is filed wdthin the statute of limitations, the insurance company’s knowledge should be attributable to the executors of the decedents’ estate. In this type of case, neither the plaintiff nor his attorney has any reasonable or practical way of monitoring the defendant’s life or death. Consequently, the application of the statute of limitations, as in this case, produces an unfair result without any benefit to the legal system.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    RICHARD LEONARD, Plaintiff-Appellant, v. PITSTICK DAIRY LAKE AND PARK, INC., Defendant-Appellee.
    Third District
    No. 3-88-0780
    Opinion filed September 13, 1990.

      STOUDER, J., specially concurring.
    Peter F. Ferracuti, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa (Mark A. Schindler, of counsel), for appellant.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle (T. Donald Henson, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Richard Leonard filed suit against Pitstick Dairy Lake & Park, Inc., the owner of the commercial swimming beach in La Salle County where Leonard incurred a spinal cord injury rendering him a quadriplegic. The complaint alleged that defendant was negligent in permitting plaintiff, a 15-year-old untrained diver, to dive in the shallow or wading area of the lake and in failing to warn plaintiff of the danger of diving in shallow water. The case proceeded to trial before a jury, and a verdict was returned in favor of defendant. On appeal, this court reversed and remanded the cause for a new trial. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 464 N.E.2d 644.) At the conclusion of the retrial, a verdict was again returned in favor of defendant. Plaintiff appeals from the judgment entered on that verdict.

According to the evidence presented during the trial involved in this appeal, plaintiff was 15 years old on June 14, 1979, when he and a group of friends went to Pitstick Lake for the first time that summer. Intending to swim out to the raft in the deep water, plaintiff went down the beach to the water’s edge where he tested the water with his feet and discovered that it was cold. He then trotted into the water about one-half the distance to the cable which separated the shallow water from the deep water. He put his hands out in front of his body and dived forward into the water. First his fingers and then his head hit the bottom, forcing his chin into his chest and causing a pain in his neck. He then realized that he was facedown in the water, and he was unable to move.

He was pulled from the water and taken immediately to a hospital. After extensive treatment and therapy, plaintiff now lives at home. He cannot care for himself. With the assistance of his parents, he was able to complete high school and two years of computer science at Illinois Valley Community College, but he has not found employment.

Pitstick Lake is an artificial body of water approximately 300 feet by 200 feet with beach areas on both the north and south sides. The bottom of the lake slopes gradually from the beaches to a depth of about 11 feet in the center. At a depth of about four feet, a cable separates the swimming and diving area from the wading areas. At the time of the accident, two floats and a tower diving board were located in the central portion. The depth was about 8V2 feet in the vicinity of the floats.

There were no signs warning of the danger of diving in shallow water, and the lifeguards at the beach were never instructed to prohibit shallow water diving. One of the lifeguards on duty the day of plaintiff’s injury testified that the lifeguards themselves had performed “run and plunge” dives in the wading area while engaged in recreational swimming. She also testified to one instance when she had struck her head on the bottom, twisting her neck and causing her to somersault in the water, after which she never again performed a running dive in shallow water.

Plaintiff introduced expert evidence setting forth the danger of spinal cord injuries caused by diving in shallow water. The lifeguards employed at defendant’s beach had received instruction based upon the contents of the American Eed Cross lifesaving manual, which advises that the run-and-plunge dive in shallow water should only be performed by trained lifeguards as a lifesaving technique. Plaintiff also introduced regulations of the Illinois Department of Public Health and Safety which require shallow wading areas to be separated from the swimming and diving areas by lines securely anchored and buoyed.

Plaintiff’s expert witness testified that, in her opinion, diving in shallow water is unsafe. She explained that a young swimmer of plaintiff’s age, untrained in diving, may tuck his head down as he enters the water in a shallow dive. Since his body will follow his head, the shallow dive becomes a “vertical plunge,” and the head may strike the bottom with considerable force. She also stated that defendant should have prohibited diving in the shallow or wading area, that signs to that effect should have been posted to warn of the danger, and that lifeguards should have been specially trained to enforce the prohibition. Plaintiff’s treating physician also testified that, in his opinion based upon the hundreds of diving injuries he had treated, a horizontal type dive in shallow water was an unsafe practice.

Defendant presented evidence that Ed Pitstick, owner of defendant corporation, and James Farson, lake manager for defendant, had never prohibited diving in shallow water. Farson stated that he had read that such diving was a common cause of spinal cord injuries, but Pitstick testified that he was not aware of the danger from shallow water diving.

The only other defense witness was Joe Haywood, the current manager of Pitstick Lake. He had been employed as a lifeguard at the beach from 1974-76 and was beach manager in 1977. In 1979 he was a lifeguard instructor in Ottawa who trained some of the lifeguards on duty the day of plaintiff’s accident. Haywood testified for defendant that he had never prohibited a run-and-plunge dive, that the owner (Ed Pitstick) made the rules at the beach, and that shallow water dives were never barred at Pitstick Lake. On cross-examination, Haywood stated that he knew such dives were not recreational dives and were only to be performed by persons trained in lifesaving techniques. He had trained lifeguards to keep their heads up when making such dives.

