text:
      In re MARRIAGE OF JOHN HARTLEY LEWIS, Petitioner-Appellee, and SYLVIA ELAINE FARRIS LEWIS, Respondent-Appellant.
    Fifth District
    No. 5-88-0017
    Opinion filed August 24, 1989.

      Morris Lane Harvey and Heide A. Hoffee, both of Law Offices of Morris Lane Harvey, of Fairfield, for appellant.
    A. Courtney Cox, of Hart & Hart, of Benton, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Petitioner, John Lewis, filed a motion in the circuit court of Franklin County to restore visitation, his visitation rights having previously been temporarily modified, and respondent, Elaine Lewis Conaughty filed a motion to restrict visitation. After a hearing, the trial court denied Ms. Conaughty’s motion to restrict visitation, granted Mr. Lewis’ motion to restore visitation, and ordered that the child, David Lewis, cease all visits to any psychologist or psychiatrist until further order of the court. The trial court subsequently entered an award of attorney fees in favor of John Lewis, finding that Elaine Conaughty’s actions preventing John Lewis from exercising his visitation rights were unjustified. Elaine Conaughty appeals both orders.

The parties were married on April 22, 1977, and divorced on February 25, 1980. David Lewis was born on January 17, 1979. The dissolution decree awarded both parents joint custody of David, Elaine Lewis having physical custody nine months per year and John Lewis having physical custody for the other three months, as well as visitation privileges.

Prior to November of 1985, David Lewis stayed at the home of John Lewis’ parents during the time granted Lewis for visitation and during the summer months. The record indicates that John Lewis lived with his parents during that time except when he was attending college. John Lewis married his present wife, Patty, in November of 1985. Since that time, David stayed with John and Patty Lewis during weekend visitation and during the summer. Beginning in September of 1986, Elaine Conaughty (Elaine Lewis had remarried in 1980) began noticing a radical change in David’s behavior. He was moody, had tantrums, and frequently became violent. These episodes coincided with John Lewis’ scheduled visitation, and David indicated that he did not want to go for the visitation.

On November 17, 1986, John Lewis filed a petition for rule to show cause and a petition to modify physical custody alleging that Elaine Lewis was denying him visitation, that Elaine Lewis and her husband were having marital difficulties which were having a detrimental impact on David, and that David did not get along with the other children from Elaine Lewis' second marriage. Elaine Lewis filed a counterpetition alleging that David did not want to stay with John Lewis during his summer visitation, that David did not get along with Patty Lewis, and that the visitations with John Lewis were causing David severe emotional distress.

The parties subsequently entered into a stipulation providing that John Lewis’ visitation rights would be exercised by his parents and that all parties involved would undergo a psychological evaluation. John Lewis did not complete a portion of the evaluation. Based on his evaluations, Dr. Jeffrey Kellogg devised a proposed visitation stipulation. John Lewis agreed with parts of the stipulation, but refused to agree to accept any modification proposed by Dr. Kellogg and refused to participate in any more therapy sessions. Lewis also indicated that he would not pay part of Dr. Kellogg’s fee for evaluation because Elaine Conaughty had established the relationship with Dr. Kellogg without consulting him.

Following the evaluation, Dr. Kellogg recommended a return to normal visitation between David and John Lewis. This visitation schedule was continued without incident until May of 1987. During this time, Dr. Kellogg had continued to see David. In May 1987, Dr. Kellogg prepared a written evaluation which diagnosed David as having a separation anxiety disorder. The evaluation indicated that the source of David’s anxiety was his visitation with John and Patty Lewis and that David had a negative attitude toward his relationship with John and Patty Lewis. Dr. Kellogg recommended against the upcoming summer visitation and that all parties involved should participate in family therapy. Based on this evaluation, Ms. Conaughty filed a motion for temporary custody order regarding visitation seeking custody of David during the summer of 1987.

On June 4, 1987, John Lewis filed a petition for rule to show cause and other relief alleging that he had not seen Dr. Kellogg’s report until the temporary modification petition was filed, despite having requested it several months earlier, and that Elaine Conaughty was again denying him visitation with David. On June 8, 1987, the court entered an order finding that Elaine Conaughty was not in contempt and temporarily modifying John Lewis’ summer visitation rights, reducing it to two weeks and alternating weekends. The court also ordered that Dr. Kellogg was to evaluate David immediately after the two-week visitation and report his findings to the court and the parties. David Lewis spent June 10, 1987, through June 24, 1987, with Mr. Lewis. John and Patty Lewis both testified that David exhibited no emotional problems while with them and was quite happy.

On July 3, 1987, John Lewis came to Elaine Conaughty’s home to pick David up for the weekend visitation. David became extremely upset and refused to go. When Mr. Lewis returned later that evening to again attempt to pick up David for visitation, David became hysterical, threatened to strike Mr. Lewis with a broom, and even called the West Frankfort police department. The officer dispatched found David extremely agitated and David expressed to the officer that he did not want to go for the visitation.

On July 21, 1987, Mr. Lewis again filed a petition for rule to show cause alleging that Ms. Conaughty was denying him visitation and a petition to restore visitation. Ms. Conaughty subsequently filed a petition to restrict visitation. A hearing was held on September 10, 1987. The Lewises, the Conaughtys, Dr. Kellogg, and several other witnesses testified. The court also interviewed David in chambers. At the conclusion of the hearing, the court stated its belief that it did not believe most of what David had been saying because it did not make sense and that it believed the source of David’s emotional problems with his father to be Ms. Conaughty. The court also indicated its belief that much of Dr. Kellogg’s evaluation was based on the false impression being given by David and that continued visits with Dr. Kellogg were reenforcing David’s problem. The court denied Ms. Conaughty’s petition to restrict visitation and granted Mr. Lewis’ petition to restore visitation. The court also ordered all visits to any psychiatrist or psychologist to cease until further order of the court.

On appeal, Elaine Conaughty argues that the trial court erred in awarding attorney fees because it failed to consider the parties’ relative financial conditions. Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides for an award of attorney fees after considering the parties’ relative financial conditions, and section 508(b) of the Act provides for such an award without such consideration only in actions to enforce a child support award. (Ill. Rev. Stat. 1985, ch. 40, pars. 508(a), (b).) Section 610(c) of the Act provides for an award of attorney fees against a party seeking modification where the action is “vexatious and constitutes harassment.” (Ill. Rev. Stat. 1985, ch. 40, par. 610(c).) Elaine Conaughty argues that her denial of visitation was based on the child’s violent refusal to go and on Dr. Kellogg’s report and was not “unjustified.”

Although not specifically stated in the order, it is clear from the trial court’s comments at the close of the proceedings that the court found Elaine Conaughty’s repeated attempts at modification and her continual interference with Mr. Lewis’ visitation rights to be vexatious and to constitute harassment. The decision to award attorney fees rests with the discretion of the trial court. (In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015.) We find no abuse of discretion in this case.

Ms. Conaughty also argues that the trial court erred in terminating all visits to any psychologist or psychiatrist until further order of the court. She maintains that there was no evidence to support the court’s conclusion that termination of the visits were in the child’s best interests and that the court’s decision was against the manifest weight of the evidence.

