author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL E. WOODROME, Defendant-Appellant.
    Fifth District
    No. 5—91—0227
    Opinion filed November 25, 1992.

      Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Michael Woodrome was convicted by a jury of first-degree murder and concealment of the homicidal death of Audie Wilson. He was sentenced to 50 years’ imprisonment on the murder, to run consecutively to five years’ imprisonment on the concealment of a homicidal death. Woodrome appeals. We affirm.

Paul Conklin testified that he and Audie Wilson, who are both 21 years old, went to a party at Bill and Sue Sturgill’s house on April 8, 1990. The party was outside at the Sturgill residence. People at the party were drinking beer by a bonfire. Conklin was at the party for approximately 45 minutes, and while there someone pointed a gun at him, pulled the hammer back, and told him to run. Conklin did not know it at the time, but there were no shells in the gun. Conklin did not know the person who pointed the gun, but he testified that it was not Michael Woodrome. Conklin left the party and went next door to his cousin’s home. Later Conklin returned to the party, but he did not stay because no one was outside by the bonfire and he could hear Bill and Sue Sturgill arguing.

Four other persons who were at the party testified. Linda Peach testified that she has known Bill Sturgill for 13 years and his wife for one year. That evening there were approximately 10 adults and Linda’s four children at the party. Linda testified that the adults spent the evening outside by the bonfire drinking beer, and her children were in the house watching television. Linda does not drink or take drugs, but she testified that all of the other adults were drinking beer and a few were smoking marijuana. She saw Audie Wilson arrive at the party with Johnny Foster and Lisa Patterson.

During the early evening Linda heard screams coming from the house. Linda went inside and saw Bill and Sue Sturgill arguing. She saw Bill throw a microwave oven onto the floor. Linda did not know what they were arguing about. Linda testified that she saw Sue Sturgill flirting with Audie and just about everyone that evening. Linda testified that later in the evening she saw Woodrome drag Audie Wilson by the hair of his head out of the house and into the garage. William “Chewy” Schofield and Bill Sturgill followed them into the garage. Linda did not go into the garage. Approximately 5 or 10 minutes later Wayne Peach, her husband, went into the garage. Linda testified that Wayne has a bad temper. After Wayne went into the garage with the others, Linda heard screaming and music coming from there. Approximately 10 to 15 minutes later Linda heard Audie Wilson say, “Please, please, no more.” Wayne came out of the garage and joined Linda by the bonfire. Wayne showed Linda his broken teeth from his false plate and told her that Audie Wilson hit him in the mouth. Wayne then told her that “they killed him.”

Later that night, while in the house, Linda saw Woodrome rinsing off a knife in the kitchen sink. It appeared to her that there was blood on the knife. Schofield was there too. Later she saw Sue Sturgill, Bill Sturgill and Woodrome leave in a pickup truck. Linda did not see them load anything into the truck.

When the three returned, Linda and her husband were outside by the bonfire. Linda testified that Woodrome and the Sturgills pulled a large piece of wood from the truck and threw it on the bonfire. Schofield and Woodrome changed their clothes and burned clothes and rags that appeared to have blood on them. Linda and most of the others spent the night at the Sturgill residence. Linda testified that she wanted to leave, but Wayne told her not to because if she left the others might come after her. Linda left early the next morning with her children because she and the children had to go to school.

Linda and Wayne Peach’s daughter, Christine, testified that there were approximately 12 to 15 people at the party that night. She did not witness a fight that evening, but at one point she did hear screams coming from the garage. Christine testified that she could not tell if the screams were from someone in pain or from someone just yelling. “It sounded like a bunch of people yelling and someone screaming.”

. Susan “Sue” Sturgill testified that while she knows who Woodrome is she is not personally acquainted with him. Sue Sturgill testified that there were about four cases of beer at the party that night. At one point Woodrome, Wilson, Schofield and her husband Bill were “horseplaying” in the kitchen. Sue asked Bill to tell them to stop before anything was broken. Bill and Sue then went into the bathroom and talked for about 20 minutes. Sue testified that she did not fight with her husband that day but that they had an argument or discussion. She denied that her husband became physical or that he threw the microwave oven onto the floor. Sue testified that after they left the bathroom she went upstairs by herself for 30 minutes. She then went outside to the fire and stood by Bill. Woodrome called to Bill to come into the garage. When Bill went into the garage, Sue went into the house. Approximately 10 minutes later she saw Bill outside by the fire. Bill asked Linda to back their pickup truck into the driveway. Linda backed the truck up to the closed garage and returned to the house.

Bill and Woodrome came into the house and told Sue that they wanted her to drive them to Mascoutah to purchase cigarettes and soda. Sue did not want to make the trip, but she did because neither Bill nor Woodrome was licensed to drive. The Sturgills live approximately four miles from Mascoutah. Sue testified that just outside Mascoutah the men asked her to pull over. She did not think this unusual because she thought one of them was getting sick from the drinking activities. Sue pulled over and the men got out of the truck and retrieved something out of the truck that was bundled up in a ball. They told her to go on to Mascoutah to buy cigarettes and soda and to pick them up on her way back. She testified that she did not know what the men were doing.

When Sue picked the men up on her way back from town, she asked them what was going on and they said, “Don’t worry about it, be cool, it will be cool.” They then told her it was Audie Wilson’s body. When the three of them returned to the party, Bill, Woodrome and Schofield asked her to get them a change of clothes. She did not see them throw anything on the bonfire except logs.

Sue Sturgill spoke with the police twice on April 12, 1990, and once on April 14, 1990. On cross-examination she admitted that she told the police the first time they questioned her on April 12 that she did not know when Audie Wilson left the party. When asked whether she lied to the police, Sturgill testified, “No, I did not know *** I did not know there was a body back there *** I don’t recall what I said to him.” Sue also admitted that it was not until April 14, 1990, that she advised the police that after returning from Mascoutah she was told that a body had been dumped. When they returned home from Mascoutah she went into her house, sat in the bathroom with her face in her hands and cried. She also told the police on April 14 that she noticed there was blood on the bathroom floor but thought it could have been from a female dog that was pregnant.

When asked on cross-examination whether she ever flirted with Audie Wilson, Sue replied, “No, sir. I’m married.” Sue denied that her testimony was given in an attempt to persuade the State to be lenient with her husband.

Bill Sturgill testified that he was 32 years old and that pursuant to plea negotiations with the State the first-degree murder charge against him had been reduced to second-degree murder. As part of his agreement with the State Sturgill promised to testify in this case. He testified that he had not yet been sentenced on his second-degree murder conviction.

Bill testified that he had known Audie Wilson for 3x/2 years. He has known Wayne Peach for 23 years, Michael Woodrome for about one year, and Schofield for approximately lx/2 months. He testified that Wayne Peach, Michael Woodrome and himself were all about 10 years older than Audie Wilson. Bill saw Audie Wilson arrive at the party with Paul Conklin. Bill testified that they started with 10 cases of beer at the party and that sometime during the evening they went out to purchase more beer. By morning all the beer was gone. Bill denies smoking marijuana that night. He testified that at any one time there were no more than 12 people at the party.

Bill Sturgill testified that he was intoxicated at the party, and he does not have a clear recollection of what happened that evening. He testified, however, that while he was outside by the fire he saw Woodrome drag Audie Wilson by the hair of his head into the garage. He does not know where Schofield or Wayne Peach was at the time. He also does not know where Linda v/as, but her children were in the house. After Bill saw Audie being dragged into the garage, he followed Wayne into the house. Wayne showed him his broken teeth and told Bill that Audie hit him in the mouth. Approximately 30 to 35 minutes later Woodrome called Bill into the garage. Audie Wilson was lying on the floor in a pool of blood, and Woodrome was standing at Audie’s feet. Bill does not remember whether Wayne was there, but he does recall Woodrome and Schofield being there. Woodrome said to Bill, “We beat him to death.”

Bill Sturgill testified that although his recollection is not clear, he remembers at one point Audie was beaten with a stick. Sturgill did not recall whether he beat Audie with the stick or whether someone else did. He testified, “I just remember seeing something going down, but I don’t remember if it was me that had a stick in my hand or what, or if I seen somebody else.” Bill helped load Audie Wilson’s body onto the truck. Bill’s wife drove Bill and Woodrome to Silver Creek, where the body was dumped. After they returned home, they burned their clothes and went to bed.

On cross-examination Sturgill testified that he did not know ■ whether his wife flirted with Audie Wilson that evening or not. He did get into an argument with her that evening, however. Bill Sturgill also testified that on April 10, 1990, he went to Audie Wilson’s mother’s home and told her that he felt somewhat responsible for her son being missing. He told Audie’s mother that he last saw Audie leaving the party with a girl.