Of critical importance to the disposition of this appeal is the trial court’s refusal to give plaintiff’s instructions on comparative fault. Plaintiffs’ instruction No. 15 is as follows:

“It was the duty of the Plaintiff, before and at the time of the occurrence, to use ordinary care for his own safety. The failure of a person to use ordinary care for his own safety is known as contributory negligence.
Plaintiff’s contributory negligence, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the • amount of his negligence. This is known as comparative negligence.”

Plaintiff also tendered instruction No. 17:

“A minor is not held to the same standard of conduct as an adult. When I use the words ‘ordinary care’ with respect to the Plaintiff, I mean that degree of care which a reasonably careful child of the age, mental capacity and experience of the Plaintiff would use under circumstances similar to those shown by the evidence. The law does not say how such a child would act under those circumstances. That is for you to decide.”

When plaintiff offered these two instructions along with several others pertaining to comparative negligence, defendant objected on the ground that the issue of comparative fault was not an issue in the case.

The state of the pleadings at the time of this trial is not clear from the common law record before us. Before the first trial of this cause, defendant had pleaded the contributory negligence of plaintiff as its first of three affirmative defenses, in the following words:

“That before and at the time of the occurrence alleged in plaintiff’s complaint, the plaintiff was negligent in one or more of the following respects:
(a) He negligently and carelessly dived into a portion of the lake which he knew or should have known was shallow water and which would likely cause injury.
(b) He improperly dived into the shallow water of the lake, with a trajectory which brought his head and neck into contact with the lake bed.
That the negligence of the plaintiff caused or contributed to cause the injuries complained of and consequently his negligence should be compared to that of the defendant.”

Prior to the first trial, the trial judge then presiding granted a motion by plaintiff to strike defendant’s other affirmative defenses.

The record before us is unclear as to whether the court intended to strike the first affirmative defense as well as the other two. There were no changes in the pleadings prior to the trial which is the basis of this appeal.

At the conference on instructions during the instant trial, the trial court stated that it believed there was no affirmative defense of comparative negligence pleaded, and if there was, defendant had the right to withdraw it. The trial court then ruled that the comparative negligence instructions offered by plaintiff would not be given. On appeal, plaintiff argues that the trial judge’s ruling was based upon the mistaken belief that the affirmative defense of plaintiff’s negligence had been stricken much earlier by a different judge. In its brief filed in this court, defendant has stated that the affirmative defense of plaintiff’s negligence was not withdrawn until the conference on instructions. Thus, defendant agrees with plaintiff’s assertion, but also points out that the trial court ruled that defendant was entitled to withdraw the issue of plaintiff’s negligence from the case if it so desired.

Plaintiff seeks a new trial on the ground that defendant argued that the injury was caused solely by plaintiff, that defendant introduced evidence tending to establish plaintiff’s fault, that defendant should not have been allowed to withdraw an affirmative defense at the close of all the evidence, and that it was error to refuse to give comparative negligence instructions under these circumstances.

Section 2—613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d)) provides:

“The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, *** and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, *** in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” (Emphasis added.)

The italicized portion of the above statute was added in 1985, long before the 1988 trial involved in this appeal. Because of that provision, it was necessary that defendant plead plaintiff’s negligence as a defense even though contributory negligence is no longer an absolute bar to recovery but rather goes only to the diminution of damages. (La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417; Lee v. Louisville & Nashville R.R. Co. (1953), 349 Ill. App. 276, 110 N.E.2d 691.) In the absence of the required pleading, defendant’s attorney should not have argued to the jury, as he did, that plaintiff’s injury was solely the result of plaintiff’s own conduct. Given the arguments and evidence already before the jury, it was error to allow defendant to withdraw the defense of plaintiff’s negligence at the instruction conference.

Furthermore, the law of Illinois also provides that a “litigant is entitled to have the jury instructed on the issues presented, the legal principles to be applied, and the facts that must be proved to support a verdict.” (Gaskin v. Goldwasser (1988), 166 Ill. App. 3d 996, 1009, 520 N.E.2d 1085.) In Gaskin v. Goldwasser, a dental malpractice case, the trial court dismissed defendants’ affirmative defense of contributory negligence at the close of all the evidence but refused to give an instruction concerning the evidence the jury had heard relating to plaintiff’s poor oral hygiene and general neglect of his teeth. The reviewing court ruled that defendants failed to prove plaintiff’s negligence was the proximate cause of his injury, but that the evidence of plaintiff’s dental condition before and after surgery could be considered in determining the amount of damages. Since the evidence of plaintiff’s negligence was for a limited purpose and might mislead the jury, it was ruled that the jury should have been instructed as to the purpose of that evidence.

