author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL AVILA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0511
    Opinion filed March 1, 1989.

      Daniel J. Stohr, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant Daniel Avila guilty of criminal sexual assault with a minor family member. The trial court sentenced defendant to a term of four years’ imprisonment. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that he was denied an impartial jury; that the jury instruction on criminal sexual assault failed to include a mental state; that the court failed to sua sponte give a jury instruction on prior inconsistent statements; and that his sentence was predicated on erroneous considerations.

Defendant was convicted of criminal sexual assault following an incident on February 28, 1986, involving acts of cunnilingus and fellatio with his 16-year-old stepdaughter.

At trial, the victim testified that when she was seven or eight years old, her mother married defendant. When she was eight, defendant began fondling her and instructing her to fondle his genitals. The incidents typically occurred after school when her mother was at work.

By the time the victim was 10 or 11 years old, the sexual relations occurred three or four times a week. They first progressed to include oral sex, and later, vaginal intercourse. Typically the victim would return from school and find defendant had bathed and was waiting for her. He would tell her what she had to do. The victim testified as to the precise positions and sexual acts defendant instructed her to perform.

The victim initially believed the sexual demands were a normal thing to do. She later attempted to refuse defendant’s demands. He hit her with a belt two or three times when she refused to obey his orders to go into the bedroom. Defendant often warned that the victim would break up the family if she told anyone.

During high school, the victim argued with defendant more about the sexual demands. During one argument, the victim threatened to tell her mother. Defendant replied that he had already done so. The victim told her mother about it after arguing with defendant. Her mother yelled at defendant, “You better not be doing that again.” The victim did not tell her mother about it again because the victim believed her mother would not do anything about it.

When the victim was 15 years old, defendant began adoption proceedings. She appeared before a judge, who asked whether she had any complaints or objections to being adopted, and the victim replied “No.” She replied similarly to a guardian’s questions.

The sexual demands and routine continued. Defendant would often leave in the afternoon to take his children to hockey practice and would usually return home immediately. As a sophomore, the victim began participating in track after school and returned home by 6 p.m.

On February 28, 1986, the victim arrived home at 5:30 p.m. She began doing her homework when defendant told her to “wash up and go in the bedroom.” She complied with his demands for oral sex. This was the last day she engaged in any sexual conduct with defendant.

On March 3, 1986, the victim returned from track practice at 6 p.m. and found her mother waiting for her at the bus stop. She was angry because the victim had told her she would be home by 5:30 p.m. Her mother continued yelling at her on the way home and began hitting the victim with a whiffle bat. The mother told the victim that defendant was angry because she was not at home. The victim went to her room and remained in bed until the next day, when she telephoned her grandmother for help. Her grandmother in turn telephoned the victim’s father.

The victim’s father picked her up and asked what was wrong. “He had been asking me questions, you know, about why I was upset because I was crying. And then he said, ‘He isn’t messing with you, is he?’ And I started crying and I said, ‘Yes.’ ” The victim testified that part of the reason she did not want to go home after March 3 was because she had fought with her mother. She denied that she wanted to leave home so she could avoid taking care of her brothers and sister. The victim continued to live with her grandparents for several years and was an 18-year-old freshman in college when she testified.

Charles Whaley, the victim’s father, testified for the State that on March 4 he picked up his daughter, who was crying. When they arrived at his home, he asked her questions. On the following day, he reported defendant’s conduct to the Illinois Department of Children and Family Services’ child abuse hot line.

Mary Jo Avila, the victim’s mother, testified for defendant that during the years the victim lived at home, the mother worked from 2:30 p.m. to 11 p.m. She had three children from her marriage with defendant. The mother had never observed abnormal conduct by defendant and believed he was a very good father to all four children.

Prior to high school, her daughter “was nice and sweet and kind and very considerate to the other children and to me.” After entering high school, the victim became belligerent, hostile, and hard to control. The mother did not approve of her daughter’s choices of boyfriends.

The mother testified that on February 28 she telephoned her daughter at home at about 6 p.m. The mother knew defendant was at the ice rink with the other three children from 4 to 8 p.m. that day because the victim said there was nobody at home. On March 3, a holiday, the victim did not return from track practice until about 8 p.m., when they argued on the street about her lateness. The mother admitted beating her daughter with a whiffle bat because she “was tired of her lying to me, telling me she was one place, and I did not believe she was there.”

The mother described her relationship with defendant as adequate. She never saw him abuse any of the children. Neither her daughter nor defendant ever reported any type of sexual abuse. She stated, “I don’t know anything about any sexual abuse of a female child.”

The mother denied hearing any discussion where her daughter told defendant, “I’m going to tell my mother,” or where the mother told defendant “Don’t do it again.” The mother did not recall speaking to the Whaleys on March 9 when defendant was arrested. She denied telling Pearl Whaley that she knew defendant was sexually abusing the victim.

Defendant testified that he was a refuse collection coordinator for the City of Chicago. He denied having any sexual relations with the victim. He complained about her behavior. “You couldn’t tell her anything. You couldn’t talk to her.” Defendant testified further that he “hated to come home from work because every day, every day, the arguing, fighting and the bickering” with the victim was too upsetting. Consequently, he began taking the other three children skating every day at about 4 p.m. He always stayed at the ice rink.

The adoption of the victim by defendant was not completed “because we were having a lot of trouble with her.” He did not believe that she wanted to be part of the family, and he did not want to be responsible for her. Defendant denied ever hitting the victim with a belt.

On February 28, defendant was at the ice rink from about 4 p.m. until 8:30 p.m. He did not see the victim at all that night.

Pearl Whaley, the victim’s paternal grandmother, testified in rebuttal that on March 9 she was at the police station with her husband and the mother. Whaley asked the mother “if she had indeed known about this before, and she said that, yes, she had known of it prior, about two years ago, but she was under the impression that it had stopped.” On cross-examination, Whaley testified that she reported this conversation to the State’s Attorney and to a DCFS caseworker. In surrebuttal, the mother again denied having such a conversation with Whaley.

Defendant first contends that he was not proved guilty beyond a reasonable doubt. Courts of review are charged with a special duty to carefully examine the evidence in rape cases. (People v. Lewis (1984), 103 Ill. 2d 111, 468 N.E.2d 1222.) Nevertheless, in sexual abuse prosecutions where the testimony of the complaining witness is clear and convincing, or is independently corroborated, the reviewing court will not overturn a finding of guilty unless the evidence is so palpably contrary to the finding or so unreasonable and improbable as to cause a reasonable doubt as to defendant’s guilt. (People v. Lewis, 103 Ill. 2d 111, 468 N.E.2d 1222; People v. Goebel (1987), 161 Ill. App. 3d 113, 514 N.E.2d 60.) The reviewing court should not substitute its judgment for that of the trier of fact on questions involving the weight of evidence or the credibility of witnesses in cases involving alleged sexual offenses. People v. Laughlin (1987), 163 Ill. App. 3d 115, 516 N.E.2d 535.