Madison County Deputy Sheriff Kelly Hodges testified that on April 18, 1990, he was on patrol at 1 a.m. when he heard a radio broadcast from a police dispatcher indicating that two individuals, Woodrome and Peach, were sighted in the area by a citizen. Hodges testified that at that time Woodrome and Peach were fugitives wanted for a homicide investigation. Hodges drove his squad car near the area where the two men were reported to have been seen and observed them walking across the parking area of a service station. As Officer Hodges approached the men, they both raised their hands in the air. Hodges testified that Woodrome and Peach told him at that time, “We’re the guys that you’re looking for.” They surrendered and told Hodges that they wanted to turn themselves in. On the drive back to the county jail Woodrome and Peach both advised Hodges that they did not commit the homicide.

Dr. Steven Nuernberger, a pathologist, testified that he performed an autopsy on Audie Wilson to determine the cause of death. Nuernberger’s testimony regarding the external examination of the decedent’s body provides insight into the condition of the body when it was discovered by the police.

“The skin of the hand and feet was wrinkled, reflecting prolonged immersion under water. There was a mottling of the body. Multiple contusions were present over the anterior thorax. Some contusions on the back. There was multiple — or there were multiple lacerations on the head and face of the deceased. The nose was broken. There was no evidence of bruises or contusions on the lower extremities of the deceased. There were two hyperkeratotic inverted palpable marks, corns — two corns on the bottom of the right foot of the deceased. On closer examination of the face there was a four-and-a-half sonometer laceration. Sonometer — centimeter is about two-and-a-half centimeters to an inch, so there was an almost two-inch long laceration at the hairline on the left forehead. There was a small laceration in the middle portion of the left eyebrow. There was a Y-shaped or T-shaped, I felt, an incised wound or a cut in the lateral left eyelid that measured about an inch. There was a tear in the right alar wing of the nose. There were bruised lips. Inside the lips the gum or the cheek, the inside cheek was torn about an inch tear on the inside cheek. The bottom part of the bottom lip was torn and the scrape — the inside mucosa of the right cheek was scraped and torn. The right eye showed a— what was felt to be a laceration in the right eyebrow, and there was a second vertical laceration or incision in the right upper lateral eyelid. The nose — I’m repeating — the nose was broken.
Examination of the neck revealed two stab wounds, one on each side of the neck. Each stab wound measured approximately 1.4 centimeters to a centimeter-and-a-half, and below that there were bruises on the chest and back.
* * *
*** He had a fractured rib on his left side. I think the second rib was fractured. I think the fourth and the sixth, seventh and eight. Probably three to five fractured ribs on the left side. There was [sic] no fractured ribs on the right side.”

Neurnberger testified that Audie Wilson did not die by drowning or by strangulation. Furthermore, the two stab wounds Audie Wilson received to the neck were not enough to cause his death. Wilson’s death was a result of a combination of occurrences.

“I’ve got a potentially fatal injury to the heart, but not enough blood from it to cause death, which means he could have died before he had time to bleed out of his heart. I have pulmonary edema, which you can get with drowning or you can get with head trauma or strangulation. And I’ve got knife wounds to the eyes that don’t hemorrhage. Time becomes the essence. In what the body taught me and what I could understand was this man had injury to the head and chest that could be fatal but wasn’t. We have stab wounds to the neck that show us he was alive but weren’t fatal. We have a potentially fatal injury to his heart, but wasn’t fatal because he died before it killed him. I think we are left with two possibilities, drowning and blunt trauma to head and chest with respiratory failure, pulmonary edema and death. So the time it took between when he was beat up and when he was submerged in the water is a critical interval, and I have no knowledge of how long that interval was. Okay. I believe that because the knife wounds to the eyes did hemorrhage into the tissues behind the eyeball, I believe he was dead when they occurred, and they must have occurred before he was submerged, so I’m left with death secondary to blunt trauma to the head and chest, injury to the brain.”

Testimony as to blood samples taken from the Sturgill house and garage was provided by Michael Brown, a serologist with the Illinois State Police crime laboratory. Brown testified that using genetic marker analysis he should be able to either eliminate a person as being a source of the blood sample or be able to state that the bloodstain could have originated from that person. Using a statistical analysis of different blood systems, Brown is able to determine approximately how often the particular genetic marker is found in the total population.

Brown testified that he tested a blood sample taken from the outside of a container of oil found in the Sturgill garage. The test revealed that while the blood could have been from Audie Wilson, it could not have come from Woodrome, Bill Sturgill, Schofield, or Wayne Peach. The same was true of the blood samples taken from the garage floor and from the wooden table leg in the garage. Brown testified that based on his genetic marker analysis, the blood found on the container of oil could have come from 5.43% of the white population.

During the defendant’s case, Lieutenant Carol Stirrup, a corrections officer with the St. Clair County sheriff’s department, was called to the stand. Stirrup testified that at the request of the defense she examined Michael Woodrome, Wayne Peach, William Schofield, and Bill Sturgill for identifiable marks or tattoos. She found that Michael Woodrome has from five to seven tattoos, while Wayne Peach has approximately 35 identifiable marks or tattoos on his body. Stirrup testified that Schofield has five or six tattoos, and Bill Sturgill has seven. While Woodrome did not have any tattoos that were the same as the other three men, Lieutenant Stirrup found that Peach, Schofield and Sturgill each had a tattoo of a handgun.

The jury found Michael Woodrome guilty of the first-degree murder and concealment of the homicidal death of Audie Wilson. Defendant raises seven issues on appeal:

(1) Whether his convictions should not stand because they are based almost exclusively upon the uncorroborated testimony of an accomplice who was a liar, who admittedly could not recall much of the incident, who received favorable treatment from the prosecutor for agreeing to testify against the defendant, and whose testimony was substantially impeached.
(2) Whether the court erred in giving the instructions on accountability.
(3) Whether defendant was denied a fair trial by the prosecutor’s misstatement of evidence during closing argument and by the court’s failure to instruct the jury to disregard such misstatements.
(4) Whether the trial court abused its discretion by failing to grant defendant a new trial upon newly discovered evidence.
(5) Whether the issues instruction on first-degree murder was incorrect and fundamentally unfair.
(6) Whether defendant was denied the effective assistance of counsel by defense counsel’s failure to object to alleged inculpatory hearsay of a nontestifying codefendant and by his failure to tender a proper issues instruction for second-degree murder under a theory of accountability.
(7) Whether defendant’s sentences must be modified to concurrent terms because the record does not reflect that the court was of the opinion that consecutive sentences are necessary for the protection of society.

He first argues that his convictions should not stand because they are based almost exclusively upon the uncorroborated testimony of a lying accomplice who was admittedly highly intoxicated at the time of the offense, who admittedly could not recall much of the incident, who received favorable treatment from the prosecutor for agreeing to testify against the defendant, and whose testimony was substantially impeached. Defendant contends that his convictions rely almost exclusively upon the unreliable and unbelievable testimony of Bill Sturgill.

While a major part of the State’s case did consist of the testimony of Bill Sturgill, the standard of review we must apply is whether after viewing all of 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. (See People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472.) Once a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Young, 128 Ill. 2d at 49, 538 N.E.2d at 473; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Paul Conklin, Linda Peach, Sue Sturgill and Bill Sturgill each testified that there was drinking at the party. According to Linda’s and Bill’s testimony large quantities of beer were consumed. Both Linda Peach and Bill Sturgill testified that they saw the defendant drag Audie Wilson by the hair of his head into the garage. Linda testified that Woodrome, Bill Sturgill, her husband Wayne Peach and Schofield went into the garage, and soon thereafter, she could hear Audie Wilson pleading with them to stop. Later Wayne Peach told Linda that “they killed him.” Linda saw Woodrome rinsing blood from a knife, observed Woodrome and the Sturgills leave in a pickup truck, and later saw the men burning their clothing which appeared to be bloodstained.

Sue Sturgill testified that at least one time during the evening her husband and Woodrome were in the garage. They asked her to back the pickup truck into the driveway, and later they asked her to drive them into town. During their drive to Mascoutah the men told Sue Sturgill to pull over. She observed them unload a bundle from the truck. Later she was told that it was Audie Wilson’s body. Sue Sturgill was asked to get Woodrome, Bill Sturgill, and Schofield a change of clothing.

Bill Sturgill testified that when he entered the garage on the evening in question, he saw Audie Wilson lying on the floor in a pool of blood. Woodrome was standing at Wilson’s feet. Woodrome told Sturgill, “We beat him to death.” Sturgill testified that he recalls loading Wilson’s body into the truck and dumping it into Silver Creek. As for defendant’s argument that Sturgill’s testimony should be totally disregarded, the jury knew of Bill Sturgill’s plea agreement with the State, and it was instructed that accomplice testimony was subject to suspicion (see Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981)). Any infirmities in Bill Sturgill’s or the other witnesses’ testimony go to the weight of the evidence and their credibility as witnesses. People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461, 473.