A similar result was reached in Lee v. Louisville & Nashville R.R. Co. (1953), 349 Ill. App. 276, 110 N.E.2d 691, a case involving comparative negligence under the Federal Employers’ Liability Act (FELA) (45 U.S.C.A. §51 et seq. (West 1988)). There, as in the case at bar, defendant denied any negligence and alleged that plaintiff’s injuries were the proximate result of plaintiff’s sole negligence. The trial court’s refusal to give defendant’s instruction on the effect of contributory negligence in minimizing damages was ruled erroneous since plaintiff’s own testimony was sufficient to support an inference of some contributory negligence. Since it was important that the jury be properly instructed, failure to do so was held to be reversible error.

In the case before us, the determinative question is whether there was sufficient evidence and argument by counsel to confuse the jury as to the legal implication of any negligence on the part of plaintiff. During opening argument, plaintiff’s counsel stated that the evidence would show that a shallow water dive is unsafe and should not have been permitted by defendant corporation. Defendant’s counsel then argued that the accident was not caused by any negligence of defendant but was the result of plaintiff engaging in a dive “when he should not have done so.” Defendant’s counsel later concluded opening argument by saying, “The cause of this accident was Rick Leonard who, knowing the depth of the water at the moment he left his feet, dived into the water and struck his head on the bottom.”

During the trial of this case, defendant pursued the latter point by eliciting from plaintiff during cross-examination a statement that plaintiff knew how deep the water was when “he left his feet.”

In closing argument, plaintiff’s counsel attempted to explain this evidence by stating:

“Now, counsel’s going to argue first of all, he’s going to try to contend that permitting this dive is not negligence. That this was a safe dive. And then I think he’s going to argue that in any event, that was not the proximate cause of the young man’s injury. *** Would you say that Rick Leonard was negligent cause he hit his head on the bottom because he did not make a perfect dive? He made an imperfect dive.
You know, it kind of reminds me of a Sunday golfer or an infrequent golfer. And one of the commonest problems when you hit a golf ball with a driver is you result in a slice. Now, I’m sure none of you would say as to that golfer, when you hit that slice you were negligent. You didn’t use reasonable care. I know people that address a ball, study it, may even read books before they even try to hit a golf ball and practice but they end up hitting slices. That’s not negligence. That’s not a failure to use reasonable care. It’s just a lack of skill.
Rick Leonard had a lack of skill. They knew it and they permitted this dive.”

This argument was an attempt by plaintiff’s counsel to dispel the impression that Rick Leonard’s negligence was the proximate cause of his injury, an impression implicit in defense counsel’s opening argument and in his emphasis on plaintiff’s knowledge of the depth of the water at the time of his dive. During closing argument, defense counsel discussed a safety manual which had been admitted into evidence, saying:

“[I]t talks about safety practices, Personal Water Safety, which applies to *** the swimmer or the diver. You know what it says there? It says dive only into known waters of sufficient depth. At any given time, Rick Leonard knew the depth of that water. That was known water to Rick Leonard.”

The jury could only be confused as to the legal effect of the evidence and arguments relating to plaintiff’s fault in diving too deeply into water, the depth of which he knew. The trial court erred when it refused to instruct the jury that under the law of Illinois, evidence of plaintiff’s negligence does not bar liability but only goes to the reduction of damages.

Defendant insists that the failure of the trial court to instruct the jury concerning the evidence of plaintiff’s negligence could not affect the outcome of the case because the jury, answering a special interrogatory, expressly found that defendant was not guilty of negligence which proximately caused plaintiff’s injuries. However, we have ruled above that the jury could not have properly determined the legal effect of the evidence before it because of the confusion resulting from the inadequacy of the instructions given. The special interrogatory must, of course, be considered together with the other instructions to the jury by the court. (Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 454 N.E.2d 754.) The omission of comparative negligence instructions was not “cured” when the jury answered the special interrogatory in defendant’s favor.

Although not argued on appeal, we believe another substantial and prejudicial error occurred in the instruction of the jury when plaintiff was compelled to withdraw his instruction No. 17 (quoted above) following the court’s refusal to instruct as to comparative negligence. The trial court said it would give instruction No. 17, which set forth the diminished standard of conduct required of a minor in the exercise of “ordinary care.” However, plaintiff withdrew the instruction because instruction No. 17 without the comparative negligence instructions would suggest the possibility of plaintiff’s negligence but would not guide the jury as to the limited consequence of such negligence. Plaintiff was between the proverbial “rock and a hard place.” As a result, the jury was uninstructed as to the reduced degree of care to be used in judging the conduct of minors.

Ordinarily, a reviewing court will not comment upon errors which were not raised in the trial court or preserved for appeal, but where the interests of an injured minor are involved, circuit courts and courts of review have a special duty to take notice of any substantial irregularity whenever it first becomes apparent in the proceeding. In re Marriage of Adams (1990), 133 Ill. 2d 437; Blakely v. Johnson (1976), 37 Ill. App. 3d 112, 345 N.E.2d 814; Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 334 N.E.2d 391.