The court’s order was based on its belief that the visits to Dr. Kellogg were part of the problem and were exacerbating David’s emotional problems. This belief was based on the court’s evaluation of the credibility of the various witnesses. It is well settled that determination of witness credibility is best left to the trier of fact because it is the trier of fact who hears the testimony and observes the demeanor of the witness. A reviewing court, which has only a cold record before it, will not presume to substitute its own independent evaluation of witness credibility unless the trial court’s evaluation is found to be manifestly erroneous. After reviewing the record, we cannot make such a finding in the present case. Though had we been in a position to hear and see the witnesses in the first instance we might have arrived at a different conclusion than that of the trial court, we are not persuaded that we should now reject that conclusion in favor of our own. We note that Dr. Kellogg admitted that David had shown no im- . provement despite 75 hours of counseling. We note further that the trial court did not permanently bar David from seeing a psychologist or psychiatrist, but only until further order of the court. There is no showing in the record that either party has requested the court to allow David to resume his visits.

Finally, Ms. Conaughty argues that the trial court’s decision to deny her motion to restrict visitation and to grant Mr. Lewis’ motion to restore visitation was against the manifest weight of the evidence. Restriction of visitation rights requires a showing that the visitation endangers the physical or emotional welfare of the child. (Ill. Rev. Stat. 1985, ch. 40, par. 607(c); Woods v. Woods (1986), 147 Ill. App. 3d 772, 498 N.E.2d 906.) The endangerment standard is an onerous one and not easily met. (In re Marriage of Hanson (1983), 112 Ill. App. 3d 564, 445 N.E.2d 912.) The trial court found that Ms. Conaughty failed to meet that standard and we conclude that such finding is not against the manifest weight of the evidence. While there is evidence suggesting that the visitations with Mr. Lewis are part of David’s problem, there is also evidence that numerous other factors contributed to the problem. While we have no doubt that a problem exists with the visitation, it is not clear that the source and nature of the problem is John Lewis. We also conclude that the restoration of John Lewis’ visitation rights was not against the manifest weight of the evidence. Modification of visitation rights requires a showing that the modification is in the child’s best interests. (Griffiths v. Griffiths (1984), 127 Ill. App. 3d 126, 468 N.E.2d 482.) The trial court had previously modified John Lewis’ summer visitation rights with David based on the report of Dr. Kellogg. The court subsequently determined that Dr. Kellogg’s report was unreliable. As we stated earlier, this determination was based on the trial court’s evaluation of the credibility of the various witnesses and of David Lewis. We are not persuaded that the trial court’s evaluation was erroneous and so find no error in the court’s restoration of John Lewis’ visitation rights.

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

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH JUSTICE GOLDENHERSH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SINGLETARY JOHNSON, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0502
    Opinion filed August 25, 1989.

      GOLDENHERSH, J., specially concurring.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Defendant, Singletary Johnson, appeals his conviction for residential burglary and theft. He argues that his arrest should have been quashed and all evidence obtained as a result thereof suppressed because he was arrested in his home on the basis of a defective and invalid arrest warrant. We affirm.

On January 15, 1987, at approximately 8:02 a.m., an information was filed with the circuit clerk of Jackson County, charging defendant with the offenses of residential burglary and theft. The information had been signed and sworn to by Assistant State’s Attorney Michael L. Wepsiec before the Honorable Judge William H. South on January 14, 1987. Filed at the same time was an order which had been signed by Judge South on January 14, 1987, finding probable cause to arrest defendant and ordering that a warrant be issued for defendant’s arrest. The arrest warrant was served on defendant on January 14, 1987, at 5:56 p.m. and filed with the circuit clerk on January 15, 1987, at approximately 9:33 a.m.

On February 26, 1987, defendant filed a motion to quash his arrest and suppress evidence obtained as a result thereof. The motion alleges that the warrant authorizing defendant’s arrest had been issued unlawfully in that the information charging him with the offense had not been filed in open court prior to issuance of the arrest warrant as required by section 111 — 2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 2(d)). The motion further alleges that no warrantless arrest lawfully could have been made because defendant had been arrested in his home, no voluntary consent had been given to the police to enter the home and there were no exigent circumstances present to justify a nonconsensual entry.

Hearing was held on the motion on March 10, 1987, and the following evidence was adduced. City of Murphysboro police detective Curt Graff testified that on the afternoon of January 14, 1987, he was investigating a burglary of a residence in Murphysboro. At the scene of the burglary, he was given certain information by Sergeant Castlebery. Graff proceeded to the police department, where, at approximately 3:45 p.m., he telephoned Assistant State’s Attorney Wepsiec. Graff then proceeded to the office of the State’s Attorney, where he met with Assistant State’s Attorneys Wepsiec and Nieskes. Graff explained the facts of the case as they had been told to him by Castlebery and requested an arrest warrant for defendant. Because the secretaries in the office had left for the day, Wepsiec typed a form which the State’s Attorney’s office usually uses as an information, an order authorizing issuance of an arrest warrant, and an arrest warrant. Wepsiec used as a complaint for arrest warrant the form which was usually used as an information. Graff then attempted to telephone several judges, but was unable to reach any. Graff and Wepsiec proceeded by automobile to Judge South’s residence.

Graff and Wepsiec entered Judge South’s residence, where Wepsiec explained that there had been a burglary in Murphysboro involving the theft of a video cassette recorder, and that there was an eyewitness who had seen the defendant carrying a video cassette recorder out of the victim’s residence. Judge South read the instrument Wepsiec was using as a complaint for arrest warrant and inquired of Wepsiec if the facts contained therein were true and accurate. Wepsiec responded that they were, and Judge South signed the acknowledgment of Wepsiec’s signature and oath, the order authorizing issuance of an arrest warrant and the arrest warrant. Graff then proceeded to defendant’s residence.

Graff knocked on the door of defendant’s residence and defendant opened the door. Defendant invited Graff into the residence. Graff explained that he had a warrant for defendant’s arrest, explained the charge, and took defendant into custody.

On cross-examination, Graff clarified that when he arrived at the State’s Attorney’s office it was after 4 p.m., and there were no judges available in the Jackson County courthouse. The information Sergeant Castlebery had given Graff was that the victim’s son had observed defendant enter the victim’s residence. Defendant knew Graff was a police officer when he invited Graff into his residence.

Assistant State’s Attorney Michael Wepsiec testified that at approximately 3:45 p.m. on January 14, 1987, he received a telephone call at his office from Detective Graff. Graff later appeared at Wepsiec’s office and requested a warrant for the arrest of defendant. Graff explained that defendant had been seen coming out of a house with a video cassette recorder. Wepsiec typed an information form to be used as a complaint for arrest warrant. Graff attempted to telephone two local judges but was unable to reach them. Graff and Wepsiec proceeded to the home of Judge South. Judge South read the complaint for arrest warrant and asked Wepsiec if the facts contained therein were true. Wepsiec responded that they were, and Judge South signed the complaint for arrest warrant and the order authorizing issuance of an arrest warrant. The circuit clerk’s office had been closed when Graff appeared at Wepsiec’s office. The same document that Wepsiec used as a complaint for arrest warrant was filed with the circuit clerk the next day, January 15, 1987, as the information charging defendant with the offenses of residential burglary and theft.

Virginia Mason testified that she is the mother of defendant and lives at 513 Bridgewood Lane, Murphysboro. Defendant lives there with her. At approximately 5 or 5:15 p.m. on January 14, 1987, police officers presented themselves at the door of her residence. Mason opened the door and asked what the problem was. The officers responded that they had an arrest warrant for defendant. Mason then invited the officers into her home. Defendant was in the living room of the house. Mason invited the officers into her house because they said they had a warrant.