In the present case, the victim testified that she suffered defendant’s molestation for eight years. She detailed the times, places and manner of the assaults, including the final incident, which occurred on February 28, 1986. Her specific, graphic testimony on both direct and cross-examination depicted a credible, unequivocal pattern of forced, incestuous relations. The victim described the steady progression over the eight-year period from inappropriate fondling, to oral sex, to intercourse. She offered credible testimony regarding defendant’s opportunities and access to her, noting that defendant initiated the sexual rituals three or four times a week after school, when her mother was at work and the younger children were at hockey or otherwise sent away from the bedroom area.

Typically, defendant bathed, awaited the victim’s return from school, and ordered her to bathe, cover herself with only a towel, and go to the bedroom. The victim testified, without inconsistencies, to the precise positions and sexual acts defendant demanded of her throughout her childhood and adolescence.

In regard to the final sexual assault, the victim testified that, consistent with his pattern throughout her childhood, defendant interrupted her homework, demanded she “wash up and go in the bedroom,” where she complied with his instructions for oral sex. When the victim returned from track practice on the following Monday, her mother met her outside the home, screaming at the victim and beating her with a whiffle bat. The victim remained in bed until the next day when she telephoned her grandmother for help. When the victim’s father questioned her about defendant’s conduct, the victim started crying and acknowledged the sexual abuse.

Defendant attacks the victim’s credibility mainly on the basis that she delayed reporting any abuse until she fought with her mother about an unrelated issue. The victim explained that when she was younger she did not understand the meaning of the sexual conduct and thought it was normal. As she became older, she understood it was wrong, but was led to believe by both defendant and her mother that she had no alternative but to comply. The victim recounted defendant’s accusations that she was trying to destroy the family, was being “mean,” and warned that she would get no help from her mother. Her mother confirmed this when she responded to the victim’s report simply by telling defendant, “You better not be doing that again.”

The victim also offered a reasonable explanation for her failure to make a prompt complaint of the February 28, 1986, incident. She portrayed a history of eight years of manipulation, abuse and feeling abandoned in a position of helplessness, believing that any resistance to defendant’s sexual demands was futile. The jury could believe that the victim finally left home as a result of both her stepfather’s sexual assaults and her mother’s violence. One reason did not preclude the other.

The jury was entitled to disbelieve the testimony of defendant and the victim’s mother. The jury was also entitled to give little weight to defendant’s implications that the victim’s testimony could be explained by the fact that children “see everything on TV. It is unbelievable what they see on TV today.”

The mother’s credibility suffered when the State perfected its impeachment of her testimony. Pearl Whaley testified that at the police station, the mother admitted knowing that her husband molested her daughter. She had been under the impression, however, that it had stopped when her daughter was 14 years old.

The jury could determine the credibility of the witnesses and reasonably conclude that the testimony of the victim was clear and convincing. The evidence is not so palpably contrary to the findings or so unreasonable and improbable as to cause a reasonable doubt as to defendant’s guilt.

Defendant next contends that the State violated the constitution when it exercised peremptory challenges to exclude one Hispanic and one black during voir dire. The equal protection clause forbids the State from peremptorily challenging potential jurors solely on account of race. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) Defendant must first establish a prima facie case of discrimination, after which the burden shifts to the prosecution to come forward with race-neutral explanations for striking the veniremen at issue. (Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The trial court’s findings as to whether purposeful discrimination occurred largely turn on an evaluation of credibility. Those findings, therefore, should receive great deference and will not be overturned on review unless they are found to be against the manifest weight of the evidence. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. Evans (1988), 125 Ill. 2d 50, 61, 530 N.E.2d 1360.

To establish a prima facie case of discrimination, defendant must first show that the State exercised its peremptory challenges to remove members of a cognizable racial group from the venire and that defendant is a member of that group. (Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351.) Defendant is Hispanic, which is a cognizable racial group. (Castaneda v. Partida (1977), 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272.) The State, however, did not exercise a “pattern” of challenges. There is no évidence presented which might raise an inference of purposeful discrimination. People v. McDonald, 125 Ill. 2d 182, 530 N.E.2d 1351.

The venire consisted of 45 persons. The racial composition is unknown. Defendant exercised six challenges. The State peremptorily challenged four veniremen. These included one black female and one Mexican, Hernandez Padilla. Padilla informed the court that he often returned to Mexico to work. He was presently unemployed in the United States. The State excused Padilla, and defendant objected, claiming that the State was improperly excluding Hispanics. The court noted Padilla’s statement about leaving the country and found no indication of discriminatory purpose.

Defense counsel suggested that another person, Roger Metoxen, might have been Hispanic, but the trial court disagreed. Defendant’s objection as to the challenge of Metoxen is waived, as defendant offered no independent evidence to establish the race of that potential juror. (People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360.) The court disagreed with defense counsel’s insistence that Metoxen was probably Latino since he “lived right off of 26th Street.” Moreover, Metoxen informed the court during voir dire, among other things, that a brother had been AWOL from the Marines and that a brother had been charged with possession of controlled substances. The trial court found that defendant failed to establish any discriminatory basis for the State’s challenge as to Metoxen.

The trial court concluded that there was no prima facie showing under Batson. The court noted that the jury had two blacks and that one of the alternates was a black woman. We agree with the trial court that defendant’s limited claim fails to establish a prima facie case of discrimination. It is not unconstitutional, without more, to strike one Hispanic and one black from the jury. (People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360, citing Batson v. Kentucky, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725.) The trial court’s determination that no purposeful discrimination occurred is not against the manifest weight of the evidence.

In regard to the sixth amendment argument, defendant maintains that he was denied his right to a fair-cross-section jury. However, that right does not apply at the petit jury stage. Buchanan v. Kentucky (1987), 483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906; People v. Crowder (1987), 161 Ill. App. 3d 1009, 1013, 515 N.E.2d 783.

Defendant next contends that the jury was improperly instructed as to criminal sexual assault because the instruction omitted any reference to intent. Defendant failed to object at trial and thus has waived the issue on review. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027; People v. Anderson (1981), 93 Ill. App. 3d 646, 653, 417 N.E.2d 663.) Moreover, standard Illinois Pattern Jury Instructions, Criminal, Nos. 11.26, 11.29, 11.31, and 11.32 (2d ed. 1981) were given, setting forth the elements of the criminal sexual assault statute. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13.) In addition, acts of sexual penetration involve general intent and do not require an allegation of a specific mental state from the nature of the act. People v. Gold (1967), 38 Ill. 2d 510, 516, 232 N.E.2d 702; People v. Ortiz (1987), 155 Ill. App. 3d 786, 792, 508 N.E.2d 490.