The pathologist testified that Wilson’s death was not caused by strangulation or drowning but was the result of a combination of occurrences, in particular blunt trauma to the head and chest. The serologist testified that various blood samples taken from the garage could have come from Audie Wilson but could not have come from either Michael Woodrome, Bill Sturgill, William Schofield, or Wayne Peach.

While there was no testimony that anyone actually saw Woodrome beating Audie Wilson to death, a conviction may be based entirely upon circumstantial evidence. (People v. Bruce (1989), 185 Ill. App. 3d 356, 541 N.E.2d 708.) Given the totality of the evidence, it was sufficient for a rational jury to conclude, beyond a reasonable doubt, that the defendant was guilty of the first-degree murder of Audie Wilson and concealment of his homicidal death.

Defendant next argues that the jury was improperly instructed on accountability. The jury was given the issues in first-degree murder instruction incorporating accountability (Illinois Pattern Jury Instructions, Criminal, No. 7.02A (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d)) and the following instruction on accountability:

“A person is legally responsible for the conduct of another person when, either before or during the commission of any offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of an offense.
The word ‘conduct’ includes any criminal act done in furtherance of the planned and intended act.” (Emphasis added.)

The accountability instruction parallels the language of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (IPI Criminal 2d), except for the italicized words. The italicized “any” reads “an” in IPI and is not at issue here. Defendant argues that the italicized “an” in the given instruction, however, should read “the” as directed in the 1989 supplement to IPI Criminal 2d No. 5.03. The 1989 supplement to IPI Criminal 2d No. 5.03 provides that either “an” or “the” may be used in place of the underlined “an.” (See IPI Criminal 2d No. 5.03 (Supp. 1989).) The Committee Note directs one to use the bracketed word “an” and the second paragraph when the offense charged is different from the offense planned and intended but is done in furtherance of the charged offense. (IPI Criminal 2d No. 5.03, Committee Note, at 76 (Supp. 1989).) Given the fact that the offense charged (murder) is different from the offense allegedly planned and intended (battery by dragging), the instruction conforms with the language as recommended by the 1989 supplement.

Defendant contends that the instruction given allowed the jury to find him guilty of murder based solely upon his act of dragging the victim into the garage without any evidence of his intending to aid the codefendants in any crime. Defendant argues that if he intended to commit only a battery, then permitting the jury to find that he is guilty of murder is erroneous.

Defendant fails to recognize the applicability of the common-design rule. The common-design rule provides, “ ‘where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.’ ” (People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, 748, quoting People v. Kessler (1974), 57 Ill. 2d 493, 496-97, 315 N.E.2d 29.) In Terry the supreme court applied the common-design rule to affirm a murder conviction even though an intent to kill was not proven. Terry found that the defendants could be held liable for murder committed by a third person pursuant to a conspiracy to commit battery, even though only a misdemeanor was originally intended. 99 Ill. 2d 508, 460 N.E.2d 746.

Under the common-design principle defendant was responsible for conduct done in furtherance of the intended battery even if the evidence did not prove that it was defendant who beat the victim to death. The result of their concerted acts was murder, and under the common-design rule, all are legally accountable for that murder. (See Terry, 99 Ill. 2d at 515, 460 N.E.2d at 749; see also Ill. Rev. Stat. 1991, ch. 38, par. 5—2(c).) In determining legal accountability, a trier of fact may consider that the accused was present during the commission of a crime without opposing or disapproving it, that he maintained a close affiliation with his companion after the perpetration of the offense, and that he failed to report the crime. (People v. Williams (1987), 157 Ill. App. 3d 496, 506, 510 N.E.2d 445, 451.) Applying the instruction given, the jury could have found that defendant, during the commission of a battery (dragging Wilson), with the intent to promote that offense (battery by dragging), aided the codefendants in the planning or commission of murder. We cannot find that the jury was improperly instructed.

Defendant next argues that he was denied a fair trial because the prosecutor misstated the evidence during his closing argument and on rebuttal:

“Bill Sturgill told you that he saw Woodrome’s hands and it appeared that they had been puffed up. *** Audie Wilson was beaten to death. He was beaten to the point where his head was swollen.”
“Getting on top of a just turned — a young man, basically a boy just turned 21 years old, getting on top of him and pounding him to death, breaking his ribs, breaking his nose, putting fifteen bruises on the top of his chest, and his hands were bruised then, that is murder.”

Specifically, defendant asserts that there was no evidence that his hands were puffed up or bruised and there was no evidence that the defendant was on top of the victim.

During the prosecution’s closing argument, defense counsel objected to both of the complained-of remarks. The trial court overruled both objections. As to the first remark, the court also instructed the jury, “If you hear anything that’s not bound out by the evidence, you will disregard it.” As for the second remark, the trial court stated, “The jury has a memory of what the testimony is and was not, and he may argue reasonable inferences in his argument.”

Assuming the prosecutor’s remarks were improper, the mere occurrence of improper remarks does not itself mandate reversal. (People v. Whitfield, (1986), 140 Ill. App. 3d 433, 440, 488 N.E.2d 1087, 1092.) Timely objection by defense counsel and an appropriate admonition by the court may prevent error or, in the event error occurs, may render it harmless. (People v. Moody (1990), 199 Ill. App. 3d 455, 466, 557 N.E.2d 335, 342.) A conviction will not be reversed for improper closing argument unless the error was of substantial magnitude arid was a material factor in the defendant’s conviction. (People v. Tannahill (1987), 152 Ill. App. 3d 882, 887, 504 N.E.2d 1283, 1287.) To warrant reversal, the challenged remarks must be shown to have caused substantial prejudice when viewed in the context of the entire record. People v. Gleash (1991), 209 Ill. App. 3d 598, 608, 568 N.E.2d 348, 355.

The court admonished the jury to disregard any argument not based on the evidence. In addition, the written instructions provided that closing arguments should be confined to the evidence and to reasonable inferences to be drawn from the evidence and that any statement or argument not based on the evidence should be disregarded. After reviewing the record in this case, we do not believe that the prosecutor’s remarks were a significant factor in the jury’s determination.

Michael Woodrome next argues that the trial court abused its discretion by failing to grant him a new trial based upon newly discovered evidence which he claims demonstrates that Bill Sturgill committed perjury.

At the hearing on defendant’s post-trial motion, defense counsel orally moved to amend his post-trial motion. The amendment concerned a letter sent to the court from Ronald Bireri. While the letter itself is not part of the record on appeal, defense counsel read part of the letter into the record:

“Myself, Ronnie Tucker and Luther Sturgill were all in the courthouse on the 23rd or 24th of January. We were in the first holdover on the right. Luther Sturgill said, ‘Mike, you know you didn’t do it. I only said what I knew your attorney could tear up.’ ”

Defendant argues that in light of this new evidence it is clear that Sturgill committed perjury, which entitles him to a new trial.

A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. (People v. Baker (1959), 16 Ill. 2d 364, 373-74, 158 N.E.2d 1, 6; People v. Haun (1991), 221 Ill. App. 3d 164, 581 N.E.2d 864.) The new evidence must be of such a conclusive nature that it would probably change the result upon retrial, it must be material to the issue and not merely cumulative, and it must not have been discoverable before trial through the exercise of due diligence. People v. Miller (1980), 79 Ill. 2d 454, 464, 404 N.E.2d 199, 204; People v. DeCesare (1989), 190 Ill. App. 3d 934, 943, 547 N.E.2d 650, 656.

Defendant relies solely on the out-of-court statement allegedly made by Sturgill and overheard by Bireri. The statement, “You know you didn’t do it,” is not necessarily a declaration that Sturgill believed that defendant did not commit the crime. Even if it were, it is well established that recantation testimony is not ordinarily a sufficient basis for a new trial. (People v. Bushey (1988), 170 Ill. App. 3d 285, 289, 524 N.E.2d 738, 741.) Newly discovered evidence which has only the effect of impeaching, discrediting, or contradicting the witness does not require a new trial. (Haun, 221 Ill. App. 3d at 175, 581 N.E.2d at 872.) Based on the standards set forth, we conclude that the trial court did not abuse its discretion in denying defendant a new trial based on newly discovered evidence.

The defendant next contends that he was denied a fair trial because the jury instruction on second-degree murder did not contain a phrase relating to accountability.