Defendant testified that he resides with his mother and sister at 513 Bridgewood Lane, Murphysboro. At approximately 5 or 5:15 p.m. on January 14, 1987, police officers presented themselves at the door of his residence. When his mother opened the door, they told her that they had a warrant for defendant’s arrest. His mother then let the police officers into the house.

At the conclusion of the hearing, the court found that a court can issue an arrest warrant based upon an information before the information is filed in the circuit clerk’s office, and that a judge may issue an arrest warrant from his home when the courthouse is closed. Thus, the court found, the arrest warrant issued here was valid. The court further found that the police officers’ entry into defendant’s residence was consensual as defendant’s mother had invited them in.

The case was tried to a jury on May 8, 1987. The jury found the defendant guilty of residential burglary, criminal trespass to a residence and theft. Hearing was held on defendant’s post-trial motion on June 19, 1987. The motion was denied. Sentencing hearing was held the same date. Defendant was sentenced to the Department of Corrections for four years. Judgment was entered on June 22, 1987, on the verdicts of guilty of the offenses of residential burglary and theft, and mittimus was issued.

Defendant now argues that the trial court erred in failing to quash his arrest because the document upon which Wepsiec relied to obtain the arrest warrant was not a complaint, but an information, which must be filed in open court prior to issuance of an arrest warrant thereon. He argues that he was denied his substantial right to have an arrest warrant issue based upon a State’s Attorney’s information filed in open court. Section 111 — 2(d) of the Code of Criminal Procedure of 1963 provides that, upon the filing of an information in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 2(d).) Defendant interprets this to mean that an arrest warrant cannot issue unless an information first is filed in open court. He argues that a court is open only when it is formally convened and in session in a courthouse. He argues that, although the information was shown to and read by the judge before the arrest warrant was issued, court was not formally open and in session. Instead, the arrest warrant was issued from the judge’s private home. Furthermore, the information was not filed in the circuit clerk’s office until the next day. Thus, defendant argues, the information was not filed in open court prior to issuance of the arrest warrant and the warrant was therefore invalid. Defendant further argues that the requirement that the information be filed in open court prior to issuance of an arrest warrant is for the protection of defendant’s substantial rights.

Defendant’s argument is without merit because the arrest warrant in this case was not issued based upon an information, but upon a complaint for arrest warrant under section 107 — 9 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1987, ch. 38, par. 107— 9.) Section 107 — 9 provides that an arrest warrant may be issued when a complainant presents to a court a verified, written complaint charging that an offense has been committed, setting forth the name of the accused, the offense charged and the time and place of the offense. The judge must then examine upon oath the complainant, and, upon finding that the person named in the complaint has committed an offense, issue an arrest warrant. Section 107 — 9 contains no requirement that the complaint for arrest warrant be filed in open court, or that an information be filed in open court, prior to issuance of an arrest warrant.

We think that the instrument presented to Judge South in this case meets all the requirements of a complaint for arrest warrant. Although the instrument used as the complaint for arrest warrant was in the form also used by the office of the State’s Attorney as a charging instrument known as an information, it was not being used as an information at the time the arrest warrant was issued. Instead, it was being used as a complaint for arrest warrant and contained all of the necessary elements of a complaint for arrest warrant. It was subscribed and sworn to by the complainant, here the assistant State’s Attorney, it charged an offense, and contained the name of the accused and the date and time of the offense.

Further, the evidence indicates that the assistant State’s Attorney was examined under oath by the judge. The assistant State’s Attorney explained to the judge that there had been a burglary involving the theft of a video cassette recorder and that there was an eyewitness who had seen the person named in the complaint for arrest warrant carrying the video cassette recorder from the victim’s residence. The judge read the complaint for arrest warrant and inquired of the assistant State’s Attorney if the facts contained therein were true. The assistant State’s Attorney “raised [his] hand and said they were.” The judge then signed an order finding probable cause for the issuance of a warrant for the defendant’s arrest .and ordering that a warrant be issued.

We think this procedure meets the requirements of section 107 — 9. We do not think it makes any difference that the complaint for arrest warrant was signed by the assistant State’s Attorney rather than the investigating police officer. Because the instrument was not being used as a charging instrument, but as a complaint for arrest warrant, the signature of the assistant State’s Attorney does not automatically convert the instrument into an information. (See the definition of “information” contained in section 102 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 102— 12).) The State’s Attorney had sufficient facts from the investigating officer, who also was present, upon which to base his complaint for arrest warrant. We are aware of no statute or case law which prohibits a State’s Attorney from acting as a complainant on a complaint for arrest warrant.

Finally, we see no problem with the fact that the same instrument which was used as a complaint for arrest warrant was used the following day as the information charging defendant with the offenses. The information was filed in open court. However, no arrest warrant was needed at that time as defendant was already lawfully in custody. The document contained all the necessary elements of both a complaint for arrest warrant and an information. Defendant was not prejudiced in any way by use of the same document as both a complaint for arrest warrant and an information.

We realize that the basis for our affirmance of the order of the trial court is not the same ground relied upon by the trial court. However, it is well settled that a judgment may be sustained on any ground warranted by the record, regardless of the reasons relied upon by the trial court. People v. McNair (1985), 138 Ill. App. 3d 920, 923, 486 N.E.2d 941, 943.

The arrest warrant issued here was valid and the arrest of defendant was lawful. We therefore need not address the second part of defendant’s argument: that defendant’s arrest was unlawful because warrantless and made after a nonconsensual entry into defendant’s home.

For the foregoing reasons the order of the circuit court of Jackson County denying defendant’s motion to quash his arrest and suppress evidence is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE GOLDENHERSH,

specially concurring:

I agree with both the general line of reasoning and the result reached by my colleagues in the disposition of this appeal. There are two points on which certain explicit comments need to be made, in my opinion.

First of all, a document cannot be a complaint during the evening and an information on the break of day. The result in this appeal follows the trend of authority in Illinois and elsewhere emphasizing the substance of documents and filings as opposed to the label given to them. In this particular instance, the information also had within it all of the elements of a complaint and the result reached by this court indicates that given the presence of elements for both, a complaint and an information in this particular factual context are not mutually exclusive. Therefore, the trial court reasonably and properly relied upon the contents of the information as sufficient to constitute a complaint and properly issued a warrant for arrest.

As to consideration of the requirement of filing in open court an information or indictment, the section relied on (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 2(d)) reads as follows:

“(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.”

By the terms of this section the court is mandated to perform an act upon the filing of an information in open court, but the terms of this section by the words used by the General Assembly do not exclude another means of issuing a warrant for arrest, specifically, in this case the means utilized by the State in its application to Judge South. While defendant correctly points out that subsection (d) was not followed by the People in this particular situation, defendant’s argument explicitly claims that failure to follow this section invalidates issuance of the arrest warrant and in this argument implies that the procedure in subsection (d) constitutes the only valid means for issuance of such warrant. The terms of subsection (d) do not mandate such a conclusion be reached by this court.

For the reasons as stated by my colleagues and the additional reasons given in this concurrence, I agree that the actions of the circuit court of Jackson County should be affirmed.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CLARK BRIDGES, Defendant-Appellant.
    Fifth District
    No. 5 — 86—0777
    Opinion filed August 25, 1989.

      Daniel M. Kirwan and Michelle A. Zaliski, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    David W. Hauptmann, State’s Attorney, of Harrisburg (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant, a juvenile, was convicted as an adult of voluntary manslaughter, attempted murder, unlawful use of weapons, and two counts of aggravated battery, but acquitted of murder. He was sentenced to the Department of Corrections, Juvenile Division, until 21. We affirm in part and vacate in part.