Defendant also complains that the trial court failed to sua sponte give a limiting instruction as to the mother’s prior inconsistent statements made to Whaley at the police station about her knowledge of the sexual relations between her husband and her daughter. Defendant failed to request such an instruction and thus has waived the issue. People v. Gacho (1988), 122 Ill. 2d 221, 252, 522 N.E.2d 1146.

Finally, defendant lists various allegedly improper factors considered by the court when sentencing him. A trial court’s sentencing determination will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) Defendant contends that the trial court abused its discretion when it improperly considered “the very facts of this offense.” The court may consider the seriousness of the offense. We also find it was not improper to consider defendant’s denial of guilt as it bears on his rehabilitation. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. Speed (1984), 129 Ill. App. 3d 348, 349, 472 N.E.2d 572.) The court could also properly consider defendant’s continued unemployment. People v. Birge (1985), 137 Ill. App. 3d 781, 792, 485 N.E.2d 37.

Defendant argues that the court improperly stated that defendant was not remorseful. The observation was accurate. Defendant’s only reference to remorse concerned his regret that he faced a prison sentence.

The trial court did not abuse its discretion in refusing to grant probation to defendant and did not abuse its discretion in sentencing defendant to four years’ imprisonment.

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

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    ZENITH VENDING CORPORATION, Plaintiff-Appellant, v. THE VILLAGE OF SCHAUMBURG et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—0621
    Opinion filed March 2, 1989.

      Jenner & Block and Jeffrey Schulman, both of Chicago (Russell J. Hoover and Kevin P. Whaley, of counsel), for appellant.

      Jack M. Siegel, of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, the Zenith Vending Corporation, applied to the Village of Schaumburg, Illinois (the Village), for a 1985 business license and for a business license for 1986. The village manager denied the application for each year. On administrative review, a committee of the village board of trustees upheld each of the village manager’s decisions.

Zenith brought an action in the circuit court of Cook County against defendants: the Village, two village managers, and the village clerk. The trial court upheld the 1985 license denial, but remanded the cause to the trustees for a second hearing on Zenith’s 1986 license application. Following a second hearing, the trustees again upheld the village manager’s denial of Zenith’s 1986 license application.

Zenith returned to the trial court. After reviewing the record of the second administrative hearing, the trial court upheld the trustees’ decision. Zenith appeals, contending that the findings and decision of the trustees, in each of the 1985 and 1986 hearings, were against the manifest weight of the evidence.

We affirm the judgments of the trial court.

Background

I

A brief review of Schaumburg’s licensing procedure is needed to better understand the facts in the case at bar. The operator of a business located in Schaumburg must annually apply to the Village for a license. After submission of the application to the village clerk, the chief of police investigates the applicant’s background and reports his findings to the village manager. Schaumburg, 111., Village Code §17— 18.

The village manager initially determines whether to issue a license. He may deny a license for any one of the following reasons:

“(a) That the applicant lacks good character and reputation in the community, which character and reputation may be determined by previous arrest record, association with persons known to lack good moral character, open and notorious adultery, or other acts of moral turpitude, or other conduct contrary to good morals;
(b) That the applicant has previously been charged and convicted with a violation of other ordinances of the Village or the Statutes of the State of Illinois, except for traffic violations;
(c) That the applicant has outstanding judgments against him, or is otherwise determined to be not financially able to carry out the activities for which a license is sought;
(d) That the applicant and/or his representative in any way falsifies an application for a license to conduct any business within the Village of Schaumburg.” Schaumburg, 111., Village Code §17-18.

If the village manager denies a license application, the applicant can request a hearing before the public safety, health, and human resources committee of the Schaumburg board of trustees. The trustees must then hold a hearing, where the applicant may be represented by counsel and present evidence. The trustees then determine whether the village manager properly denied the license based on one or more of the above-stated grounds. If the trustees determined that the village manager improperly denied the license, or that the applicant’s infractions were inadvertent or insignificant, then they may order the issuance of the license. Schaumburg, 111., Village Code §17 — 18.

II

The record shows that Zenith sells cigarettes through vending machines, which it places and services in business establishments. Zenith began its relationship with the Village with its application for a 1978 business license. The completed application indicated that James Con-tis, a salesman for Zenith, was Zenith’s manager.

The village manager initially denied the application because Contis had a prior police record. Kenneth Leonard, then owner of Zenith, contacted various Village officials and informed them that Contis was not a manager. Leonard explained that Contis simply lacked the energy to obtain Leonard’s signature. The village manager allowed Zenith to resubmit an application for a 1978 license bearing Leonard’s signature, which he subsequently approved.

In 1980, George Moreno became the owner of Zenith, in addition to the Zenith Tobacco Company, and Apex and Deluxe Cigarettes. In 1982, Zenith acquired the stock of the other companies from Moreno.

The village manager denied Zenith’s application for a 1985 business license. He concluded that Zenith failed to identify Moreno as its owner and Contis as its manager and to provide requested information relating to each. The village manager allowed the corporation to submit an amended application providing the requested information. The amended application for the 1985 license identified Larry C. Berndt as president of Zenith, Ben Silverstein as secretary, P.J. Or-rico as treasurer, and James Contis as manager. The amended application also described Moreno’s ownership interest in Zenith, Zenith’s ownership of the other companies, and Contis’ arrest record. The village manager denied the amended application.

On December 12, 1985, the trustees’ public safety committee held a hearing to review the village manager’s denial of the application. The Village’s only witness was Police Captain Alley. Alley stated essentially that: (1) Zenith lacked good character and reputation in the community due to its link with leaders of organized crime; (2) Zenith falsified its previous applications by failing to identify Moreno as its owner and Contis as its manager; and (3) Contis had been convicted of crimes. Two attorneys for the corporation were allowed to rebut Alley’s statements. At the close of the hearing, the committee upheld the village manager’s denial of Zenith’s 1985 license application.

Zenith later submitted to the village manager an application for a 1986 business license. The application contained the same information as did the amended 1985 application. The village manager denied the application.

On February 13, 1986, the trustees’ committee held a hearing to review the license application denial. Captain Alley again was the Village’s only witness. He relied on his statement at the 1985 hearing, adding only a few remarks. Following a rebuttal by Zenith’s attorney, the committee upheld the village manager’s denial of Zenith’s 1986 license application.

On March 26, 1986, Zenith filed an amended, multicount complaint in the trial court against defendants. Zenith alleged that: (1) following review of the 1985 and 1986 hearings by certiorari, those decisions should be reversed; (2) the 1985 and 1986 hearings deprived it of procedural due process; (3) the Village’s 1985 and 1986 license denials deprived it of substantive due process; and (4) portions of Schaumburg Village Code section 17 — 18(a) were unconstitutionally vague and overbroad.