At the jury instruction conference defendant tendered an instruction patterned after IPI Criminal 2d No. 7.06A. Nowhere in that instruction was an accountability phrase incorporated. The court advised counsel that according to IPI Criminal 2d No. 7.06A (Supp. 1989), the accountability phrase needed to be inserted. Defense counsel asked the State to insert the accountability phrase at the appropriate places. The State incorporated the accountability phrase as it related to first-degree murder but did not incorporate it as it related to the lesser offense of second-degree murder. Defense counsel did not object to the final form of the instruction.

It is well settled that where a defendant fails to object to an asserted error in an instruction, any error is waived. (People v. Britz (1988), 123 Ill. 2d 446, 475, 528 N.E.2d 703, 717; People v. Smith (1988), 165 Ill. App. 3d 603, 518 N.E.2d 1382.) We could find that defendant waived the alleged error but will decline to do so because of defendant’s additional claim that his trial counsel was ineffective for failing to tender an appropriate instruction. To establish ineffective assistance of counsel, a defendant must show that his attorney’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive him of a fair trial, a trial whose result is reliable. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255; see also Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice *** that course should be followed.” Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069-70.

The instruction given to the jury read:

“To sustain the charge of first degree murder, the State must prove each of the following propositions:
First: That the defendant or one for whose conduct he is legally responsible performed the acts which caused the death of Audie Wilson; and
Second: That when the defendant or one for whose conduct he is legally responsible, did so,
(1) he intended to kill or do great bodily harm to Audie Wilson; or
(2) he knew that his acts would cause death to Audie Wilson; or
(3) he knew that his acts created a strong probability of death or great bodily harm to Audie Wilson; and
Third: That the defendant or one for whose conduct he is legally responsible was not justified in using the force which he used.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty of first degree murder, and your deliberations on this charge should end.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, then you should go on with your deliberations to decide whether a mitigating factor has been proved so that the defendant is guilty of the lesser offense of second degree murder instead of first degree murder.
You may not consider whether the defendant is guilty of the lesser offense of second degree murder until and unless you have first determined that the State has proved beyond a reasonable doubt each of the propositions of first degree murder.
The defendant has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder instead of first degree murder. By this I mean that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true that the following mitigating factor was present; that the defendant, at the time he performed the acts which caused the death of Audie Wilson, believed the circumstances to be such that they justified the deadly force he used, but his belief that such circumstances existed was unreasonable.
If you find from your consideration of all the evidence that the defendant has proved by a preponderance of the evidence that he is guilty of the lesser offense second degree murder instead of first degree murder, you should find the defendant guilty of second degree murder.
If you find from your consideration of all the evidence that the defendant has not proved by a preponderance of the evidence that he is guilty of the lesser offense of second degree murder instead of-first degree murder, you should find the defendant guilty of first degree murder.” (Emphasis added.)

Defendant argues that the absence of the accountability phrase (“the defendant or one for whose conduct he is legally responsible”) in the second-degree murder instruction excluded the possibility of defendant being found guilty of second-degree murder under a theory of accountability.

Section 9—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9—2) defines the elements of second-degree murder, which include two mitigating factors which can be raised by a defendant who has been charged with first-degree murder: (1) acting under sudden and intense passion; or (2) belief that one’s actions are justified even though they are in fact unreasonable. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) Once the State has proved the elements of first-degree murder beyond a reasonable doubt and the defendant proves either of these mitigating factors by a preponderance of the evidence, the offense of first-degree murder will be reduced to second-degree murder. (People v. Willis (1991), 217 Ill. App. 3d 909, 924-25, 577 N.E.2d 1215, 1225.) It is not incumbent on the State, in proving the elements of first-degree murder, to prove the nonexistence of the mitigating factors of section 9—2. 217 Ill. App. 3d at 925, 577 N.E.2d at 1225.

We fail to see how the result of the proceedings would have been different had the jury instruction included the accountability phrase. Whether the jury instruction directed the jury to examine the belief of Woodrome or the belief of one for whose conduct he was legally responsible is of no consequence given the evidence in this case.

Evidence which might be construed as showing that the harm inflicted upon Audie Wilson arose from a sudden intense passion consisted of the evidence that Sue Sturgill flirted with Audie Wilson. Sue Sturgill testified that she did not flirt with Wilson, but Linda Peach testified that Sturgill flirted with just about everyone that evening. More importantly, Bill Sturgill testified that he did not know whether his wife flirted with Wilson that night. The provocation sufficient to support a reduced charge from murder to voluntary manslaughter must be such as to excite an intense passion in a reasonable person. (People v. Proper (1979), 68 Ill. App. 3d 250, 254, 385 N.E.2d 882, 886.) Because there was no evidence that Bill Sturgill had any knowledge of his wife’s flirting, the provocation evidence in this case is insufficient to support a finding that the harm inflicted upon Wilson was the result of a sudden and intense passion.

Evidence tending to show that the defendant or the other accomplices believed their actions justified even though such action was unreasonable includes evidence that the men at the party were drinking beer. There was also evidence that Wilson may have been “horseplaying” or scuffling in the kitchen. Defendant argues that the jury could have inferred that defendant dragged Wilson into the garage to prevent him from further “horseplay.” Bill Sturgill is the only witness who testified that his intoxication impaired his power of reason. There is no direct evidence of Woodrome’s intoxication or his reason for dragging Wilson into the garage. There was evidence that after Woodrome dragged Wilson into the garage Wilson was heard to say, “Please, please, no more.” Thereafter, Wayne Peach emerged from the garage with a broken dental plate.

Even if defendant believed that his actions were justified when he dragged Wilson into the garage, the subsequent conduct which caused Wilson’s death was not justified. Dr. Nuernberger testified to the extensive injuries inflicted upon Wilson. It is true that subsequent wounds do not necessarily negate a claim of self-defense where the victim continues to present a danger to the defendant. (People v. Willis (1991), 210 Ill. App. 3d 379, 385, 569 N.E.2d 113, 116.) However, there is no evidence in this case, other than Wayne Peach’s broken dental plate, to suggest that Wilson presented a threat to anyone. There is simply a lack of evidence to support defendant’s theory that the force used against Wilson was believed to be justified. Based upon the record, we reject defendant’s contention that the jury instruction amounts to reversible error. We cannot conclude that based on the evidence there is a reasonable probability that the result of the proceedings would have been different had the second-degree murder instruction included an accountability phrase.

Defendant’s next argument is that his trial counsel was ineffective for failing to object to the alleged inculpatory hearsay of codefendant Wayne Peach. Specifically, the defendant argues that “Linda Peach’s testimony that Wayne Peach had told her that defendant had said that he had killed Wilson was clearly hearsay.” Defendant contends that this evidence violated the rule in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, that in a joint trial the nontestifying codefendant’s confession may not be introduced against the defendant. Defendant argues that Wayne Peach was a nontestifying codefendant and what defendant purportedly told him was inadmissible hearsay.

We initially note that the testimony complained of is not what the defendant contends. Linda Peach testified:

“Q. [By Prosecutor] Were you aware that Audie Wilson was killed that evening?
A. [By Linda Peach] Yes.
Q. And when did you find that out?
A. After Wayne got hit in the mouth and got his teeth broke cause he wears a false plate, he came outside and told me that they killed him.”

Hence, it is clear that there was no statement by the defendant confessing to the crime. The defendant recognizes this in his statement of facts where he notes that Linda Peach did not say who “they” were.

The admission of this testimony did not violate the Bruton rule. The statement by Linda Peach was not the type of testimony at issue in Bruton. Bruton involved an express confession by a nontestifying codefendant which clearly implicated the defendant. The holding in Bruton was based, in part, on the fact that powerfully incriminating extrajudicial statements of a codefendant are deliberately spread before the jury in a joint trial. (Bruton, 391 U.S. at 135-36, 20 L. Ed. 2d at 485, 88 S. Ct. at 1628.) The instant case does not involve an express confession by Wayne Peach, and Linda Peach never explicitly stated that Wayne implicated the defendant. Furthermore, the State did not argue that because Wayne “confessed” defendant was guilty. Hence this case does not involve a Bruton-type violation.

The instant case is similar to People v. Harris (1990), 204 Ill. App. 3d 491, 561 N.E.2d 1361. In that case a police detective testified to a confession given by a codefendant. On appeal the defendant argued that this testimony was hearsay and violated his right to confront an adverse witness. In rejecting this argument, the court noted that the codefendant’s confession did not explicitly implicate the defendant, that the State did not use the testimony against the defendant, and that the State did not argue that because of the codefendant’s confession the defendant was guilty. Harris, 204 Ill. App. 3d at 497, 561 N.E.2d at 1361.

In order to show counsel provided ineffective assistance, the defendant must establish that counsel’s performance fell below an objective standard of reasonableness and that but for counsel’s errors the result would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Based on the foregoing, we do not conclude that counsel was ineffective in failing to object to Linda Peach’s testimony.