Defendant heatedly argued with Brad Taylor and Leroy Sanders, Jr. Later that day, Taylor, his brother Danny Taylor, Sanders, Winfred Moss and Toni Flemmings returned to the area, stopping at defendant’s neighbor’s house to collect for trash hauling. As they were leaving, defendant came out, saying he was going to “get” someone on Saturday and shouting derogatory names at the group as they were leaving. Moss stopped the car. Brad Taylor, Danny Taylor and Sanders got out. Brad Taylor approached defendant. Danny Taylor remained about 40 to 50 feet behind Brad Taylor. Sanders stayed near the car. Flemmings remained in the car. Moss was near the car door. Brad Taylor and defendant started swinging at each other. Taylor slapped defendant in the face. Defendant pulled a handgun, Sanders and the two Taylors started running, and defendant started “shooting like crazy,” firing four to six shots in rapid succession. Danny Taylor was shot twice and killed. Sanders was shot in the leg. A bullet was found lodged in Moss’ car.

Defendant claimed self-defense. In support of his defense, he testified that Sanders had a pipe inside his jacket, that Brad Taylor acted as if he had a knife, that he saw the barrel of a gun sticking out of the rear window of Moss’ car, and that he believed that the person in the car was going to shoot him. He also called three witnesses who testified that Brad Taylor had a propensity for violence, and also related Sander’s violent past. However, the trial court refused to admit the past violent acts of Winfred Moss.

Contradicting defendant, Brad Taylor, Sanders and Flemmings testified they had no weapon, and, to the best of their knowledge, neither Moss nor Danny Taylor had a weapon. Neighbors testified that only defendant had a weapon.

Danny Taylor was shot twice and killed: The jury found defendant guilty of voluntary manslaughter, but not guilty of murder.

Brad Taylor was shot at, and Leroy Sanders was shot in the leg: The jury found defendant guilty of attempted murder, and also found defendant guilty of aggravated battery against Sanders.

Defendant first argues that the jury verdicts finding him not guilty of the murder of Danny Taylor, but guilty of the voluntary manslaughter of Danny Taylor, are both logically and legally inconsistent with the verdicts finding him guilty of the attempted murder of Brad Taylor and Leroy Sanders; therefore, he argues the attempted murder convictions must be vacated. We do not agree.

The verdicts on Danny Taylor’s killing are first examined. One found defendant guilty of voluntary manslaughter; the other acquitted him of murder. These verdicts are not inconsistent, because together they implicitly show that the jury rejected the theory that defendant intended to kill Danny Taylor, and instead found that defendant had an unreasonable belief in the need to defend himself.

In finding defendant guilty of the attempted murder of Brad Taylor and Leroy Sanders, however, the jury found that defendant had the specific intent to kill.

Defendant argues that the verdict convicting him of voluntary manslaughter, therefore, is inconsistent with the set of verdicts convicting him of attempted murder, because the jury could not find defendant had the specific intent to kill but, at the same time, find that his belief that he needed to defend himself was unreasonable. Four to six shots were fired in rapid succession. Defendant argues that to believe that he changed his motivation between shots would be contrary to reason. While defendant’s argument appears logical, a careful examination of the facts establishes that the verdicts are neither legally nor logically inconsistent.

Brad Taylor and Leroy Sanders, Jr., had had an earlier confrontation with defendant. Threats were made. Taylor and Sanders promised to return. They did. Brad Taylor approached defendant. Sanders stayed near the car. There was testimony that defendant first aimed and shot at Brad Taylor, and then at Sanders. The jury could believe defendant’s testimony that Brad Taylor acted as if he had a knife, and that he saw a lead pipe inside of Sanders jacket, yet find that defendant had the specific intent to kill Sanders and Brad Taylor because of the motivation provided by the earlier confrontation.

Danny Taylor, however, was not part of the initial confrontation, but in the second confrontation got out of the car and remained 40 to 50 feet away while Brad Taylor approached defendant. The jury could find, from the entire context, that just as defendant believed Brad Taylor and Sanders were armed, he likewise believed that Danny Taylor was armed and would shoot him, but could find further that that belief was unreasonable because the evidence placed no weapon in Danny Taylor’s hand nor otherwise insinuated aggression on his part.

When a conviction is reviewed, the evidence must be viewed in the light most favorable to the prosecution and the judgment upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. House (1986), 141 Ill. App. 3d 298, 490 N.E.2d 212.) We find that the jury properly could have found that defendant had a specific intent to kill or harm Brad Taylor and Sanders and not have had the same intent as against Danny Taylor. Therefore, the attempted murder convictions are affirmed.

Defendant next argues that he was denied a fair trial because the trial court refused to permit introduction of evidence of Winfred Moss’ prior acts of violence and aggression. Illinois law allows for the introduction of a victim’s past specific acts of misconduct when the defendant raises the defense of self-defense. (People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.) Lynch does not apply, however, because its predicate is missing; there is no evidence to indicate that Winfred Moss was a victim. He was involved in neither the first nor the second confrontation. His only involvement was to stand next to the car upon which defendant fired. Mere presence does not make one a victim, only a bystander. We are not prepared to extend Lynch to cover a bystander. After all, to do so would have the effect of making a man with a violent past fair game for killing. Therefore, Moss’ character was irrelevant and the trial court was correct in refusing to admit evidence of the prior violent acts of Winfred Moss.

Defendant also complains that the jury was erroneously instructed as to the elements of attempted murder. He argues that because an accused cannot be convicted of attempted murder without having the specific intent to kill, it was error to give instructions that incorporated the alternative definitions of murder contained in the Illinois Criminal Code. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a).) The jury was instructed that murder was defined as acting with the intent to kill or do bodily harm. This issue has been waived. Defendant, himself, tendered this instruction. It is not proper for a defendant to tender an erroneous instruction and then, when it is given, claim error. This court has held that a defendant’s failure to tender a proper instruction and failure to raise the issue in a post-trial motion effectively waives that issue for appeal. People v. Pecka (1984), 125 Ill. App. 3d 570, 466 N.E.2d 404.

Defendant argues that the issue is not waived, because it is plain error under Illinois Supreme Court Rules. (107 Ill. 2d R. 451(c).) This assertion is incorrect. In People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, the defendant failed to object to similar instructions. The Roberts court found that the instruction defining murder was erroneous but not “grave error” and, thus, did not fall under Rule 451(c). Roberts, 75 Ill. 2d at 14, 387 N.E.2d at 337.

Defendant also argues that the jury was given erroneous murder and voluntary manslaughter instructions. Similar instructions, defendant contends, were recently held to create reversible error. (See People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) Again, however, defendant tendered the instructions, a critical distinction from Reddick, causing this case to be unaffected by Reddick’s holding.

Finally, defendant complains that his convictions for aggravated battery must be vacated because they are based upon the same physical act as the attempted murder conviction, namely: shooting Leroy Sanders, Jr., in the leg.

It is undisputed that defendant shot several times in the direction of various people. Count VII of the information alleges :

“The said defendant, without lawful justification and with intent to kill Leroy Sanders and Brad Taylor in violation of Ill Rev Stat, ch 38, sec 9 — 1(A) [sic], performed a substantial step toward the commission of that offense, in that he fired a gun numerous times at Leroy Sanders and Brad Taylor and struck Leroy Sanders in both legs in violation of par 8 — 4(A), ch 38, Ill Rev Stat.”