Defendants moved to dismiss the amended complaint and Zenith moved for summary judgment. On November 10, 1986, the trial court denied defendants’ motion to dismiss and granted in part and denied in part Zenith’s motion for summary judgment. The trial court first found that that portion of section 17 — 18(a), which prohibits “association with persons known to lack good moral character,” was unconstitutionally vague and in violation of the first amendment to the United States Constitution (U.S. Const., amend. I). The court found that the 1985 licensing hearing did not deprive Zenith of procedural due process. Also, after review by certiorari, the court upheld the decision reached at the 1985 hearing.

The trial court, however, found that the 1986 hearing did nothing but repeat unsworn testimony, was impermissibly limited, and denied Zenith due process. The court ordered defendants to hold a new hearing on Zenith’s 1986 license application.

On remand from the trial court, the trustees’ committee held a second hearing on Zenith’s 1986 license application denial. The record shows that both Zenith and the Village were represented by counsel. Additionally, the committee required witnesses to testify under oath, offered both sides an opportunity for cross-examination, and imposed no restrictions on time or production of evidence.

In an order entered February 10, 1987, the trustees’ committee again upheld the village manager’s denial of Zenith’s 1986 license application. The committee found that the village manager’s decision was proper under sections 17 — 18(a), (b), or (d). The committee disregarded that portion of subsection (a) which the court struck down as unconstitutional. Among its detailed findings, the committee found essentially that: (1) Zenith lacked good character and reputation in the community, in violation of subsection (a), due to its link with leaders of organized crime; (2) Contis had been charged with and convicted of crimes, in violation of subsection (b); and (3) Zenith falsified its previous applications, in violation of subsection (d).

Zenith returned to the trial court, seeking judicial review of the committee’s February 10, 1987, order. After review by certiorari, the court upheld the decision in an order entered January 28, 1988. The trial court disregarded the evidence of an alleged connection between Zenith and leaders of organized crime, ruling that the evidence was worth little weight. The trial court also found no evidence that Contis had ever been convicted of a crime. Thus, the court ruled that the committee’s finding regarding Contis’ arrest record was against the manifest weight of the evidence.

The trial court found, however, that the record contained evidence to support the committee’s finding on the falsification issue. Specifically, the record contained evidence that Zenith, on previous applications, failed to identify Moreno as its owner and Contis as its manager. The court found that the evidence of falsification supported also the committee finding that Zenith lacked good character and reputation in the community.

Following the entry of its order, the trial court found that there was no just reason to delay the enforcement or appeal of its November 10, 1986, order. (See 107 Ill. 2d R. 304(a).) Zenith appeals from both the November 10,1986, and the January 28,1988, orders.

Opinion

I

Defendants first contend that the trial court should have dismissed this action based on the doctrine of res judicata. The record shows that Zenith filed its original complaint in this cause (No. 85— CH — 11332) on November 13, 1985, after the village manager denied its application for a 1985 business license. Zenith also filed an action in Federal district court on November 30, 1985 (No. 85 — C—9782), and another in the circuit court of Cook County on December 17, 1985 (No. 85 — CH—12544). The latter two causes were eventually dismissed.

Defendants now contend that the doctrine of res judicata barred Zenith from filing its amended complaint challenging the committee’s December 12, 1985, and February 13, 1986, decisions. Defendants argue that the amended complaint raised the same issues as were raised in the other circuit court action (No. 85 — CH—12544) and the Federal district court action (No. 85 — C—9782). Thus, Zenith could have litigated these issues in the prior actions. Consequently, the doctrine of res judicata barred Zenith from raising them in its amended complaint in this cause.

The doctrine of res judicata provides that a final judgment on the merits, rendered by a court of competent jurisdiction, is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action. The doctrine extends not only to what was actually decided in the original action, but also to all grounds of recovery or defense that could have been decided in the original action. People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851, 853-54; Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 524, 395 N.E.2d 1143, 1148.

Thus, before an adjudication can bar a subsequent action, it must be determined whether the first action resulted in a final judgment on the merits. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 69, 360 N.E.2d 773, 775.) A judgment cannot bar a subsequent action unless it is a final judgment on the merits, adjudicating the contested rights in a conclusive and definitive manner. People ex rel. Williams v. Board of Education (1932), 350 Ill. 597, 601, 183 N.E. 633, 634.

Defendants made this argument in their motion to dismiss the amended complaint. The trial court properly rejected defendants’ argument and denied the motion. Based on the above principles, we likewise reject defendants’ contention.

The record shows that the lawsuit in the circuit court of Cook County (No. 85 — CH—12544) was dismissed solely because of this pending suit and the suit pending in Federal district court. The dismissal was never intended to be a final judgment on the merits. Indeed, we note that Zenith appealed the dismissal to this court. We remanded the cause for consolidation with this action, which the trial court’s November 10, 1986, order reflects. These facts show that the dismissal of the lawsuit in No. 85 — CH—12544 was meant solely to assure that the issues would be considered in one cause and not multiple causes. Therefore, the dismissal was not a final judgment on the merits.

The dismissal of the Federal district court action (No. 85 — C— 9782) presents an even stronger case against the application of res judicata. The record shows that the Federal court dismissed that lawsuit by agreement of the parties. Of course, the dismissal was never intended to be a final judgment on the merits. Indeed, it was an accommodation to defendants, allowing them to defend the issues in one cause and not multiple causes. Once the issues were consolidated in one suit, defendants could not raise the dismissal as a bar. (See Bernhardt v. Fritzshall (1973), 9 Ill. App. 3d 1041, 1047-48, 293 N.E.2d 650, 655.) We hold that the doctrine of res judicata did not bar Zenith’s amended complaint.

II

We now reach the heart of this appeal. Was the committee’s February 10, 1987, decision, which upheld the village manager’s denial of Zenith’s 1986 business license application, against the manifest weight of the evidence? In its January 28, 1988, order, the trial court reviewed the committee’s decision by way of certiorari.

In a certiorari proceeding, the relevant records of the administrative agency are brought before the court. The record must show that the agency acted upon evidence, and it must contain the evidence upon which the agency based its decision. The trial consists only of an inspection of the record; the court cannot consider any matter not appearing in the record. The only province of the trial court is to ascertain from the record whether the agency had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether the agency’s decision is discreet or wise, but only whether there is anything in the record that fairly tends to sustain the agency’s action. The question before the court is never whether there is any evidence fairly tending to support the order reviewed. Where the agency is not arbitrary in its findings and where the record contains evidence that fairly tends to support the findings, a reviewing court may not substitute its judgment for the discretion and judgment of the agency. Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 884, 324 N.E.2d 65, 70 (and cases cited therein).