Defendant’s final argument on appeal is that the circuit court erred in imposing consecutive prison sentences of 50 and 5 years for murder and concealment of a homicidal death, respectively. He argues that the record fails to show that the circuit court was of the opinion that consecutive sentences were necessary to protect the public.

Section 5—8—4(b) of the Unified Code of Corrections provides:

“The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—4(b).)

The supreme court has held that the statutory requirement that the court “shall set forth in the record” the basis for the court’s determination is permissive rather than mandatory and may be waived. (People v. Hicks (1984), 101 Ill. 2d 366, 374, 462 N.E.2d 473, 477; see also People v. Haun (1991), 221 Ill. App. 3d 164, 581 N.E.2d 864.) In this case the defendant did not request a specific finding of the sentencing court relative to the protection of the public, nor did he complain that a basis for the required statutory finding was not articulated. We find, therefore, that defendant’s objection to the trial court’s failure to enumerate its reasons is waived.

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

Affirmed.

WELCH and W.A. LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH

license: Public Domain

text:
    CHARLES MEADOWS, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—91—0579
    Opinion filed November 24, 1992.

      Michael J. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellant.
    William Kent Brandon, of Brandon, Schmidt & Palmer, of Carbondale, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Charles Meadows, was issued insurance on his 1987 Ford Escort by defendant, State Farm Mutual Automobile Insurance Company, through its agent, Hugh Frailey. On December 23, 1987, while the policy was in effect, plaintiff was involved in an accident. Although plaintiff was not at fault, the other driver’s insurance policy apparently did not cover the costs of plaintiff’s injuries and damages. On August 15, 1989, plaintiff filed a complaint for declaratory judgment against defendant alleging that defendant breached its duty to make a proper offer of uninsured motorist coverage to plaintiff, which resulted in plaintiff being denied the opportunity to purchase underinsured motorist coverage. Plaintiff sought reformation of the contract of insurance to include underinsured motorist coverage in an amount equal to the maximum amount of bodily injury liability offered by defendant on the date his policy was issued or last renewed before the collision. Following a bench trial, the court entered judgment on plaintiff’s complaint in favor of defendant and against plaintiff finding, in pertinent part:

“2. That the Complaint fails to allege the necessity of reconstructing the insurance contract and that it fails to allege that plaintiff suffered damages from an uninsured or underinsured motorist.
3. In any event, plaintiff fails to meet the burden of proof that the defendant failed to adequately advise the plaintiff of the availability of uninsured motorist coverage; to the contrary, defendant satisfies in the alternative that plaintiff through his spouse was fully advised of available coverage and plaintiffs rejected same.”

Plaintiff appeals from this judgment. In this cause, plaintiff raises two issues: (1) whether the trial court erred in finding defendant made a proper offer of uninsured motorist coverage to plaintiff, and (2) whether the trial court erred in finding plaintiff’s complaint insufficient as a matter of law. We reverse and remand.

Plaintiff purchased the automobile insurance policy from defendant in July 1987, immediately following his purchase of a new Ford Escort. Plaintiff called defendant’s agency in Benton which is owned by Hugh Frailey. Plaintiff cannot remember to whom he spoke about an insurance policy for his new car, but he remembers it was either Mr. Frailey or Mr. Frailey’s secretary, Liz Roberts. The person he spoke to at the agency informed him that the Ford dealership where he purchased the car had already called and given all the necessary information. Plaintiff was informed that all he needed to do was to sign the contract of insurance and pay the premium. Plaintiff testified that during this conversation, the subject of uninsured and underinsured coverage was never discussed.

Plaintiffs wife went to the agency the next morning and spoke to Liz Roberts. The application had been previously completed by someone at the agency. Liz Roberts put the application in front of Mrs. Meadows and told her where to sign. Mrs. Meadows inquired as to whether she should sign her own name or her husband’s. Liz Roberts told her she could sign her husband’s name. Mrs. Meadows did not read the forms given to her for her signature. She signed both the application form and the Illinois uninsured/underinsured motor vehicle coverage selection form (selection/rejection form) using her husband’s name. The selection/rejection form had also been previously filled out. It provided, in pertinent part:

“This is to certify that:
I have been provided the opportunity to purchase Uninsured Motor Vehicle Coverage and Underinsured Motor Vehicle Coverage up to an amount equal to my automobile Bodily Injury Liability limits, and instead I select lower limits of $ 15 30 -j -
Notice: if the limits selected are the minimum required by law (Section 7—203 of the Illinois Vehicle Code), no underinsured motorist insurance will be included in the policy if the limits selected above exceed the minimum limits required by law. Underinsured Motor Vehicle Coverage will be included in an amount equal to the total amount of Uninsured Motor Vehicle Coverage.”

At this time, Mrs. Meadows also wrote a check for the premium and gave it to Liz Roberts.

Hugh Frailey testified that he follows a standard procedure in discussing coverage with clients. He gives a general explanation concerning underinsured and uninsured motorist coverages. He explains that the law in Illinois requires policy holders to carry certain minimum amounts of coverage. Mr. Frailey recommends that a policy holder carry uninsured and underinsured motorist coverage equal to his or her liability limits for bodily injury. Plaintiff’s exhibit No. 3, a portion of Mr. Frailey’s discovery deposition, was admitted pursuant to Supreme Court Rule 212(a) (134 Ill. 2d R. 212(a)). It reads, in pertinent part:

“Q. What is it you tell them about the uninsured motorist coverage?
A. About your uninsured motorist, correct?
Q. Yes, the UM coverage.
A. Okay. In the event that they are involved in an accident and an uninsured motorist, you know, is at fault, the uninsured motorist coverage gives them medical coverage for, you know, 50,000 per person, 100,000 per accident. In other words, the person that hits them does not have insurance, this is where we will pay for their medical bills.
The underinsured motorist coverage, if the other person has insurance, but they don’t have enough insurance to cover, you know, whatever their medical bills are, the underinsured comes in and picks up where theirs left off, basically.
Q. Okay. Now, is there anything else that you tell them about the uninsured motorist coverage? Just want to talk about uninsured right now. Other than what you’ve told me, what else do you tell them, if anything, about the purpose of that uninsured motorist coverage?
A. That’s exactly what we tell them.”

Mr. Frailey had 1,525 active auto policies, as well as many other active fire and health policies at the time of trial. He could not specifically remember talking to plaintiff about the policy issued on plaintiff’s 1987 Ford Escort. Mr. Frailey allows Liz Roberts to explain coverages to potential policy holders.

Liz Roberts agreed that she explains coverages to customers when Mr. Frailey is unavailable. She does not remember if she spoke to Mrs. Meadows concerning coverage on a 1987 Ford Escort. A portion of Liz Roberts’ discovery deposition was also introduced into evidence pursuant to Supreme Court Rule 212 (134 Ill. 2d R. 212). The following is Liz Roberts’ explanation of both uninsured and underinsured coverages:

“Q. And what do you tell them uninsured motorist coverage does?
A. Okay. Uninsured covers them for bodily injury if they have an accident with someone who is uninsured.
Q. Okay. What sort of things does it pay for?
A. Hospital, bodily injury.
Q. Okay. What about underinsured motorist coverage, what do you tell them about that when they first — first time customer, what would you tell them normally?
A. Underinsured, that portion of their policy, if they wish to purchase it, covers them if they are injured in an accident with someone that is insured, but doesn’t carry enough.
Q. Okay. And what sort of things would the underinsured pay for?
A. The underinsured?
Q. The underinsured, yes.
A. All right. That portion of their policy picks up where the person that has done the bodily injury policy leaves off. And it pays up to the limits of their policy.
Q. Okay. For what things though, medical bills, lost earnings?
A. Medical.
Q. Would it pay for lost earnings?
A. I’m not sure about that.
Q. Okay. What about disability or things like that that are not medical bills, would the underinsured pay for that?
A. I’m not sure.
Q. Okay.
A. I’m not sure.
Q. Now, let me go back to the uninsured motorist coverage and ask you, you said that uninsured motorist coverage would pay for, for example, it would pay for medical bills if a person was hurt because an uninsured driver hurt them?
A. Right.
Q. Okay. Other than paying for medical bills, would it pay for any other things such as lost earnings?
MR. BRANDON [defendant’s counsel]: She answered that question. She said it would pay for bodily injury. Now, if you want her to go beyond that point, she can try, but she answered your question.
Q. (MR. HANAGAN [plaintiff’s counsel] CONTINUING) Mrs. Roberts, do you know what I’m asking you here, about whether uninsured motorist coverage would cover someone for time lost from work?
A. I’m not sure.”