The aggravated battery convictions also were based upon the shot that actually struck Sanders in the leg. Therefore, the fact that Sanders was shot in the leg was a necessary element of the aggravated battery convictions and the attempted murder conviction. To convict on both is improper. As the supreme court of Illinois recognized in People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802, 805:

“[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed. Eisenberg, Multiple Punishments for the ‘Same Offense’ in Illinois, 11 S. Ill. U. L.J. 217, 236-37 (1987).”

The State argues that the attempted murder conviction is based on the shots that missed Sanders while the aggravated battery convictions are based on the shot that actually struck Leroy Sanders. An examination of the record, and more specifically of the charging instruments, however, does not support this contention. For the above-mentioned reasons, the defendant’s aggravated battery convictions are vacated.

The circuit court judgment is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE HARRISON

text:
    TEAMSTERS AND CHAUFFEURS UNION LOCAL NO. 525, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0269
    Opinion filed August 28, 1989.
    John H. Kelly, of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.
    John L. Gilbert, of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, .P.C., of Edwardsville, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Teamsters and Chauffeurs Union Local No. 525 (hereinafter the Union), appeals from an order of the circuit court of Jackson County which dismissed for lack of subject matter jurisdiction its complaint against defendant, the Board of Trustees of Southern Illinois University (hereinafter the Board). For the reasons which follow, we affirm.

At issue in this litigation was a decision by the Board to use private security guards, rather than employees who belonged to the Union, at the East St. Louis facility of Southern Hlinois University. The Union’s complaint was in three counts. Count I sought a declaratory judgment that the Board was prohibited by the “public policy, Constitution and/or statutes of Illinois” from contracting with a private security firm to provide security services at the East St. Louis facility. Count II asked for issuance of an injunction to prevent the Board from “in any way paying monies to private security firms which provide security services to preserve peace and order and to protect life, liberty and property at the facilities under the control of the [Board].” Count III requested that the circuit court vacate or reverse a determination by the American Arbitration Association which found that the Board could contract with a private security firm to provide security services at the East St. Louis facility.

The Union originally filed its complaint in the circuit court of Madison County. The Board then filed a special and limited appearance and moved, successfully, to have the cause transferred to Jackson County. Once the cause was there, the Board moved to dismiss the Union’s complaint for lack of subject matter jurisdiction. Following a hearing, the Board’s motion was granted, and the cause was dismissed.

Although only count III of the Union’s complaint expressly sought review of the decision by the American Arbitration Association, all three counts were based on the labor dispute between the Union and the Board, and all three involved the validity of the arbitration decision. Under the Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1701 through 1721) (hereinafter the Act), primary jurisdiction over arbitration decisions involving disputes between educational employers and employees rests with the Illinois Educational Labor Relations Board (hereinafter IELRB), not the circuit court. (Board, of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149.) The circuit court here therefore correctly dismissed all three counts of the Union’s complaint for lack of subject matter jurisdiction.

The Union resists this conclusion by arguing that because the arbitration decision at issue here found in favor of the Board, the Board could not be said to have committed an “unfair labor practice,” and because the arbitration decision simply denied the Union’s grievance, there was no way that the Union could refuse to comply with the arbitration decision so as to commit an “unfair labor practice” itself. Because there was and could not be an “unfair labor practice,” and because an “unfair labor practice” must be alleged before a hearing may be granted before the IELRB (see Ill. Rev. Stat. 1987, ch. 48, par. 1715), the Union reasons that this case does not fall within the IELRB’s exclusive jurisdiction and, indeed, that the arbitration decision in question is not subject to review by the IELRB at all. Accordingly, the Union contends that the only possible way it can obtain review of the arbitration decision in question is through the circuit court.

The flaw in the Union’s argument is that the Union has, in fact, been able to proceed under the Illinois Educational Labor Relations Act. According to the record, as supplemented during the April 13, 1989, oral argument, the IELRB has now found that there were sufficient issues of law or fact to warrant a hearing on whether an unfair labor practice existed, it has issued a complaint, and it has scheduled a hearing on that complaint. We do not know if the hearing took place as scheduled or what, if any, decision the IELRB has reached, but this is of no consequence in this appeal. Now that the Union has been able to invoke the Act’s provisions and pursue redress thereunder, we believe that the Act provides the exclusive avenue for recourse by the Union under Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149, and that it may not now pursue a separate action in circuit court.

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

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    J. RANDOLPH BETHUNE, Plaintiff-Appellee and Cross-Appellant, v. C. TOM LARSON et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 5 — 87—0754
    Opinion filed August 29, 1989.

      William L. Berry, of East St. Louis, for appellant.
    Patrick J. O’Hara and Samuel S. Blane, both of Petersburg, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff, Bethune, was employed for 11 years as a counselor by the Montgomery County Health Department. Because of a personality conflict he had with another employee, the two were put on six months’ probation on October 10, 1984.

In March 1985, the chairman of the Montgomery County Board of Health (hereinafter referred to as the Board) and Larson, administrator of the Montgomery County health Department, met with the Montgomery County State’s Attorney. The three of them concluded that Larson had the power to fire plaintiff. This meeting was held without direction of the Board.

Before the Board next met, Larson fired plaintiff. Larson then informed the Board of the discharge. The Board held a hearing, reviewed Larson’s decision and approved plaintiff’s discharge.

Plaintiff then sought administrative review of the Board’s action pursuant to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.), claiming that Larson lacked authority to discharge him, and also claiming that the Board had not complied with the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1001 et seq.).

The circuit court granted plaintiff summary judgment, finding that Larson had no statutory authority to discharge plaintiff. The circuit court found further that although the manifest weight of the evidence supported the discharge, nevertheless, the Board’s decision to discharge the plaintiff constituted a review of Larson’s act, rather than an independent determination on the Board’s part. Therefore, because Larson lacked authority, his act discharging plaintiff was void, and necessarily, then, the Board’s act “affirming” the discharge was a “legally erroneous act.”

The court remanded the case to the Board to take appropriate action and both sides appealed.

On appeal, defendants argue that the circuit court erred in finding that Larson lacked authority to discharge plaintiff. Defendants further argue that the Board’s review and affirmation of the discharge amounted to a ratification and was not a legally erroneous act as found by the circuit court.

We agree with the circuit court that Larson did not have the authority to terminate plaintiff’s employment. We further find, however, that the Board properly ratified Larson’s decision to discharge plaintiff.

In finding Larson lacked authority to discharge plaintiff, and therefore, the discharge void, the circuit court heavily relied on Bessler v. Board of Education of Chartered School District No. 150 (1973), 11 Ill. App. 3d 210, 296 N.E.2d 89. We find Bessler clearly distinguishable, however.

In Bessler, plaintiff contended that the school board could not delegate authority to hire or fire a teacher. The appellate court agreed, and said that the “people have chosen the members of the Board who are to exercise these discretionary powers and the people have a right to have such powers exercised only by those in whom they have placed their confidence.” 11 Ill. App. 3d at 213.

In contrast to Bessler, wherein the school board was elected, here the County Board of Health has not been elected, but has been appointed by the chairman of the County Board of Commissioners. (See Ill. Rev. Stat. 1985, ch. 111½, par. 20c12.) Therefore, the fundamental impediment to the delegation of authority that was present in Bessler is not present here. Here, the people did not choose the Board of health, did not vest the Board with discretionary powers, and therefore, can have no expectation that only the Board exercises discretionary powers and can have no right to expect prohibition of delegation of discretionary authority.