When reviewing a record by certiorari, the applicable standard is whether there is any evidence in the record reasonably tending to sustain the agency’s decision. The reviewing court has no power to weigh the evidence; the case is not retried. If there is any evidence that fairly tends to sustain the agency’s decision, it cannot be disturbed. (25 Ill. App. 3d at 890, 324 N.E.2d at 74.) In other words, a court may not set aside an agency’s determination unless it is palpably or manifestly against the weight of the evidence. Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 15, 338 N.E.2d 186, 188, quoting Superior Coal Co. v. O’Brien (1943), 383 Ill. 394, 400-01, 50 N.E.2d 453, 457.

Additionally, we agree with the trial court that this record contains rank hearsay evidence. True, where hearsay evidence appears in an administrative record, the fact finder may not consider it in reaching a decision. Any factual determination based on hearsay and unsupported by other competent evidence in the record must be reversed. (Shapiro v. Regional Board of School Trustees (1983), 116 Ill. App. 3d 397, 408, 451 N.E.2d 1282, 1290.) However, the converse is also true: where a record contains competent evidence to support an administrative decision, the improper admission of hearsay testimony in the administrative proceeding is not prejudicial error. Goranson v. Department of Registration & Education (1980), 92 Ill. App. 3d 496, 501, 415 N.E.2d 1249, 1253.

Applying these principles to the case at bar, we uphold the trial court’s judgment. Put simply, the record of the committee’s February 10, 1987, decision contains evidence that fairly tends to support the decision.

We focus on the committee’s finding that Zenith falsified its previous business license applications. The form of the Village’s business license application changed between 1978, when Zenith applied for its first license, and 1985, when the committee held its hearing on Zenith’s license denial. However, at least as far back as 1983, the application plainly and clearly requested information on, inter alia: (1) the business’ manager or agent, and (2) the company’s ownership.

The record shows that in its 1983, 1984, and first 1985 business license applications, Zenith did not answer various questions regarding its manager or agent. However, the record contains evidence that Contis was indeed Zenith’s manager during those years. Zenith placed advertisements in trade magazines which described Contis as “operations manager.” Trade magazine articles also described Contis as “operations manager.” Contis himself issued newsletters in which he described himself as “director of operations.” It was not until Zenith submitted its amended 1985 license application that it listed Contis as its manager.

Also at least as far back as 1983, the Schaumburg business license application requested information on the company’s ownership. Specifically, the application plainly and clearly asks a corporate applicant to identify not only its principal officers, but also any additional principals. The record shows that in its 1983, 1984, and first 1985 business license applications, Zenith did not provide the Village with any information on Moreno. However, the record contains evidence that Moreno became the owner of Zenith in 1980. Again, it was not until Zenith submitted its amended 1985 license application that it described, or even identified, Moreno as its owner.

Zenith argues here, as it argued before the trial court, that its failure to provide the requested information on Contis and Moreno was an inadvertent or insignificant infraction, excusable under section 17 — 18 of the Schaumburg Village Code. We agree with the trial court that the committee viewed the issue differently, and that the trial court could not, as we cannot, substitute our view of the evidence for that of the committee.

This record contains evidence that supports the committee’s finding that Zenith violated Schaumburg Village Code section 17 — 18(d). As stated earlier, section 17 — 18 provides that a violation of any one of its four subsections is sufficient to deny a business license application. Consequently, we affirm the trial court’s January 28, 1988, order upholding the decision of the Public Safety, Health, and Human Resources Committee of the Schaumburg Board of Trustees, which in turn upheld the village manager’s denial of Zenith’s application for a 1986 business license.

Zenith appeals also from the trial court’s November 10, 1986, order, which reviewed the committee’s December 12, 1985, hearing. Zenith contends that the committee’s decision, which upheld the village manager’s denial of its 1985 business license application, is also against the manifest weight of the evidence. We agree with Zenith that both hearings raised the same issues. Further, after reviewing the 1985 administrative record by certiorari, the trial court upheld the committee’s decision on the same grounds as it subsequently upheld the committee’s February 10, 1987, decision. As with the February 1987 decision, we agree with the trial court that the committee’s December 12, 1985, decision was not against the manifest weight of the evidence.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD T. JOINTER, Defendant-Appellant.
    First District (5th Division)
    Nos. 1—87—2084, 1— 87—2283 cons.
    Opinion filed March 3, 1989.

      Jonathan Minkus, of Jonathan Minkus & Associates, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Andrea K. Muchin, Douglas J. Bank, and Andrew LeFevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was convicted of burglary (111. Rev. Stat. 1985, ch. 38, par. 19 — 1) of a Conrail Corporation (Conrail) railroad freight car and was sentenced to four years’ imprisonment. On appeal, defendant raises the following points in favor of reversal: evidence produced at trial was insufficient to prove beyond a reasonable doubt that defendant was accountable for the burglary of the railroad car; the trial court improperly denied defendant the right to elicit testimony regarding motive for his arrest; the trial court improperly relied on defendant’s past criminal record in determining guilt; and defendant’s right to a fair trial was denied because the court “acted as an advocate for the State.”

For reasons which follow, we affirm. We summarize below evidence pertinent to our disposition.

Prior to presentation of witnesses, the parties stipulated that, if Donald Corp, a Conrail security officer, was called to testify, he would state that he did not give defendant permission to either enter any Conrail railroad car on October 11, 1986, or possess any of the boxes of merchandise inside any railroad car under the custody or control of Conrail on that date. Corp would further testify that, after being notified by police, he went to the Chicago police station at 22nd and Da-men Streets and identified, for Officer Linda Kennedy and another officer, 13 boxes and their contents as coming from a Conrail railroad car.

The record indicates that when the assistant State’s Attorney began to enumerate specific contents, the trial judge interjected that Corp would testify with regard to “the document listed in the [State’s] answer to discovery.” Defendant’s counsel so stipulated.

We note here that the State’s “Answer to Discovery” refers specifically to documents regarding evidence inventoried by the Chicago police department in conjunction with the charge against defendant. The inventory receipt related to defendant’s arrest recited, as recovered items, “1 case of Isotoner gloves, 2 cases [of] Aris gloves and socks, 2 cases [of] Orrefors crystal, 2 cases [of] Lancome purses, 4 cases [of] Lancome nylon briefs, and 1 case [of] Parisian table clothes.”

Chicago police officer Linda Kennedy, the State’s only witness, testified that, at approximately 1:41 p.m. on October 11, 1986, while she was on routine patrol in a squad car, she was notified by radio of a burglary in progress at Cermak Road and Christiana Street, approximately one block away from her then present location. Kennedy testified that, as she proceeded southbound on Christiana Street toward the railroad cars, she observed several people on the railroad tracks located on an embankment above street level. There were two individuals in an opened railroad car and as many as six individuals nearby. While still in the squad car, she observed an individual she identified as defendant reach into a railroad car and receive, from someone inside, a cardboard box. The record indicates she demonstrated for the court the manner in which defendant reached inside the railroad car to receive the cardboard box. She testified that her view of defendant was unobstructed and that she observed defendant from approximately 30 feet away. Kennedy testified that after receiving the cardboard box, defendant turned and came down the embankment. When he came through a hole in the fence at the bottom of the embankment, she placed him under arrest. Another officer aided Kennedy.