Two additional witnesses also testified at the hearing. Mrs. Kathy Swigonski, who is also insured by defendant through the Frailey Agency, testified that when she bought a new car in 1987, Mr. Frailey merely transferred the policies from her old car to her new car and did not discuss either uninsured or underinsured motorist coverages with her. Mrs. Swigonski testified that “somewhere down the line” someone from the agency did discuss uninsured coverage with her, but not at the time she acquired the coverage.

Mrs. Diane Lynn Bange, operations superintendent for defendant in Bloomington, checked the Meadowses’ records. She found renewal documents regarding a 1983 insurance policy. In 1983, defendant sent the Meadowses a renewal notice and included an insert regarding an offer to increase uninsured and underinsured motorist coverages. The Meadowses did not seek a change in coverage at that time. Defendant’s records did not show a similar offer was made with regard to their 1987 policy.

I

The first issue we are asked to consider is whether the trial court erred in finding defendant made a proper offer of uninsured motorist coverage to plaintiff. Plaintiff argues defendant had a statutory duty to offer uninsured motorist coverage and that defendant failed to properly offer that coverage. Had defendant complied with its statutory duty to offer uninsured motorist coverage, plaintiff could have obtained underinsured motorist coverage at the same amount. Because defendant failed to properly offer uninsured motorist coverage, which in turn prohibited plaintiff from purchasing underinsured motorist coverage, the policy should be reformed to include underinsured motorist coverage at the maximum bodily injury amount offered by defendant at the time the policy was issued or renewed. Defendant responds it gave plaintiff enough information concerning both uninsured and underinsured motorist coverage to allow plaintiff to make an intelligent decision and, therefore, did not breach its statutory duty to offer plaintiff uninsured and underinsured motorist coverage. We agree with plaintiff.

In order to understand the case before us, it is necessary to examine certain statutory requirements concerning both uninsured and underinsured motorist coverage. In recent years the General Assembly has made several changes to statutes which require that certain types of coverages be included in all automobile insurance policies. (For a review of these changes, see DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521, 588 N.E.2d 1074.) At the time in question, the following provisions requiring uninsured and underinsured motorist coverage were in effect. Section 143a—2 of the Illinois Insurance Code (the Code) stated, in pertinent part:

“(1) Required offer of additional uninsured motor vehicle coverage. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless uninsured motorist coverage as required in Section 143a of this Act is offered in an amount up to the insured’s bodily injury liability limits.
* * *
(5) On or after July 1, 1983, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless underinsured motorist coverage is included in such policy in an amount at least equal to the total amount of uninsured motorist coverage provided in that policy where such uninsured motorist coverage exceeds the limits set forth in Section 7—203 of the Illinois Vehicle Code.” Ill. Rev. Stat. 1985, ch. 73, pars. 755a—2(1), (5).

Section 143a—2(1) of the Code requires that no policy may be issued or renewed unless uninsured motorist coverage is offered in an amount up to bodily injury limits. Section 143a—2(5) provides that after July 1, 1983, no policy can be issued or renewed unless underinsured coverage is included in an amount at least equal to the uninsured motorist coverage where the uninsured motorist coverage exceeds the statutory minimum. Therefore, if an insurance company has properly offered uninsured motorist coverage, and if the customer has chosen an uninsured limit higher than the minimum required by law, the insurance company has a duty to issue underinsured motorist coverage in an amount equal to the uninsured motorist coverage. (DeGrand, 146 Ill. 2d at 529-30, 588 N.E.2d at 1078-79.) The question here is whether defendant made a proper offer of uninsured motorist coverage to plaintiff.

The parties agree that the proper test to determine the sufficiency of an offer of optional coverage has been set forth in Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548. In that case, our supreme court studied the legislative history of section 143 of the Code to determine what the General Assembly meant by the term “offer.” The Cloninger court found:

“The language of section 143a—2(3) and the legislative debates surrounding its passage, as well as the passage of its predecessor, section 143a—1, indicate that the legislature recognized that soaring medical costs often left injured parties only partially compensated for their injuries. The legislature was obviously concerned with adequately compensating injured parties. As stated by Representative Epton during a House debate on what would later be codified as section 143a—2(3): ‘[T]his Bill is in behalf of the consumer.’ House Debate, June 20, 1980, at 48.
The legislature not only required that underinsured-motorist coverage be offered but also provided that the insured had a right to elect or reject such coverage. (Ill. Rev. Stat. 1981, ch. 73, par. 755a—2(4).) The right to elect or reject such coverage requires that the insured have information regarding the coverage. (Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329[,465 N.E.2d 956].) Therefore, we believe that the legislature intended that the ‘offer’ mandated in section 143a—2(3) provide the insured with enough information regarding underinsured-motorist coverage to allow the insured to make an intelligent decision of whether such coverage should be elected or rejected. Such an intelligent decision cannot be made unless an explanation of the coverage is supplied. See Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 333-34[, 465 N.E.2d 956, 959-60].” (109 Ill. 2d at 424-25, 488 N.E.2d at 550.)

The Cloninger court went on to adopt a four-part test to determine whether an offer of optional coverage was adequate. In order to satisfy the requirements of section 143a—2 of the Code, an offer must (1) notify the insured in a commercially reasonable manner if the offer is not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the option; and (4) advise the insured that the optional coverage is available for a relatively modest premium increase. 109 Ill. 2d at 425-26, 488 N.E.2d at 550.

Plaintiff argues that defendant did not comply with part three of the test because plaintiff failed to explain uninsured motorist coverage to either plaintiff or his wife. Moreover, plaintiff contends even if defendant discussed uninsured motorist coverage with plaintiff or plaintiff’s wife in general terms, as defendant’s agent, Hugh Frailey, and Hugh Frailey’s secretary testified, their testimony showed they actually misunderstood uninsured motorist coverage and therefore misrepresented that coverage when discussing it with clients.

Neither plaintiff nor his wife remembers having a discussion with defendant’s employees about uninsured motorist coverage for their 1987 Ford Escort prior to acquiring such coverage. Plaintiff called the agency to obtain insurance for his new vehicle and talked to someone at the agency who told him that the agency had already received a call from the car dealership which gave the agency the necessary information in order for plaintiff to obtain insurance. The person who answered the phone told plaintiff that all that was necessary was for someone to stop by the agency, sign the papers, and pay the premium. Plaintiff’s wife testified that she went to the agency and talked to Liz Roberts. Plaintiff’s wife paid the premium and signed the forms, one of which was the selection/rejection form. Plaintiff’s wife, however, recalls that at the time she signed the insurance forms, she thought the selection/rejection form was just part of the application. Plaintiff’s wife could have read what she was asked to sign. Instead, she relied on the insurance company to have completed the forms correctly. Moreover, plaintiff’s wife was aware that her husband had already talked to the agency about insurance for the new car, so she assumed that there was nothing for her to do but sign the papers and pay the premium. She did not go to the agency with the intention of discussing or choosing coverages, as she believed her husband had already completed those tasks.

The instant case is analogous to Holland v. State Farm Mutual Automobile Insurance Co. (1991), 216 Ill. App. 3d 463, 576 N.E.2d 981. In Holland, the plaintiff testified she had been insured by another insurance company and had sought a price quote from the defendant’s agent in an attempt to lower her premium payments. The only coverage which was discussed during this conversation was medical pay. The plaintiff had no recollection of discussing with her new insurance agent uninsured or underinsured motorist coverage. Because the defendant’s agent offered the plaintiff a lower premium, the plaintiff changed insurance companies. The plaintiff was later hit by an uninsured driver and sought reformation of the insurance contract to include additional uninsured motorist coverage. The defense offered proof that the plaintiff had executed a document acknowledging her rejection of uninsured motorist coverage up to an amount equal to her bodily injury liability limits and choosing instead the minimum amounts of $15,000 per person and $30,000 per occurrence. The plaintiff stated she signed it only because she “probably thought it was part of the application.” (216 Ill. App. 3d at 466, 576 N.E.2d at 983.) The trial court ruled in the plaintiff’s favor, finding that the defendant had failed to satisfy the requirement that it had intelligibly advised the plaintiff as to the nature of the optional coverages. Our colleagues on the First District Appellate Court affirmed but never specifically mentioned the selection/rejection form. Instead, Holland, focused on the credibility of the witnesses, namely, that the defendant’s agent’s testimony concerning his usual procedures about discussing coverages was contradicted by the plaintiff and that the defendant had no specific instructional procedure at the time for advising new insureds of the optional coverages which had only three months previously been changed by the General Assembly. (216 Ill. App. 3d at 468, 576 N.E.2d at 984.) The Holland court did not find the plaintiff’s signature on the selection/rejection form indicative of her intention to select the minimum coverage and did not find the form constituted an offer within the meaning of Cloninger. Likewise, under the facts of the instant case, we conclude that the selection/rejection form does not meet the statutory requirement that the insurer must intelligibly advise the insured of the nature of the optional coverages.