Also concerning plaintiff’s minor status, we made very clear in the first Leonard v. Pitstick decision that the law of Illinois requires adults to use extra care and additional vigilance where the safety of minors is involved as compared to the care required for the safety of adults. In Miller v. Veterans of Foreign Wars (1965), 56 Ill. App. 2d 343, 206 N.E.2d 316, a 14-year-old child was injured when he jumped from a stage and landed astraddle an open door leading to storage space beneath the stage. The court recognized an obligation imposed on adults to exercise more vigilance and caution for the safety of a minor than would be sufficient with respect to an adult, and stated:

“ ‘[Cjonduct which might reach the standard of ordinary care with respect to an adult might in the case of a child amount to negligence or even gross negligence.’ [Citation.] *** ‘(T)he law recognizes the lack of judgment, caution and discretion which exists in children and requires adults to take notice of these tendencies and conduct their business with that in view so as reasonably to guard against injury to them.’ ” 56 Ill. App. 2d at 347-48, 206 N.E.2d at 319, quoting 28 Ill. L. & Prac. Negligence §28 (1957).

In cases involving trespassers, Illinois courts have recognized a duty on the part of owners or occupiers of land to protect children from injury where they would not appreciate the risk. We summarized the applicable law in Ford v. Wilson (1989), 184 Ill. App. 3d 374, 376-77, 540 N.E.2d 1, a case involving a 13-year-old plaintiff injured while entering shopping mall property from a bicycle path where the approach was obscured by weeds and shrubs. There we said:

“Generally, the owners or occupiers of land are under no duty to keep their premises in any particular state or condition to promote the safety of persons who come upon the premises without express or implied invitation. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) An exception exists, however, where: (1) the owner or person in possession knows or should know that young children habitually frequent the premises; (2) a dangerous condition is present on the land; (3) the dangerous condition is one that is likely to cause injury to the children because they, by reason of their immaturity, are incapable of appreciating the risk involved; and (4) the expense or inconvenience of remedying the condition is slight compared with the risk to the children. (Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.) In such cases, there is duty upon the owner or person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.) Foreseeability of harm to children is the cornerstone of liability. Corcoran, 73 Ill. 2d at 326, 383 N.E .2d at 180.”

If a landowner is responsible for preventing foreseeable harm to children who trespass upon the owners’ property, surely the owner must be even more responsible in the case of a minor invited to purchase a ticket and to swim at the owner’s public recreational beach facility.

In a very recent case involving an adult paralyzed as a result of diving into shallow water off a pier, the court ruled that, as a matter of law, the owner owed no duty to warn of the danger of paralysis to a reasonable adult because the risk was open and obvious. (Dowen v. Hall (1989), 191 Ill. App. 3d 903, 548 N.E .2d 346.) In that case, the court distinguished Ford v. Wilson and Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 464 N.E.2d 644, on the ground that Ford and Leonard involved questions of negligence in failing to warn of dangers not open and obvious to children, whereas Dowen was an adult held to know the dangers of striking one’s head during a flat dive into shallow water.

During the trial of the instant case, defendant argued before the jury that plaintiff was a trained swimmer, whereas the record on appeal indicates that plaintiff received about two weeks of beginning swimming instruction when he was in fourth grade. There is nothing in the record from which the jury could draw a valid inference that he knew that shallow water diving should be performed only by persons trained in lifesaving techniques, as was the testimony here. We think it obvious that this minor plaintiff had no actual knowledge of the risk involved in attempting a run-and-plunge dive; on the other hand, testimony of the manager employed by defendant corporation indicated that he was aware of the danger but nonetheless permitted beach patrons to engage in the kind of shallow dives performed here by plaintiff.

We note that no instructions were given to the jury concerning the duty to warn of unseen dangers imposed by the law of Illinois upon adults who are responsible for the safety of minors. However, we do not base our decision to reverse upon this omission.

Another error asserted by plaintiff is a ruling by the trial court which excluded evidence of subsequent similar accidents at defendant’s beach. According to the offer of proof, approximately one week after Rick .Leonard’s accident, another teenage boy suffered a fractured neck at Pitstick Lake while attempting a run-and-plunge dive in shallow water. About one year later, yet another teenage boy suffered a broken neck there as a result of a run-and-plunge dive in shallow water. Both of these latter accidents occurred at a different section of the beach than the place where plaintiff was injured, and in both cases, the boys did not suffer permanent paralysis. Plaintiff offered this evidence to show that to permit such dives in shallow areas is an unsafe practice, thereby responding to defendant’s theory that run- and-plunge dives were not dangerous.

The trial court excluded the evidence on the ground that evidence of subsequent occurrences is admissible to show the existence of a dangerous condition but subsequent accidents cannot be admitted to prove a dangerous practice. We consider this distinction to be a tenuous one. Defendant cites no cases which have so held.

A somewhat similar issue arose in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929, a case arising out of the collision of a train with decedent’s car on the tracks of a railroad crossing. The trial court had admitted testimony that the flasher lights at the crossing failed to operate on two occasions after the accident. The supreme court of Illinois ruled that this testimony was properly admitted for the limited purpose of rebutting the expert testimony of a defense witness who opined that it was impossible for the flasher system to malfunction.