Furthermore, our courts consistently have held that school boards must faithfully follow the procedures prescribed by the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 1 — 1 et seq.); failure to follow those procedures results in voiding an attempted discharge of a teacher. See Aulwurm v. Board of Education of Murphysboro Community Unit School District No. 186 (1977), 67 Ill. 2d 434, 367 N.E.2d 1337; Birk v. Board of Education of Flora Community Unit School District No. 35 (1983), 120 Ill. App. 3d 181, 457 N.E.2d 1065; aff’d (1984), 104 Ill. 2d 252, 472 N.E.2d 407.

Whereas section 24 — 11 of the Illinois School Code prescribes obligatory procedures for discharge of a tenured teacher (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 11), on the other hand, section 15 of the public health district act is couched in language significant to the resolution of the instant case. Ill. Rev. Stat. 1985, ch. 111½, par. 20c14.

Section 15 of the public health district act specifically grants to county boards of health, “the exclusive right to employ and discharge its officers and employees, except as otherwise provided in Section 14.” (Ill. Rev. Stat. 1985, ch. 111½, par. 20c14.) Section 14 of the Act enumerates the powers and duties granted to county boards of health. (Ill. Rev. Stat. 1985, ch. 111½, par. 20c13.) Pursuant to section 14, the Board has the power to appoint officers and employees as it deems necessary. (Ill. Rev. Stat. 1985, ch. 111½, par. 20c13(11).) Additionally, the Board may prescribe the powers and duties of those officers and employees. Ill. Rev. Stat. 1985, ch. 111½, par. 20c13(12).

The legislature intended to vest county boards of health with power to employ and discharge officers and employees and to set rules and regulations necessary for the enforcement of those powers. The legislature did not intend to limit the powers of the board over hiring and firing employees, but instead intended to allow the delegation of that power when a board of health deemed it necessary for efficiency.

Specifically, defendants argue that pursuant to these powers, Larson was delegated substantial powers to manage the growing personnel problems concerning plaintiff. They argue that “while the Board clearly retained jurisdiction over the issue of the employment of Randolph Bethune and his co-employee, Ron Isaac, it, on a meeting-by-meeting basis, delegated those powers to Tom Larson.”

While we accept defendants’ general premise that the Board could have delegated to Larson the authority to discharge plaintiff, the record does not support defendants’ specific premise that in this instance such authority, in fact, was delegated.

The record shows that plaintiff was discharged by Larson before the Board knew anything about it. The minutes of the Board do not indicate that the Board delegated authority to Larson to discharge plaintiff. Those minutes, having been prepared by Larson himself, state “Tom Larson informed the Board that he did not have any recommendations to make in reference to the personnel situation.” Furthermore, Larson admitted in his answer to plaintiff’s interrogatories that he believed that “the authority to hire or fire rested with the Board.” These statements are strong evidence that Larson neither had, nor believed that he had, the authority to fire plaintiff. Therefore, we affirm the circuit court’s finding that Larson did not possess the authority to discharge plaintiff.

As to ratification of the discharge by the Board, the record shows that Larson discharged plaintiff, then reported his action to the Board and the Board approved. Defendants claim that even if authority had not been delegated to Larson, nonetheless, the Board’s approval constituted ratification. We agree.

The circuit court found that the Board could not have ratified the discharge. The gist of the basis for summary judgment in favor of plaintiff is this: Larson could not fire plaintiff; only the Board could; Larson’s act was void; therefore, in order to discharge plaintiff, the Board had to have a hearing under the Administrative Procedure Act; the Board only reviewed the discharge; it did not make an independent determination whether plaintiff should be discharged; therefore, the Board’s decision was a “legally erroneous” act.

This reasoning is fallacious for three reasons.

First, as addressed previously, the Board could have properly delegated authority to Larson to discharge plaintiff.

Second, the circuit court really did not deal with the issue of ratification. The circuit court did not review the action of the Board to determine if it amounted to ratification. Rather, it simply said that the Board could not have ratified the discharge. Tacitly, as a condition of its ruling, the circuit court has said there can be no ratification of a void act where a board of health is concerned. This is erroneous. The doctrine of ratification applies to all public and municipal bodies. Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 283 N.E.2d 718.

Although ratification cannot be used to make legal those things that otherwise would be illegal for a public body, the discharge of an employee is within the powers and duties of a board of health. (See, e.g., Mahoney Grease Service, Inc. v. City of Joliet (1980), 85 Ill. App. 3d 578, 406 N.E.2d 911; Ill. Rev. Stat. 1985, ch. 111½, par. 20c14.) Therefore, if Larson’s discharge was void, nevertheless, it could be ratified. The real question is whether it was ratified in fact.

A void act of an agent can be ratified by a principal where the principal has knowledge of the facts. (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 504 N.E.2d 1289.) Here, the Board knew of the discharge, reviewed the factual basis of the discharge, and adopted the discharge when it reviewed the evidence and approved it.

We believe the case of Hadley v. County of DuPage (7th Cir. 1983), 715 F.2d 1238, is similar. In Hadley, plaintiff was employed by Du Page County in 1964. He was promoted to superintendent of public works in 1970. On December 20, 1978, Knuepfer, the Du Page County board chairman, announced Hadley’s dismissal. Six days later, the county board ratified Knuepfer’s decision. Hadley, 715 F.2d at 1240.

Hadley asserted that his dismissal by Knuepfer was an illegal act because it had been performed without the prior consent of the county board. The court found:

“The plaintiff is correct in asserting that a county board chairman in Illinois has no power to act individually absent statutory or board authorization. [Citation.] *** Since the County Board subsequently ratified and approved Knuepfer’s action on December 26, 1978, and thereby made the termination legally binding, the fact that Knuepfer initially acted without prior Board consent is irrelevant.” Hadley, 715 F.2d at 1240.

In the present case, the record shows that the Board authorized the serving of notice of right to a hearing upon plaintiff. The Board heard extensive testimony during three meetings and reviewed the reasons for plaintiff’s discharge. The Board found that Larson had just cause for discharging plaintiff, and as a result, terminated plaintiff’s employment. Further, the Board authorized Larson to get resumes from prospective applicants to fill the vacant position. Therefore, we reverse the decision of the circuit court and hold that that the Board properly ratified Larson’s decision to discharge Bethune.

Third, the circuit court’s reasoning is fallacious because it relied on the provisions of the Administrative Procedure Act. After reviewing the record and the statutory scheme of the Administrative Procedure Act, we hold that plaintiff’s discharge is not covered by its provisions. First, the county public health department act gives to the Board the exclusive right to discharge, except as provided in section 14. (Ill. Rev. Stat. 1985, ch. 111½, par. 20c15.) Insofar as section 14 is applicable, professional and medical staff must have qualifications as provided by the State Department of Public Health. (Ill. Rev. Stat. 1985, ch. 111½, par. 20c13.) Nowhere else is the exclusive right of the Board limited. Furthermore, while the State Department of Public Health expressly adopts the provisions of the Administrative Procedure Act (see Ill. Rev. Stat. 1985, ch. 111½, par. 22(d)), the county public health department act does not.

The actual language of the Administrative Procedure Act further establishes that it does not apply to plaintiff’s discharge. Section 3.01 defines “Agency” as:

“each officer, board, commission and agency created by the Constitution, whether in the executive, legislative, or judicial branch of State government, but other than the circuit court; each officer, department, board, commission, agency, institution, authority, university, body politic and corporate of the State; and each administrative unit or corporate outgrowth of the State government which is created by or pursuant to statute, other than units of local government and their officers, school districts and boards of election commissioners; each administrative unit or corporate outgrowth of the above and as may be created- by executive order of the Governor.” Ill. Rev. Stat. 1985, ch. 127, par. 1003.01.