Additionally, even if plaintiff or his wife had been advised of the opportunity to select uninsured motorist coverage, the information offered by defendant’s agent was incorrect. The deposition testimony of Hugh Frailey, recited in our statement of facts, shows that Mr. Frailey advised his clients that both uninsured and underinsured motorist coverage pays only for “medical” bills. Some responses elicited by defendant’s attorney later in the deposition do not cure Hugh Frailey’s defective response. Mr. Frailey was given the opportunity by plaintiff’s attorney to elaborate and further explain what uninsured and underinsured coverage pays for, but he unequivocally stated that that is exactly what he tells potential insureds. As plaintiff points out, this explanation would leave most people with the impression that if they have medical insurance through an employer or through a private insurer, the minimum uninsured coverage would be sufficient to meet their needs. Mrs. Roberts’ deposition testimony shows she does not understand what types of damages are covered by uninsured and underinsured motorist coverages.

Defendant next contends that because plaintiff purchased uninsured and underinsured motorist coverage equal to the bodily injury limits on a motorcycle he insured with defendant in 1981, it can be inferred that those coverages were explained to him and that he fully knew what he was purchasing in 1987. The law is clear, however, that no insurance policy can be issued or renewed unless uninsured motorist coverage is “offered” in an amount up to the insured’s bodily injury liability limits. Ill. Rev. Stat. 1985, ch. 73, par. 755a—2(1).

In this appeal, defendant made a motion to cite additional authority. We granted defendant’s motion and have considered DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521, 588 N.E.2d 1074, previously citing it herein. In DeGrand, our supreme court determined that the 1982 statute did not require insurers to offer underinsured motorist coverage to automobile purchasers who opt for uninsured motorist coverage at the minimum statutory level. In DeGrand, there was no issue as to whether the defendant had opted for the minimum amount of uninsured coverage. The defendant had chosen the minimum amount of coverage, and therefore, the insurer was not required to offer underinsured motorist coverage. (146 Ill. 2d at 535, 588 N.E.2d at 1081.) Here, plaintiff was never given the opportunity by defendant to choose uninsured motorist coverage. No meaningful offer was made. The forms were previously filled out upon plaintiff’s wife’s arrival at the agency and both plaintiff and his wife testified that they did not discuss uninsured or underinsured motorist coverage with defendant’s agent prior to being issued the policy on their Ford Escort. If an explanation had been given, it was clearly incorrect.

We are mindful that a reviewing court cannot substitute its judgment on such matters unless the findings of the trial court are clearly against the manifest weight of the evidence. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) We conclude that plaintiff has met that burden and has convinced us that the trial court’s findings were against the manifest weight of the evidence.

II

The next issue we must address is what amount of reformation should be ordered. Plaintiff contends that we should reform the insurance policy to provide underinsured motorist coverage in an amount equal to the maximum bodily injury liability protection offered by defendant at the time the contract was issued or renewed. In support of its position plaintiff cites Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 493 N.E.2d 748. Defendant responds that the maximum amount of underinsured motorist coverage which can be implied by law is the amount of bodily injury liability coverage actually selected by the insured. In support of its position defendant cites Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill. App. 3d 526, 499 N.E.2d 539, aff’d (1987), 118 Ill. 2d 430, 516 N.E.2d 268, and Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 525 N.E.2d 1076.

Defendant is correct that we previously considered this issue in Fuoss, wherein we reformed an automobile insurance policy to include underinsured motorist coverage in an amount equal to bodily injury liability limits selected by the insured. Because the plaintiff in Fuoss had already recovered from the person who hit him in an amount in excess of his own bodily injury limits, the reformation was a nullity and the summary judgments entered by the trial court were affirmed. Fuoss, 148 Ill. App. 3d at 535, 499 N.E.2d at 545.

As pointed out by our colleagues on the Second District Appellate Court, the conflict between our own district and the Third District in Logsdon was resolved by our supreme court in its review of our decision in Fuoss. (See Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 604, 525 N.E.2d 1076, 1083.) In Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268, our supreme court reviewed the relevant language in section 143a—2 of the Code:

“Section 143a—2(4) of the Code states: ‘The named insured may elect to purchase limits of underinsured motorist coverage in an amount up to the uninsured motorist coverage on the insured vehicle ***.’ (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 73, par. 755a—2(4).) It further provides that uninsured coverage may be purchased ‘in an amount up to the insured’s bodily injury liability limits.’ (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 73, par. 755a—2(1).) Should we reform Fuoss’ policy in accordance with the Code, we could imply coverage at no more than either $15,000/$30,000 (as the circuit court did) — the amount of his uninsured limits — or $25,000/$50,000 (as the appellate court did) — the amount of his bodily injury liability insurance. Under the most favorable reading of the Code, therefore, the defendants would be responsible for paying no more than $25,000 per person, ‘less those amounts actually recovered under the applicable bodily injury insurance policies *** maintained on the underinsured motor vehicle [which in this case is $100,000].” (Ill. Rev. Stat. 1981, ch. 73, par. 755a—2(3).) Since this $100,000 settlement is greater than the $25,000 maximum Fuoss could collect from the defendants, Fuoss incurred no damage as a result of the alleged violation and thus the circuit judge was correct in granting summary judgment in favor of the defendants.” 118 Ill. 2d at 433-34, 516 N.E.2d at 270.

In affirming our decision in Fuoss, our supreme court ultimately relied on the legislative intent found in the language of section 143a— 2 of the Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a—2). While the statute changed somewhat, as previously discussed, the language “in an amount up to the insured’s bodily injury liability limits” remains. (Ill. Rev. Stat. 1985, ch. 73, par. 755a—2(1).) As we are bound to follow the applicable decisions of our supreme court, such as Fuoss, we conclude that the maximum amount of uninsured motorist coverage and underinsured motorist coverage implied by law in this case is the amount of bodily injury liability coverage selected by plaintiff.

Ill

The other issue we are asked to consider is whether the trial court erred in holding plaintiff’s complaint insufficient as a matter of law. Plaintiff contends defendant waived its right to challenge the sufficiency of the complaint by answering and not challenging it until after the trial was completed. Defendant responds that the issue of sufficiency of the complaint was not waived because the issue was submitted to the trial court in defendant’s trial brief, which was given to the trial court before judgment was entered.

Section 2—615(a) of the Code of Civil Procedure provides that all objections to pleadings shall be raised by motions which “shall point out specifically the defects complained of, and shall ask for appropriate relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—615(a).) Section 2—612(c) of the Code of Civil Procedure provides that “[a]ll defects in pleadings, either in form or substance, not objected to in the trial court are waived.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—612(c).) “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—612(b).) Where a complaint substantially but imperfectly alleges a cause of action, the defendant waives any defect by answering it without objection and proceeding to trial (Galvin v. O’Neill (1946), 393 Ill. 475, 477, 66 N.E.2d 403, 405; County of Winnebago v. Willsey (1970), 122 Ill. App. 2d 149, 258 N.E.2d 138), particularly if the defect could have been remedied by amendment. Pathman Construction Co. v. Hi-way Electric Co. (1978), 65 Ill. App. 3d 480, 382 N.E.2d 453.

In the instant case, defendant answered plaintiff’s complaint, proceeded to trial and defended itself accordingly. It was not until the trial judge requested briefs from the parties that defendant even raised the issue of sufficiency of plaintiff’s pleadings. Clearly, the pleadings were not so bad in substance as to require a dismissal, since defendant was able to defend itself at a bench trial. Had defendant raised its objection in a timely manner, the alleged defects could have been cured. Further, we disagree with defendant’s contention that plaintiff’s lack of initiative in correcting the pleadings once the issue was raised in defendant’s trial brief constituted waiver.

While the complaint was defective, those defects could have been cured had defendant raised its objection to the pleadings in a timely manner, and defendant’s failure to raise the issue of sufficiency until it is so argued in its trial brief waived the issue. Therefore, we find that the trial court erred in holding plaintiff’s complaint was insufficient, as this issue was waived by defendant.

For the foregoing reasons, the judgment of the circuit court of Franklin County is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE H. LEWIS

text:
    DAVID P. KRAUSE, JR., by and through his Mother and Next Friend, Diana Krause, et al., Plaintiffs-Appellants, v. DU PONT PHARMACEUTICALS, INC., d/b/a Du Pont De Nemours Pharmaceutical Company, Inc., Defendant-Appellee (Oliver C. Anderson Hospital et al., Defendants).
    Fifth District
    No. 5—91—0278
    Opinion filed November 19, 1992.