An analogous situation was present here where evidence of subsequent accidents was offered after defendant elicited testimony that no shallow water diving accidents had previously occurred at Pitstick Lake, within the knowledge of manager Farson. Plaintiff had called Farson as an adverse witness under section 2— 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1102), which includes the following provision: “The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony ***.”

After plaintiff had completed his examination of Farson, defendant’s counsel asked Farson:

“Q. The question I have for you, Mr. Farson, at any time before June 14, 1979, were you aware of anyone having seriously injured themselves performing a dive in shallow water at Pit-stick Lake?
[Objection overruled.]
A. No.”

When plaintiff later sought to respond to Farson’s testimony with evidence of two subsequent accidents at Pitstick Lake, the trial court granted defendant’s motion in limine to bar any reference to subsequent accidents. Still later during the presentation of defendant’s case, owner Ed Pitstick was asked:

“Q. Ed, let me ask you this: at any time before June 14, 1979, had anyone to your knowledge hurt themselves doing the type of dive that you have heard Rick Leonard describe that he performed on that particular day?
A. No. No one has told me that.”

During closing argument, defendant’s counsel emphasized that no shallow water diving accident had ever been reported at Pitstick Lake and that defendant did not know such a common diving practice could be dangerous.

Although we do not hold that the trial court abused its discretion here, upon retrial, if defendant presents testimony of the absence of prior accidents from shallow dives, the court should consider admitting as rebuttal evidence the evidence of the occurrence of subsequent similar accident. Provided, of course, that the foundational requirements are met for the admission of such evidence (see Wiedemann v. Industrial Erectors, Inc. (1985), 137 Ill. App. 3d 47, 483 N.E.2d 990), it may be more fair to admit such testimony.

Plaintiff argues that the following evidentiary rulings were also erroneous:

1. Exclusion of certain State rules governing swimming pools which, plaintiff suggests, should apply to any artificial body of water.

2. Admission of evidence of the absence of any violations of State safety rules.

3. Admission of evidence that defendant corporation had no notice of any prior injuries at Pitstick Lake incurred in the course of shallow water diving.

4. Admission of evidence that defendant had a sign which prohibited running on the beach.

5. Cross-examination questions and closing argument comments by defendant’s attorney characterizing the lake as a “good operation.”

6. Admission of evidence that run-and-plunge dives were permitted at other swimming facilities.

7. Questions about signs at other facilities where the witness was not qualified as an expert on custom and usage.

It would needlessly lengthen this already long opinion to discuss each ruling in detail. We have examined each contention and find that each ruling was a matter within the sound discretion of the trial judge. Such issues must be considered within the context of the trial wherein they arise. In the context of the trial here before us, we cannot say that the trial court abused its discretion in any of the listed rulings, and we are not able to predict what factors will be present should they arise again upon retrial.

We reverse the judgment of the circuit court of La Salle County and remand this cause for a new trial in accordance with this opinion.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I concur in the majority’s holding that the instant case must be remanded for a new trial based on the failure of the trial court to give the tendered comparative negligence instruction. However, I must disagree with the court’s discussion concerning two collateral issues.

The majority states that “[N]o instructions were given to the jury concerning the duty to warn of unseen dangers imposed by the law of Illinois upon adults who are responsible- for the safety of minors.” (202 Ill. App. 3d at 827.) However, ever since Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, the liability of owners or parties in possession and control of premises upon which a child is injured has been determined with reference to the customary rules of ordinary negligence. (See generally Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) The fact that an adult is dealing with a child is part of the determination of what constitutes ordinary care under the circumstances. The issue of whether an adult should use greater care and vigilance where the safety of a minor is involved goes to the question of what constitutes ordinary care under the circumstances. It does not entail a different standard of care. I also note the Illinois Supreme Court Committee on Jury Instructions in Civil Cases recommends that no instruction be given on the care required for the safety of a child. (Illinois Pattern Jury Instructions, Civil, No. 10.07 (3d ed. 1990).) The majority’s reliance on Ford v. Wilson (1989), 184 Ill. App. 3d 374, 540 N.E.2d 1, is inapposite. Ford does not announce a contrary rule. The only issue in Ford was the sufficiency of the complaint on a motion to dismiss.

In addition, the majority implies that evidence of similar occurrences at the lake may be admissible without regard to whether it is offered as substantive evidence or as rebuttal. I do not find admission of subsequent occurrences as substantive evidence of negligence to be supported by the case law. The Illinois Supreme Court in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 382 N.E.2d 1217, upheld the admission of evidence which showed that flasher lights at a railroad crossing failed on two subsequent occasions. The evidence was held properly admitted for the limited purpose of rebutting the testimony of the defendant’s expert “who opined that it was impossible for the flasher system to malfunction.” In the instant case, the evidence of other incidents was not proffered to rebut the testimony of the defense witnesses. They were asked only about their knowledge of incidents occurring prior to June 14, 1979. Both witnesses denied prior knowledge and the offer of proof did not rebut this testimony. In any event, whether on retrial it would be proper rebuttal would de-pend on the precise testimony the rebuttal evidence was intended to refute, as well as whether the plaintiff has established an adequate foundation showing the relevance of the proffered rebuttal evidence. The majority concedes that the exclusion of this evidence was not an abuse of discretion, and I have great difficulty in finding a different result should be reached on retrial.