In its order, the circuit court found that the Administrative Procedure Act applied to the instant case because “the Montgomery County Board of Health is not a unit of local government.” We agree. The Board is not a unit of local government. Rather, it is an agency of a unit of local government. We find that an agency such as the Board is not an “agency” as defined by the Administrative Procedure Act, because the Board is not an “agency” of the State, which it must be to fall within the definition of “Agency” in section 3.01. Therefore, we further must find that plaintiff was not owed a hearing pursuant to that act.

On cross-appeal, plaintiff complains that he was not given two weeks’ notice prior to his termination as required by the Board’s personnel policy. The record, however, does not support plaintiff’s contention. Instead, the record indicates that plaintiff was first given notification of his termination on March 18, 1985. Because plaintiff’s discharge was not effective until April 12, 1985, he clearly was given notice more than two weeks prior to his actual termination.

Lastly, the circuit court held that the findings of the Board were not contrary to the manifest weight of the evidence. Plaintiff argues that this finding was erroneous, complaining that the Board did not make findings of.fact required by the Illinois Administrative Procedure Act, and further argues that the vagueness of the allegations, the manner in which the hearing was held, and the absence of findings of fact in the Board’s decision defy any meaningful review of the record.

The circuit court’s order stated in part:

“The court finds there is ample evidence in the written documents and testimony offered at the hearings for the board and the Court to render a decision. The plaintiff was adequately advised by all the written evidence presented why he was being discharged. The plaintiff also had a full hearing to refute any of the charges.
Therefore the court finds the action of the board based on the testimony and written documents presented was sufficient to allow judicial review ***.
Based on the transcripts, which the Court has fully reviewed, the Court cannot find that the decision was against the manifest weight of the evidence ***.”

A review of the record causes us to hold these findings proper.

In upholding the Board’s decision, the circuit court relied on Robinson v. Cook County Police & Corrections Merit Board (1982), 107 Ill. App. 3d 978, 436 N.E.2d 617, and held that specific findings of fact, as required by the Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1014), are unnecessary where the testimony is preserved for review with a written record. We find the circuit court’s conclusion correct, but unnecessary. As stated previously, the Administrative Procedure Act does not apply to plaintiff’s discharge.

In considering whether the evidence supported the Board’s finding, it was not the duty of the circuit court to weigh the evidence. Instead, it was the circuit court’s duty to determine if the findings and decision of the Board were against the manifest weight of the evidence. Schnulle v. Board of Fire & Police Commissioners (1974), 16 Ill. App. 3d 812, 306 N.E.2d 906.

In order for this court to conclude that the Board’s decision to discharge plaintiff was against the manifest weight of the evidence, we must be satisfied that a conclusion opposite of that reached by the Board is clearly evident. (See Kreiser v. Police Board of the City of Chicago (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389; aff'd (1977), 69 Ill. 2d 27, 370 N.E.2d 511.) An examination of the entire record, however, does not lead us to such a result. Therefore, the decision of the circuit court that the Board’s decision was not against the manifest weight of the evidence is affirmed.

For the above-stated reasons, we reverse the circuit court and hold that the Board could have delegated to Larson the authority to discharge plaintiff under the county public health department act. (Ill. Rev. Stat. 1985, ch. 111½, pars. 20c13, 20c14.) We further reverse and hold that the Board properly ratified Larson’s decision to discharge plaintiff. We affirm the circuit court’s holding that the Board’s decision to discharge plaintiff was not against the manifest weight of the evidence.

Affirmed in part; reversed in part.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT TIMBERSON, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0855
    Opinion filed August 30, 1989.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Scott Timberson, was charged with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) in St. Clair County, Illinois. After a jury trial the defendant was found guilty of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) and was sentenced to 12 years’ imprisonment. On appeal the defendant claims: (1) that the trial court erred in refusing to instruct the jury on the issue of self-defense; and (2) that the trial court abused its discretion in sentencing defendant. We reverse and remand for a new trial.

The evidence adduced at trial showed that on July 5, 1987, the defendant, then 16 years old, was walking with his younger brother Michael and a friend, Edwin Mumford, to a skating rink located in East St. Louis, Illinois. A passing car stopped and two men got out and accused Michael of beating up their brother. Michael denied any knowledge of the incident and the men eventually left. The boys then decided that they needed some protection, so they went to the defendant’s house, where the defendant obtained a gun that he had purchased some weeks earlier from someone on the street. The three then continued on to the skating rink, where the defendant hid the gun in a nearby alley before entering the rink. While inside the skating rink, the boys met the defendant’s sisters, Gloria and Crystal, and DeAndre Jackson, and they all left the skating rink when it closed and began to walk home. In the meantime, Mumford had retrieved the gun from the alley and was carrying it in his waistband.

While the group was walking home, a car passed them and someone in the car shouted an obscene remark, apparently directed at Jackson. Jackson responded with a similar remark. The car then stopped, and the victim, Ray Manuel, got out of the car and approached the group. The area was dark and both Mumford and the defendant testified that they did not know the victim, although Mumford later recognized Manuel as an acquaintance from school. Manuel approached the group asking, “What’s up?” and, according to the witnesses, acting in an aggressive manner. The defendant and several other witnesses testified that the victim reached into the waistband of his trousers, and they believed he was reaching for a gun. The defendant took his pistol from Mumford and fired a shot “to scare” the victim. Although the defendant and several witnesses testified that Manuel was facing the group when the shot was fired, he was struck in the back of the neck and subsequently died from the gunshot wound. The defendant, along with Mumford and Michael Timber-son, ran from the scene of the shooting. After the police investigation of the shooting implicated the defendant, they asked him, on July 7, to come to the station for questioning. He did so, accompanied by his mother, and after initially denying involvement in the shooting, the defendant confessed.

At the jury instruction conference the defendant’s attorney tendered a self-defense instruction (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 24 — 25.06)) which was refused by the trial court. IPI Criminal 2d No. 24 — 25.06 states:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.”

The jury was instructed, however, concerning belief of justification as a mitigating factor in reducing the offense from first degree murder to second degree murder (Illinois Pattern Jury Instructions, Criminal, Nos. 7.05A, 7.06A (2d ed. Supp. 1989)). The jury found the defendant guilty of second degree murder. The defendant’s post-trial motion was denied and he was sentenced to 12 years in prison.

The defendant’s initial contention is that the trial court erred in refusing to instruct the jury on the issue of self-defense. The defendant argues that the testimony of DeAndre Jackson, Gloria Timberson, Edwin Mumford, and Michael Timberson that they believed Ray Manuel was reaching for a gun, as well as the defendant’s testimony to the same effect, was sufficient to raise the issue of self-defense. In addition, the defendant notes that the earlier confrontation with the two men in the car also contributed to his fear when he was approached by another unknown figure (the victim) also alighting from a car.

The State argues that there was insufficient evidence presented at trial to warrant an instruction on self-defense. The State notes that the victim was shot in the back of the neck, and that the uncontradicted testimony of the pathologist established that it was impossible for the victim to be shot in such a manner if he were facing the defendant. The State also points out that several of the witnesses, in their initial statements to the police, stated that the victim turned back towards the car before he was shot. Furthermore, the State notes that the defendant’s statement to the police was inconsistent concerning when he shot the victim:

“After I fired the shot, the guy continued to walk towards us, then he fell face down. The guy turned and started walking back towards the vehicle that he had gotten out of when he [sic] fired the shot. Then he fell down.”