      Drew C. Baebler, of Schlichter Law Associates, of Fairview Heights, for appellants.
    Robert A. Downing, Eugene A. Schoon, and Amy D. Mayber, all of Sidley & Austin, of Chicago, and Kenneth W. Bean, of Sandberg, Phoenix & Von Contard, of St. Louis, Missouri, for appellee.
   JUSTICE H. LEWIS

delivered the opinion of the court:

In December of 1989 a complaint was filed in the circuit court of Madison County on behalf of David Paul Krause, Jr., by his mother and next friend, Diana Krause, and by Diana Krause individually against various defendants, including Du Pont Pharmaceuticals, Inc. (Du Pont). The trial court granted Du Font’s motion to dismiss the count brought by Diana Krause individually against that defendant. In this appeal we are not concerned with any of the several other counts of the complaint. The trial court found that the action against Du Pont was barred by the statute of limitations and dismissed the claim against DuPont in this litigation. The trial court found there was no just reason for delaying enforcement or appeal. A timely notice of appeal was filed pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The only question before this court is whether the circuit court properly dismissed the plaintiff’s December 1989 claim against Du Pont as time barred.

The court considered the complaint, as amended, the motion to dismiss with attached exhibits, affidavits and documentation, and memoranda furnished by counsel. The defendants filed a motion to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619), which states in pertinent part:

“Involuntary dismissal based upon certain defects or defenses. (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(5) That the action was not commenced within the time limited by law.
* * *
(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.”

The applicable statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13—213(d)) provides in relevant part:

“Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred.”

The plaintiff contends on appeal that her cause of action against DuPont is not barred by the statute of limitations and the trial court should not have dismissed count II for that reason.

David P. Krause, Jr., was born on December 6, 1981, and suit was filed in December of 1989. Count II of Diana Krause’s initial complaint was dismissed on the grounds that she had not properly pleaded facts invoking the “discovery rule” of section 13—213(d). In an effort to comply with this rule, the plaintiff alleged the following in her second amended complaint:

“7. Diana Krause did not know and could not have reasonably discovered that David P. Krause, Jr. suffered from Coumadin related symptoms and defects prior to two years before this lawsuit was filed. Specifically, Diana Krause was never told by any doctors that David P. Krause, Jr.’s problems were caused by Coumadin; Diana Krause had no medical training that would have allowed her to come to this conclusion on her own; Diana Krause had not reviewed any medical records from David P. Krause, Jr.’s treatment that could have indicated to her that her son’s condition was caused from Coumadin. As a result, Diana Krause had no reason to be suspicious that David Krause’s problems were caused by Coumadin and had no way to independently discovery [sic] that her son’s problems were Coumadin related prior to two years before this lawsuit was filed. Further, DuPont never informed Diana Krause of the problems associated with Coumadin taken during pregnancy.”

It appears from the record that Diana became pregnant in 1981 and that prior thereto in February of 1981 Dr. Greaves had treated her for blood clots in her legs by prescribing Coumadin. Dr. Greaves told Diana not to become pregnant and to stop taking Coumadin if she became pregnant. In June or July of 1981 Diana suspected that she was pregnant and stated that she had stopped taking Coumadin “right then.” Her pregnancy was confirmed by Dr. Petroff. Dr. Greaves wrote her a letter in July of 1981 in which he told her that if she was pregnant, she should not take Coumadin.

On December 6, 1981, Diana gave birth to David, who, according to his mother, had problems immediately. He was born prematurely by breech delivery and suffered from birth trauma and blood clots as well as respiratory and numerous other problems, including cerebral palsy and the need for a heart shunt. He developed unusual features commonly associated with the mother’s ingestion of Coumadin during pregnancy.

In 1984 or 1985 Diana was again treated for blood clots and resumed taking Coumadin. While in the hospital during this illness, she was given two DuPont pamphlets regarding Coumadin, which she retained. She stated that she had read the pamphlets but that she had not been concerned about the contents because she could no longer become pregnant. According to her testimony, the pamphlets made her think it was dangerous to take Coumadin during pregnancy. She further testified that no one, including her doctor or personnel of Cardinal Glennon Hospital, specifically told her that the child’s problems at birth might have been caused by Coumadin. The medical records of her child documented suspected Coumadinrelated malformations. However, she never had access to these records and did not examine them.

In Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, the court stated:

“The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action. (United States v. Kubrick (1979), 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352; Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 1052-53; Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 913-14; Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 699; Greenock v. Rush Presbyterian St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266.) In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. (Lipsey [v. Michael Reese Hospital (1970), 46 Ill. 2d 32].) Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court. Berry [v. G.D. Searle & Co. (1974), 56 Ill. 2d 548].” Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 1214.

Further, in Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208, the court observed:

“The time when a plaintiff knew or should have known of her injury and its wrongful causation is ordinarily a question for the trier of fact, though where it is apparent from the undisputed facts that only one conclusion can be drawn, it is a question for the court. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Blair v. Blondis (1987), 160 Ill. App. 3d 184, 189, 513 N.E.2d 157, 160.) When a defendant raises a statute-of-limitations issue, a plaintiff must set forth facts sufficient to avoid the statute’s effect. (Cuerton v. American Hospital Supply Corp. (1985), 136 Ill. App. 3d 231, 237, 483 N.E.2d 187, 191.) A plaintiff has a burden of specifically pleading facts showing that the action was brought within the limitation period. (Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 897, 404 N.E.2d 496, 499; Kielminski v. St. Anthony’s Hospital (1979), 68 Ill. App. 3d 407, 408, 386 N.E.2d 326, 327.) When a plaintiff seeks to avail herself of the discovery-rule exception to an otherwise applicable limitation period, she has the burden of proving the date of discovery. Blair v. Blondis (1987), 160 Ill. App. 3d 184, 188, 513 N.E.2d 157, 159.” Ruklick v. Julius Schmid, Inc., 169 Ill. App. 3d at 1107-08, 523 N.E.2d at 1214.

In its order of February 20, 1991, dismissing the count against Du Pont, the trial court said in part:

“The undisputed evidence shows that in 1984 or 1985 Diana Krause was hospitalized for blood clots and was given Coumadin. During that hospitalization she was given two DuPont pamphlets on Coumadin which she testified that she read when she got them. Both of the pamphlets which plaintiff read contained language which warned that Coumadin should not be taken during pregnancy and that it might adversely affect the unborn child. The booklet made her conclude that it was dangerous to take Coumadin when you are pregnant. While this information by itself might not be sufficient to put her on notice concerning the cause of her son Paul’s problems, the information in question did not come to her in a vacuum.
At the time Diana Krause received the above information concerning Coumadin in 1984 or 1985, she was already in possession of significant facts. She knew she had taken Coumadin previously; she knew from Dr. Greaves that she should stop taking Coumadin if she became pregnant; she had stopped taking it when she suspected she was pregnant in early 1981; she had received a letter from Dr. Greaves in July, 1981, telling her to stop taking Coumadin if she was pregnant; and her son Paul, who was born of the 1981 pregnancy, had problems right from the start.”

We agree. In the instant case the evidence was uncontradicted that Diana had been warned in 1981, before becoming pregnant, not to become pregnant and to stop taking Coumadin if she did so. She believed that she should stop taking the drug as soon as she suspected she was pregnant. She received a letter from her doctor telling her to stop taking Coumadin. Furthermore, her son was born in 1981 with significant birth defects. Later she took Coumadin again for the treatment of blood clots and received and read pamphlets stating that taking Coumadin during pregnancy could adversely affect an unborn child. Diana acknowledged having read these warnings and said that they had caught her attention. It is also uncontradicted that neither the doctors nor Du Pont actually told her that the injuries to her son were caused by Coumadin.

The discovery rule as applied to this action means the cause of action does not accrue in the sense of triggering the statute of limitations until a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869; Blair v. Blondis (1987), 160 Ill. App. 3d 184, 513 N.E.2d 157.

We find that, at the very latest, the statute of limitations began to run in either 1984 or 1985. Thus, as a consequence of the plaintiff’s failure to file her action until December 1989, her cause of action was time barred.

Further, the plaintiff has the burden of proving the date of discovery when seeking to come within the “discovery” exception to the statute of limitations. (Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 413 N.E.2d 480.) This record reveals no effort by plaintiff to do so. She argues that on a motion to dismiss the question of discovery is an issue of fact and should be decided not by the court but by a jury. As the trial court did, we find it apparent from the undisputed facts that only one conclusion can be drawn; hence, the question is one for the court. (Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208; see also Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874.) In our judgment the trial court’s action in dismissing plaintiff’s cause against Du Pont was proper.

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

Affirmed.

CHAPMAN and W.A. LEWIS, JJ., concur.