Kennedy further testified that she observed several cardboard boxes strewn about the tracks. Approximately 13 boxes were recovered and were taken to the police station. The box taken from defendant was put into the back of her squad car and was also taken to the police station. Kennedy stated she was present when Corp later identified the boxes.

The following exchange took place regarding the cardboard box defendant had in his possession when arrested:

“Q. [Assistant State’s Attorney]: The box that you had recovered from [defendant], was that box open?
A. [Kennedy]: Yes, sir.
Q. [Assistant State’s Attorney]: What if anything was found inside that box?
[Defendant’s Counsel]: We will stipulate to what was found.
THE COURT: The same stipulation that those items—
[Assistant State’s Attorney]: Were taken from the Conrail boxcar as stipulated to by the Conrail officer as belonging to that particular boxcar.
[Defendant’s Counsel]: Yes, judge.”

On cross-examination, Kennedy admitted that, as she proceeded to the scene, she focused her attention on individuals running from the railroad car. She also stated that she was accelerating in order to quickly arrive at the scene. She admitted that she did not question defendant after placing him under arrest nor did she recall what defendant was wearing at the time of arrest. Kennedy stated, however, that defendant was “very dirty” and did not appear to be on his way to work. No other individuals were arrested because they escaped.

On redirect examination, Kennedy testified that she never lost sight of defendant from the time he left the location of the railroad car to the time he went to the hole in the fence.

Jackie Berry, the manager of a Kentucky Fried Chicken restaurant where defendant was employed, testified for the defense. Berry testified that on October 11, 1986, defendant was scheduled to begin work at 3 p.m. but was telephoned to come in earlier, at 1 p.m. Defendant did not show up for work.

Defendant testified on his own behalf. Defendant testified that in 1975 and in 1978 or 1979 he was convicted of burglaries, serving prison sentences for the convictions. In connection with the second conviction, defendant also worked on work release and was paroled. He had no problems and was released for parole early. Soon after being released from prison, he found employment. In 1985 he began working at the Kentucky Fried Chicken restaurant.

Defendant stated that, on the day in question, from approximately 12 to 12:15 p.m., he was sitting on the porch at his girlfriend’s house at 2126 South Christiana Street, three houses north of the railroad tracks. Defendant stated that while he was sitting on the porch, he observed individuals on Christiana Street with boxes. That activity continued for about 20 minutes before the police arrived. He stated he left his girlfriend’s house at 12:20 p.m. and began walking down Christiana Street on his way to work a few blocks away. His girlfriend’s daughter was with him. He was wearing a Kentucky Fried Chicken uniform. He observed approximately 15 “kids running around breaking into freights.” Defendant stated that such a scene was common. He did not stop walking. Defendant testified the police arrived and he was arrested. The time was approximately 12:45 p.m.

On cross-examination, defendant admitted that in 1978 he was involved in not one, but two burglaries.

The 10-year-old daughter of defendant’s girlfriend also testified. She testified that she was on the porch with defendant on October 11, 1985, and accompanied defendant when he left to walk to work. She saw “some boys running down at the corner with boxes.” She saw the defendant get stopped by the police right by the railroad tracks. She stated that she did not see defendant on the railroad tracks.

On cross-examination, she stated that Officer Kennedy did not have to walk any distance down the railroad tracks to get to the railroad car; it was directly up the embankment from the location of the hole in the fence. She stated that defendant had seen the activity around the railroad car while they were sitting on the porch. However, she testified she never saw defendant leave the porch and go over to the railroad car to get a box.

Opinion

We consider, first, whether evidence adduced at trial was sufficient to prove defendant guilty of burglary beyond a reasonable doubt. We address, in turn, each of the arguments raised by defendant in support of that contention.

Defendant argues that stipulations entered between the parties were ambiguous and did not establish that the cardboard box defendant had when arrested belonged to Conrail or that it was taken from the railroad car burglarized.

We are not persuaded by defendant’s argument. First, defendant’s arrest report refers directly to the document number of the inventory receipt filled out at the time of defendant’s arrest. That corresponding receipt lists the specific items of merchandise recovered in connection with defendant’s arrest; the same items the assistant State’s Attorney began to enumerate in explaining the scope of Corp’s stipulated testimony before the trial judge interjected reference to the State’s “Answer to Discovery.” Second, it is not disputed that defendant’s counsel stipulated that Corp’s testimony would include testimony pertaining to “the document listed in [the State’s] Answer to Discovery.” The State’s “Answer to Discovery” specifically refers to items inventoried in the course of defendant’s arrest. Thus, contrary to defendant’s assertions that the stipulations do not establish a connection between the items recovered and those in defendant’s possession, the stipulations, when considered together, clearly indicated that the items recovered in conjunction with defendant’s arrest were in the control or custody of Conrail.

Further, in focusing entirely on the stipulations and ignoring the testimony of Kennedy, defendant’s argument fails to consider that the elements of an offense can be proven by inference from the evidence. (People v. Flowers (1977), 52 Ill. App. 3d 301, 367 N.E.2d 453.) Here, sufficient evidence exists in the record otherwise justifying an undeniable inference that the cardboard box defendant had when arrested belonged to Conrail and that defendant received that property during the commission of a burglary. Kennedy testified that she observed defendant receive, from someone inside the railroad car, the cardboard box defendant had in his hands when she arrested him. Kennedy further testified that that particular box, like the others, was taken to the police station where the boxes were identified by Corp as the property of Conrail.

Defendant next contends that the State failed to prove defendant shared the intent of the burglars or that defendant’s actions were in common with those of the burglars such as to support defendant’s conviction on the basis of accountability. Defendant relies primarily on People v. Zierlion (1959), 16 Ill. 2d 217, 157 N.E.2d 72.

In Zierlion, four men entered an office of Martin Oil Service, Incorporated, and pushed a company safe out of a window. When it proved too heavy to move, the four men left to get assistance. Defendant was arrested when he returned with the four men in an automobile to retrieve the safe. The supreme court reversed defendant’s subsequent conviction for burglary because the court determined there was no proof that defendant participated in any way in the original entry. By merely assisting the principals in moving the safe, the court reasoned, defendant became an accessory after the fact, an independent offense, but could not be found guilty of burglary based on accountability. Zierlion, 16 Ill. 2d at 218, 157 N.E.2d at 73.