In any event, I view the majority’s discussion of these two issues as nothing more than dicta and unnecessary to the disposition of this case.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMERIT D. LINDBECK, Defendant-Appellant.
    Third District
    Nos. 3—89—0740 through 3—89—0742 cons.
    Opinion filed September 14, 1990.

      Hamm & Hanna, Ltd., of Peoria (Ronald L. Hamm, of counsel), for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant Emerit D. Lindbeck was charged with four counts of forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17—3), four counts of mutilation of election materials (Ill. Rev. Stat. 1987, ch. 46, par. 29—6) and one count of perjury (Ill. Rev. Stat. 1987, ch. 38, par. 32—2). The forgery and mutilation of election materials charges against the defendant stem from an April 7, 1987, election in which the defendant was the successful candidate for mayor of the City of Kewanee. The perjury charge arose from the defendant’s testimony in the subsequent grand jury investigation into the election. The charges were consolidated for trial. The defendant was tried before a jury and convicted on all counts. He was sentenced to concurrent 30-month terms of probation. He appeals his convictions. We affirm.

THE FORGERY AND MUTILATION OF ELECTION MATERIALS CONVICTIONS.

At the defendant’s trial, the State called Carol Peterson, the chief deputy clerk in charge of voter registration in Henry County. Peterson testified that about one month after the election she was advised by Reesa Van Raemdonk, an election judge, that the two absentee ballots belonging to Adrian and Betty Ball had been voted by person(s) other than the Balls. While investigating this allegation, Peterson also found two absentee ballots that had been improperly processed. These ballots, belonging to Patrick and Christopher Williams, had been voted since they were no longer in the envelopes, but had not been processed correctly. Peterson identified the Balls’ and the Williamses’ applications for absentee ballots, ballot envelopes and return envelopes.

Peterson further testified that the posting list, a record made when absentee ballots are sent out and returned, is a public document and that the defendant had examined the list once. She also testified that it is not necessary to return an absentee ballot if you decide that you do not want to use it. On cross-examination, Peterson testified that it is proper to assist someone in filling out the top of a ballot envelope.

Adrian and Betty Ball testified that in early 1987 they went to Florida and arranged with the mail carrier to leave their mail with Adrian’s mother. While the Balls were on vacation, Don Francis, a retired firefighter and a volunteer in the defendant’s campaign, sent them applications for absentee ballots which they filled out and returned around February 25, 1987. The Balls testified that People’s exhibits Numbers 1 and 4 were not the absentee applications that they had returned. On March 29, 1987, when they called Adrian’s mother, she told them that their ballots were at her house. Adrian told her to tear them up because there was insufficient time to use the ballots. The Balls testified that People’s exhibits Numbers 2 and 5, ballot envelopes and certifications for absentee ballots in their names, were not in their own handwriting and contained the wrong birthdates. The Balls did not give anyone permission to use their ballots.

Reesa Van Raemdonk testified that while serving as an election judge, she saw the Balls’ absentee ballots counted. Since Adrian’s mother had previously told Van Raemdonk that she had the Balls’ ballots and was unable to reach them, Van Raemdonk contacted Adrian’s mother to let her know that the ballots had been voted.

Van Raemdonk further testified that Adrian Ball asked her about the ballots a few days later. After her conversation with Adrian Ball, Van Raemdonk talked to Donald Francis. After this conversation, Van Raemdonk went to the defendant’s office. The defendant asked Bonnie Tomlinson to leave the office and told Van Raemdonk that he had the Balls’ ballots. The defendant indicated to Van Raemdonk that he had put them on the desk in his campaign office and did not know what had happened to them.

Don Francis testified that he obtained applications for absentee ballots for his son and the Balls from Leonard Holton, a candidate for the city council. The defendant was present when Francis received the applications. Francis filled out the writing on the applications for Adrian and Betty Ball and signed the Balls’ names. Francis indicated that the writing on People’s exhibit Number 4 does not look like his writing. On the Saturday prior to the election, Francis went to campaign headquarters. The defendant was the only person there and Francis told the defendant that Adrian Ball’s mother had called to advise that she had Adrian and Betty Balls’ ballots and there would be insufficient time to vote. The defendant instructed Francis to obtain the ballots from Adrian’s mother and the defendant would take care of turning them in. Later that morning, Francis obtained the ballots and brought them to the defendant.

Francis further testified that after the election Van Raemdonk called and indicated that the Balls’ ballots had been voted. Francis called the defendant with this information. The defendant told Francis that nothing like that had happened and someone was trying to cause trouble. Finally, Francis testified that his testimony before the grand jury had been untruthful and that he was testifying pursuant to a plea bargain arrangement arising from his involvement in the incident.

The evidence deposition of Reva Ball, Adrian’s mother, was admitted into evidence. The deposition indicated that before noon on the Saturday before the election, she gave Francis the sealed, absentee ballots of Adrian and Betty Ball.

Patrick and Christopher Williams testified. They testified that they signed applications for absentee ballots in 1987 but never received the ballots. They also testified that the dates of birth and signatures on the ballot envelopes and certifications were not their dates of birth and not their signatures.

Dale Williams, the father of Patrick and Christopher, testified that he worked as a campaign volunteer for the defendant in 1987. He testified that he had a small pad of absentee ballot applications and observed his sons sign applications. He turned the applications in to the defendant and Holton. When he received the sealed, absentee ballot envelopes for his sons, he put them in his briefcase and took them to campaign headquarters. The defendant was there. He threw the ballots on a table and told the defendant that at least they had two votes. The defendant picked up the ballots, put them in a desk drawer and said that he would take care of them. Dale Williams testified that he never saw the ballots again. Dale Williams also testified that his testimony before the grand jury had been untruthful and that his testimony in the instant case was part of a plea bargain arrangement stemming from charges filed against him in regard to this incident.

Dale Williams further testified that after he was indicted for his illegal activities, he discussed it with the defendant. He told the defendant that he would like to know who had signed his sons’ ballots and used incorrect birthdates. The defendant then asked him if he knew what he had done with the ballots and when he indicated that he did not, the defendant indicated that he had given them to the defendant.

Sergeant Steve Sottos of the Illinois State Police identified the defendant’s handwriting samples and the defendant’s “normal course of business writing” samples. Sottos further testified that on January 12, 1988, he interviewed the defendant and the defendant indicated that he received the Balls’ ballots from Francis. The defendant further indicated that he had helped 10 to 15 people fill out ballot envelopes but did not mention the Balls.

A post office supervisor testified that the Balls’ and Patrick Williams’ and Christopher Williams’ ballot envelopes were postmarked and cancelled in Galesburg. He also testified that the Balls’ ballot envelopes were mailed after 5 p.m. on Saturday, April 4, 1987, and before 5 p.m. on Monday, April 6,1987.

Charles Perrotta, a qualified document examiner, testified for the State. Perrotta compared the defendant’s handwriting exemplars and' “normal course of business writing” documents to the ballot envelope and certifications of the Balls and Williamses. Perrotta testified that the defendant wrote “Kewanee” on Patrick Williams’, Christopher Williams’ and Adrian Ball’s ballot envelopes. Perrotta also testified that the defendant probably prepared all the hand printing on those exhibits. Perrotta could not positively determine who prepared the signature on the ballot envelope of Christopher Williams because the signature was very badly distorted. The writing was not indicative of normal handwriting ability. However, based on the similarities between the defendant’s known handwriting and the signatures on the ballot envelope, the defendant could not be eliminated as a possible writer of Christopher Williams’ signature.

Perrotta further testified that the defendant’s initial known writing sample was of very poor quality. The writing in the sample appeared to be distorted. Perrotta was only able to make comparisons when he received the defendant’s “normal course of business writing” samples, which were not distorted.

In relation to these charges, the defendant testified that during the election he shared a campaign office with four other people running for city council positions. Everyone shared the desks at the headquarters, and there were 8 to 10 keys to the office in circulation. The candidates kept a stack of absentee ballot applications at the office.

The defendant further testified that Dale Williams came to the headquarters in March and stated “at least we got two votes if we don’t get any more.” The defendant testified that he did not look at the ballots but took them and put them on a desk. A few days later, the defendant filled out the top of the ballots so that he would know who the ballots belonged to and the boys (Christopher and Patrick) could sign them when they came home. The defendant further testified that he had not seen the boys’ original ballot envelopes in their present condition. He denied signing Patrick’s and Christopher’s names to the ballots, ballot envelopes or voting either of their ballots.

The defendant also testified that on the Saturday prior to the election, Francis came in with the Balls’ sealed absentee ballots. The defendant testified that although he did not presently recall writing on the Balls’ envelopes and ballots, he admitted that the writing on those items was his. The defendant denied signing the Balls’ names to the ballots, ballot envelopes or voting either of their ballots.

THE PERJURY CONVICTION

The State called Greg Johnson, who testified that he was the grand jury foreman in July 1988, when a vote fraud investigation began. Johnson administered an oath to testify truthfully to the defendant. Johnson further testified that the defendant was handed a number of ballot envelopes and also transparencies of a number of documents during his testimony before the grand jury. Johnson could not specifically recall which ballot envelopes were handed to the defendant.

The People and defendant stipulated that People’s exhibit 18 is a true and accurate transcript of the defendant’s testimony before the grand jury. During his testimony before the grand jury, the defendant related that he knew Don Francis and Adrian Ball. The defendant denied assisting the Balls in filling out their applications for absentee ballots.