Zierlion cannot control the disposition of the instant appeal. Unlike the circumstances of Zierlion, the record here contains testimony placing defendant at the scene and actively participating in a burglary in progress. Evidence further exists showing that defendant possessed merchandise from that burglary. The fact that there was no direct evidence to show that defendant participated in the actual break-in of the railroad car or formed the intention to rob the railroad car until after it had been broken into is irrelevant to the issue of whether defendant is legally accountable for the burglary. Under section 19 — 1 of the Criminal Code of 1961, unauthorized entry into a railroad car with intent to commit theft constitutes burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1.) The essential elements of that offense, entry with the requisite intent, are satisfied through legal accountability when an individual simply aids or abets another in the commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 5 — 1, 5— 2.) In determining whether an individual aided or abetted a crime, the trier of fact may consider evidence that the individual was present at the scene and lent his approval. People v. Washington (1978), 63 Ill. App. 3d 1037, 380 N.E.2d 1010.

In the instant case, Kennedy’s testimony did not merely place defendant at the scene of a burglary in progress. Her testimony established specifically that defendant reached into the open railroad car and received, from someone inside, a cardboard box. Kennedy testified that defendant carried the box away from the railroad car down the embankment. That testimony alone is sufficient to support defendant’s conviction on the basis of legal accountability.

Defendant also contends that Kennedy’s testimony was not credible and was not sufficient to form the basis of a guilty verdict.

It is well settled that the testimony of a single -witness is sufficient to convict if that testimony is positive and the witness credible, even though the testimony is contradicted by the accused. (People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.) Further, issues respecting credibility of witnesses are properly relegated to the finder of fact, in this case the trial judge, not a reviewing court, because, as the supreme court has recently observed:

“[The trier of fact] can observe [witnesses’] personalities, their abilities to perceive, their levels of cognition, their attitudes, nonverbal communications such as body English, their levels of recall, and their abilities to communicate verbally. The reviewing court must glean these facts from the ‘cold record.’ ” People v. Hendricks (Ill. S. Ct. No. 63803, November 1988), citing Hartman, Judges May Differ: Another Look at Judicial Decision Making, 76 Ill. B.J. 540, 541 (1988).

We find no merit in defendant’s contentions that the testimony of Kennedy did not provide a sufficient basis to convict defendant. As stated above, Kennedy’s testimony positively established defendant’s activities with respect to the open railroad car. We are satisfied that the trial judge, having had firsthand opportunity to hear and observe Kennedy testify, determined that testimony credible enough to support a conviction. We find no basis to conclude otherwise.

Defendant also contends that the trial judge improperly considered defendant’s past criminal record in determining defendant’s guilt. In arguing that point, defendant’s opening brief draws the court’s attention to the following comment:

“I [the trial judge] see someone with a prior criminal record deciding that he *** is [sic] going to get something free *** entered on the premises and [was] handed the boxes [sic] down from the car and proceeded to walk away with it when he was arrested.”

Our review of the record, however, reveals that the quoted passage is from the transcript of the hearing held June 19, 1987, in which the trial judge ruled on defendant’s post-trial motions and conducted a presentence investigation. The above comment was made immediately prior to imposition of defendant’s sentence. When defendant was found guilty at the trial’s conclusion on May 15, 1987, no such reliance on defendant’s prior criminal record was made.

Finally, we decline to consider the defendant’s contentions that he was denied a fair trial because the trial judge acted as an “advocate for the State” and that he was prejudiced by the court’s refusal to permit cross-examination of Kennedy regarding motive for defendant’s arrest as we conclude defendant waived the opportunity to raise either issue on appeal. Although defendant filed a motion for a new trial following his conviction for burglary, that motion fails to state with specificity the reasons now urged as having denied defendant the right to a fair trial or as having caused prejudicial error. As we have observed, conclusory allegations contained in written post-trial motions are insufficient to preserve specific issues for consideration on review absent application of the limited “plain error” exception. (People v. Thomas (1984), 121 Ill. App. 3d 883, 460 N.E.2d 402.) After carefully reviewing the record, we are not convinced that the evidence was so closely balanced or the errors so prejudicial as to invoke that exception. We therefore affirm the judgment of the circuit court.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERSKIN MELCHOR, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1003
    Opinion filed March 7, 1989.

      John L. Gubbins, of John L. Gubbins & Associates, Ltd., of Chicago, for appellant.
    Richard M. Daley, State's Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Erskin Melchor, a former Chicago police officer, was charged with two counts of delivery of a controlled substance. After a jury trial, defendant was found guilty and sentenced to 10 years in the Illinois Department of Corrections.

Defendant was previously tried and convicted of the same offense. That conviction was reversed and remanded for a new trial because of improper use of an unauthenticated transcript of a tape recording. (People v. Melchor (1985), 136 Ill. App. 3d 708, 483 N.E.2d 971.) At the new trial, the prosecution corrected its previous errors and successfully introduced a series of recordings incriminating the defendant.

On appeal, the defendant does not complain about this particular evidence or the sufficiency of the evidence of guilt. However, defendant seeks a new trial on the grounds that the trial court denied him a fair trial by refusing to give the jury an “informer” instruction tendered by defense counsel and, in the alternative, a remand for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to determine if the prosecution used its peremptory challenges in a discriminatory manner.

During the jury selection, the State excused a total of eight jurors. Defendant objected to the State’s exclusions, noting that six of the potential jurors were black. The court made inquiries of the State regarding each of the six complained-of exclusions. The State related specific reasons which did not involve race and called the court’s attention to the fact that four of the jurors accepted and one alternate were black. The State also exercised a peremptory challenge to excuse a potential alternate juror who was white. The court overruled defendant’s objection and the case proceeded to trial.

At trial, the evidence established that Gregory Grant made three controlled purchases of cocaine from the defendant while both were members of the Chicago police department. On April 16, 1982, a search warrant was executed at Grant’s apartment, where cocaine, marijuana, and $15,000 in cash were confiscated. Later that day, Grant met with a representative of the State’s Attorney and officials of the Internal Affairs Division (IAD) of the Chicago police department. Grant agreed to cooperate with the authorities in their undercover investigations. The agreement included a guilty plea from Grant in June 1982, for selling cocaine, and a term of five years’ probation in exchange for his truthful testimony in the numerous cases he had helped investigate regarding police officers selling cocaine. Grant continued to work as a police officer from April 16, 1982, until June 1982. He was placed in the Federal Witness Protection Program and given a new identity to insure his safety.

During the investigation, Grant had several conversations with defendant. The first conversation took place on April 20, 1982. Grant placed the phone call to defendant’s telephone number from the State’s Attorney’s office. Sergeant Thomas Chandler, a Chicago police officer, was listening on an extension telephone. Grant then was given $500 and drove to defendant’s apartment, where he bought one-eighth ounce of cocaine for $300. Grant then delivered the purchased cocaine and cash balance to the investigators.