Additionally, the defendant testified that when Francis returned the Balls’ ballot to him they were sealed. The defendant denied telling Francis that the ballots had to be turned in if they were not voted. The defendant further testified that when the ballots were missing from his desk on Monday he presumed that someone had taken them. The defendant was then shown a number of exhibits. He claimed that he had not seen the exhibits and was not familiar with the writing on the exhibits.

The People and defendant also stipulated as to the identity of the grand jury exhibits. The prosecutor then testified regarding the identity of some of the grand jury exhibits outside of the presence of the jury-

In response to the evidence presented by the State in relation to the perjury charge, the defendant testified that he was not advised as to the specifics of the grand jury investigation. He understood the investigation to be in regard to “irregularities of some kind” as to some absentee ballots voted in the election. During cross-examination, when confronted with the fact that he now recognized exhibits partially prepared by him when at the grand jury he denied recognizing those same documents, the defendant maintained that at the grand jury he was only looking at the handwriting on the exhibits rather than the handprinting. Additionally, the defendant alluded that the use of transparencies, rather than original documents, caused confusion as to what he did and did not recognize.

At the close of the State’s case in chief, the defendant moved for a directed verdict on all charges. The defendant’s motion for directed verdicts as to the forgery and mutilation of election materials charges was immediately denied. As to the perjury charge, the defendant argued that the questions asked of him at the grand jury were defective; claiming them to be ambiguous and confusing. The trial judge took that motion under advisement. Although the court eventually denied the motion, the defendant elected to begin presenting his defense prior to the pronouncement from the bench.

The defendant’s appeal raises three issues. Initially the defendant contends that the trial court erred in refusing to grant the defendant’s motion for a directed verdict on the perjury count. The defendant contends that the questions asked of him at the grand jury were fundamentally defective, that there wasn’t any proof that at the time the defendant made the statements he did not believe them to be true and that the questions were not material. Accordingly, the defendant argues that his motion for a directed verdict should have been granted. The defendant further contends that the denial of his motion for a directed verdict prejudiced him such that he should be granted a new trial on the counts of forgery and mutilation of election materials.

The State’s initial response is that the defendant waived any right to raise this claim on appeal. The State contends that because the defendant introduced evidence after the trial court took the defendant’s motion for a directed verdict under advisement, the defendant waived his right to a directed verdict. The State doesn’t cite any authority directly on point, but rather advances two cases in support of its position. See People v. Gokey (1974), 57 Ill. 2d 433, 312 N.E.2d 637 (a defendant waives any right to a directed verdict when he introduces evidence after the denial of his motion); People v. Clankie (1989), 180 Ill. App. 3d 726, 536 N.E.2d 176 (a defendant has the responsibility for obtaining rulings on his motions and his failure to do so constitutes a waiver of those issues on review).

We agree with the State that the defendant has waived this issue. When the defendant made his motion for a directed verdict as to the perjury charge and was advised by the trial court that it would take the motion under advisement, the defendant should have requested a recess to allow the trial court time to make a ruling. The effect of defendant’s failure to request a recess and continue with his defense was to afford him the opportunity to present his side of the story and obtain an acquittal on all charges. The defendant cannot now request this court to review the trial court’s decision regarding the motion for a directed verdict.

Moreover, we note that the defendant never moved to sever his perjury charge from the forgery and mutilation of election charges pursuant to section 114 —8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114—8). Accordingly, even if the trial court had erred in denying the defendant’s motion for a directed verdict, this fact would preclude the defendant from contending that he was prejudiced by having all the charges tried in one trial.

The defendant next contends that the State failed to establish his guilt of perjury, forgery and mutilation of election materials beyond a reasonable doubt. We disagree.

When presented with a challenge to the sufficiency of the evidence, it is not this court’s function to retry the defendant. The inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Once the defendant has been found guilty of the crime charged, the factfinder’s role, as weigher of the evidence, is preserved. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

We have reviewed the record and the arguments propounded by the defendant. We initially note that we find no merit to the defendant’s contention that the questions asked of him at the grand jury were fundamentally defective and' that the jury went against the manifest weight of the evidence in finding him guilty of perjury. We strongly reject the defendant’s suggested distinction between handwriting and handprinting. The questions asked of the defendant were simple, straightforward questions requiring a'simple answer. Our review of these questions, the transcript of the grand jury proceedings and the defendant’s testimony at trial leads us to the inescapable conclusion that the jury could conclude that the defendant deliberately lied when he indicated that he did not recognize certain documents that he himself had partially prepared. Accordingly, we find that ample evidence exists to support the jury’s finding of guilt as to the perjury charge.

As to the defendant’s other arguments, they focus on factual questions decided upon by the jury. A jury is not required to believe a defendant’s explanation for his conduct. (People v. Wiley (1988), 174 Ill. App. 3d 444, 528 N.E.2d 26.) We are of the opinion that there exists ample evidence to support defendant’s conviction as to the forgery and mutilation of election materials counts.

Lastly, the defendant argues that the trial court erred with respect to two evidentiary rulings. We find this issue to be without merit, and we decline to address it.

Accordingly, the decision of the circuit court of Henry County is affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.