The next phone call was placed to defendant’s residence on April 22, 1982, from a pay phone near the Museum of Science and Industry. Pursuant to authorization, Grant was fitted with a tape recorder and transmitter. He was given $400. Grant then drove to defendant’s apartment, where he purchased a bag of cocaine for $275. He delivered the bag of cocaine and the unused portion of the cash to the investigators.

On May 3, 1982, Grant again placed a call to defendant from the Museum of Science and Industry. He was equipped with a recorder and transmitter, and provided with $4,000. Grant drove to defendant’s residence, where he purchased SIVa grams of cocaine for $2,950. He delivered the cocaine and the remaining cash to the investigators.

It is not necessary to recite the detailed mechanics of the recording, authentication, transcription and introduction in evidence of the specific unlawful acts with which the defendant was charged. The State complied with all of the legal requirements for the introduction of this incriminating evidence. The defendant does not assign any error in this regard.

The only witness for the defense was defendant’s sister, Rosa Melchor. She testified that she did not recognize her brother’s voice on any of the tapes submitted by the State.

After all the evidence was heard, a jury instruction conference was held. Defendant tendered a non-Illinois Pattern Jury Instructions (IPI) instruction dealing with the testimony of an informer. The instruction was directed at the testimony of Grant. The court sustained the State’s objection.

The jury found defendant guilty. He was sentenced to 10 years’ imprisonment. Defendant appeals.

I

Defendant contends that the refusal to give his non-IPI instruction is reversible error that requires a new trial.

The jury was instructed concerning the credibility of the witnesses with IPI Criminal 2d No. 1.02, which provides:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.” (IPI Criminal 2d No. 1.02.)

The defense tendered the following instruction from the Federal Jury Practice and Instructions, Devitt and Blackmar:

“The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by interest, or by prejudice against the defendant.” (1 E. Devitt & C. Blackmar, Federal Jury Practice & Instructions §17.02 (3d ed. 1977).)

The trial court refused this non-IPI instruction on the ground that IPI Criminal 2d No. 1.02 adequately instructed the jury as to the credibility of all the witnesses.

Whenever a party tenders an instruction which is not found in IPI Criminal, the trial court has discretion to determine whether the instruction should be given. (107 Ill. 2d R. 451(a); People v. Moore (1980), 89 Ill. App. 3d 202, 209, 411 N.E.2d 579.) A non-IPI instruction must be simple, accurate, and properly advise the jury of an applicable principle of law. (People v. Carini (1986), 151 Ill. App. 3d 264, 502 N.E.2d 1207, appeal denied (1987), 114 Ill. 2d 548.) Failure to give an appropriate instruction requires reversal only where the defendant was so prejudiced by the failure to give the instruction as to affect the outcome of the verdict. People v. Bertucci (1980), 81 Ill. App. 3d 851, 401 N.E.2d 1123.

Grant was put through a rigorous and exhaustive cross-examination regarding the circumstances which led to his agreement to cooperate with the authorities to obtain evidence of criminal narcotics activities of the defendant and other officers of the Chicago police department. All of the details of his arrest, conviction, lenient sentence and placement with the Federal Witness Protection Program were ventilated before the jury. Argument to the jury called attention to his personal bias, interest, motives and prejudice. His credibility was not left to chance.

The given IPI instruction was sufficient. There was no need for the tendered non-IPI instruction. It is not based on the evidence because Grant did not receive immunity. He was indicted, convicted and sentenced to probation. Even if the tendered instruction was appropriate, the error would be harmless and would not warrant a new trial. The evidence of guilt is overwhelming and the tendered instruction could not erase the actual recording and transcription of the crimes. The trial court correctly denied defendant’s tendered instruction.

II

Defendant argues in the alternative that this matter should be remanded for an evidentiary hearing relative to the State’s use of its peremptory challenges.

In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court reiterated that the equal protection clause forbids a prosecutor from peremptorily challenging potential jurors solely on account of race or on the assumption that black jurors as a group will be unable to impartially consider the prosecutor’s case against a black defendant. (Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719.) Defendant’s recourse under Batson requires that he first establish a prima facie case of discrimination. Once the defendant establishes a prima facie case, the burden shifts to the prosecution to come forward with race-neutral explanations for striking the black veniremen. The prosecutor must give a clear and reasonably specific explanation for his legitimate reasons for exercising the challenges. (Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) As the trial court’s finding largely will turn on an evaluation of credibility, a reviewing court should give such findings great deference. Batson, 476 U.S. at 98 nn.20-21, 90 L. Ed. 2d at 88-89 nn.20-21, 106 S. Ct. at 1723-24 nn.20-21.

In the instant case, we need not decide whether defendant has established a prima facie case of purposeful discrimination because, in our determination, the record supports the finding that the reasons given for excusing the six jurors were race neutral and case specific.

When challenged by defendant, the prosecutor stated that the youth and lack of sophistication to appreciate the seriousness of the crime was a reason for excusing three of the six jurors. These three jurors were a 21-year-old woman who worked as a cashier for one year, a student of 22 who apparently had never been employed, and a 21-year-old clerk. Another juror was excused because he lived in an area inundated with drugs and, therefore, the State felt he may not appreciate the seriousness of the offense. The fifth excused juror had been shot by a police officer and the State believed that this experience may have affected the prospective juror’s ability to be fair and impartial because the prosecution was based on the testimony of police officers. The final juror was excused because she had a relative and a close friend who were police officers. The prosecutor believed that her ability to be impartial may be affected. Each of the excused jurors was engaged in nonprofessional occupations or was an unemployed nonprofessional. The jury which was selected to try this case consisted of persons engaged in professional careers or older persons with grown children.

The Supreme Court has not attempted to define what is a “neutral explanation” for the exercise of a peremptory challenge. However, the following have been deemed racially neutral. In People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318, “not too happy with [the person’s] demeanor and how he answered the question” was a neutral explanation. In People v. Daniels (1987), 164 Ill. App. 3d 138, 517 N.E.2d 626, appeal denied (1988), 119 Ill. 2d 562, the State excused a black venireman because he agreed out loud that everyone has a right to defend himself. In United States v. Clemons (3d Cir. 1988), 843 F.2d 741, it was held racially neutral and case specific to exclude young, single panel members for drug-related offenses. In People v. Taylor (1988), 171 Ill. App. 3d 261, 524 N.E.2d 1216, appeal denied (1988), 122 Ill. 2d 590, the court stated that the State could reasonably believe that young, single unemployed persons lack maturity and may have a tendency to identify with defendants charged with drug offenses.

Giving “great deference” to the trial court's finding, we conclude that the prosecutor’s reasons for the exclusions were proper in light of the narcotics charge involved in this case.

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

Affirmed.

EGAN, P.J., and HARTMAN, J., concur.