Finally, the State contends that the defendant’s claim that the shooting was accidental is inconsistent with a claim of self-defense. At trial the following testimony was elicited from the defendant on direct examination:

“Q. Okay. What did you do with the gun?

A. Then, you know, by him not stopping, I pointed the gun off to my right side and fired a single shot.

Q. Did you shoot at him?

A. No, I shot in an attempt to scare him.

Q. You didn’t shoot to try to shoot him, did you?

A. No.”

To establish that a person acted in self-defense, he must show that unlawful force was threatened against him, that he was not the aggressor, and that he reasonably believed: (1) that the danger of harm was imminent; (2) that the use of force was necessary to avert the danger; and (3) that the kind and amount of force used was necessary. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 852, 493 N.E.2d 600, 609; People v. Lenzi (1976), 41 Ill. App. 3d 825, 834, 355 N.E.2d 153, 162.) When there is some evidence in the record which, if believed by a jury, would support a defendant’s claim of self-defense, he is entitled to have the jury instructed on his theory of self-defense. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378, 381; People v. Robinson (1987), 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292, 1298.) It has also been held that even “slight evidence” of self-defense is sufficient to support the giving of an instruction. People v. Brooks (1985), 130 Ill. App. 3d 747, 750, 474 N.E.2d 1287, 1289; see Jaffe, 144 Ill. App. 3d at 852, 493 N.E.2d at 609.

In the instant case, we believe that there was ample evidence presented which, if believed by the jury, could have supported the defendant’s claim of self-defense. The defendant, DeAndre Jackson, Gloria Timberson, Edwin Mumford, and Michael Timberson all testified that the victim, Ray Manuel, approached the group in a threatening manner, reached for something in his waistband, and each of them thought he was reaching for a gun or a weapon. While the witnesses’ testimony that the victim was facing the defendant when he was shot was contradicted by their earlier statements to the police and by the location of the gunshot wound, we believe it was the province of the jury to evaluate such inconsistencies and resolve them one way or the other. The failure to instruct the jury on the theory of self-defense, however, precluded the jury from considering whether the defendant’s belief that his actions were justified was a reasonable belief.

Moreover, it is apparent that the jury believed, at a minimum, that defendant subjectively believed that his use of force was justified. The jury was instructed on both first and second degree murder and found the defendant guilty of second degree murder. In order to do so, the jury had to find that the defendant “believed the circumstances to be such that they justified the deadly force he used, but his belief that such circumstances existed was unreasonable.” IPI Criminal 2d No. 7.06A (Supp. 1989).

In People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378, our supreme court held that when the evidence supports the giving of an instruction on self-defense, a tendered instruction on voluntary manslaughter based upon an unreasonable belief of justification should also be given. The offense of voluntary manslaughter has since been replaced by the offense of second degree murder. (Pub. Act 84 — 1450, §2, eff. July 1, 1987.) However, with the major exception of placing the burden on the defendant to prove the factor in mitigation, the offense of voluntary manslaughter under the old statute, and second degree murder under the new statute, are substantially the same. Compare Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2, with Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.

The instant case, however, does not present the same issue as that decided in Lockett; it is instead the converse situation. Nevertheless, while we do not find Lockett to be directly applicable to this case, we find it to be instructive.

“It is not the province of the judge to weigh the evidence and decide if defendant’s subjective belief was reasonable or unreasonable. The judge’s duty is to determine if any evidence is presented that the defendant had a subjective belief. We can conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that the jury could not find the defendant’s subjective belief was unreasonable. So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief, the jury should determine if the belief existed and, if so, whether that belief was reasonable or unreasonable.” (Emphasis added.) Lockett, 82 Ill. 2d at 553, 413 N.E.2d at 382.

In the instant case there was sufficient evidence presented from which a jury could conclude that the defendant had a subjective belief that his use of force was justified. Indeed, as discussed above, the jury in fact found that the defendant believed he was justified, but that his belief was unreasonable. Because the jury was not instructed that it could find that the defendant’s belief was reasonable, and that upon such a finding they should enter a verdict of not guilty, the defendant is entitled to a new trial. See People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203 (holding that it was reversible error to refuse to give an instruction on self-defense where an instruction on voluntary manslaughter based on an unreasonable belief of justification was given).

Nor are we persuaded by the State’s argument that the defendant’s claim that the shooting was accidental precluded an instruetion on self-defense. An instruction on self-defense may be given even though the defendant testifies that the shooting was accidental, (People v. Whitelow (1987), 162 Ill. App. 3d 626, 629, 515 N.E.2d 1327, 1329; People v. Brooks (1985), 130 Ill. App. 3d 747, 751, 474 N.E.2d 1287, 1290; see also People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292 (and cases cited therein); see generally Annot., 15 A.L.R.4th 983 (1982); Annot., 55 A.L.R.3d 620 (1974).) In the instant case, while the defendant testified that he did not intend to shoot the victim, he claimed that his actions in taking and firing the gun were motivated by his fear of the victim. This was sufficient to “place the shooting in the context of self-defense.” Whitelow, 162 Ill. App. 3d at 629, 515 N.E.2d at 1329.

In view of our disposition of this issue, we need not address the defendant’s claim that the trial court abused its discretion in sentencing him to 12 years’ imprisonment. Accordingly, the defendant’s conviction is reversed and this cause is remanded to the circuit court for a new trial.

Reversed and remanded.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE RARICK

text:
    LORRAINE A. BASLER, Indiv. and as Mother and Next Friend of Michael W. Gee, Plaintiff-Appellant, v. DONALD WEBB et al., Defendants-Appellees.
    Fifth District
    No. 5 — 88—0377
    Opinion filed August 30, 1989.

      John Paul Womick & Associates, Chartered, of Carbondale, for appellant.
    William Kent Brandon, of Mitchell, Brandon & Schmidt, of Carbondale, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Lorraine A. Easier, mother of nine-year-old Michael W. Gee, appeals from the dismissal by the circuit court of Union County of her complaint for failure to state a cause of action against defendants, Donald and Francis Webb, grandparents and guardians of six-year-old Tanya Webb. We affirm in part and reverse in part.

On April 22, 1987, at approximately 3:30 p.m., Michael had just gotten out of school and was crossing the street when Tanya, riding a bicycle allegedly with no brakes, ran into and seriously injured him. Plaintiff filed suit individually and on behalf of Michael alleging defendants were negligent in not controlling their granddaughter and in entrusting her with a defective bicycle. Defendants moved to dismiss plaintiff’s complaint for failure to state a cause of action. The trial court allowed plaintiff to amend her complaint, but plaintiff chose to stand on her pleadings. The court therefore dismissed plaintiff’s complaint with prejudice. Plaintiff argues on appeal the trial court abused its discretion in this instance in dismissing her complaint for failure to state a cause of action for either negligent control or negligent entrustment.

In considering a motion to dismiss for failure to state a cause of action, all well-pleaded facts within a complaint, as well as all reasonable inferences which can be drawn from those facts, must be regarded as admitted and true. (See Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 190, 478 N.E.2d 603, 607; Giers v. Anten (1978), 68 Ill. App. 3d 535, 539-40, 386 N.E.2d 82, 85-86.) Only when no set of facts entitling plaintiff to relief can be proved under the pleadings will we affirm the trial court’s decision to grant a motion to dismiss. (Duncan, 133 Ill. App. 3d at 191, 478 N.E.2d at 607.) A pleading, however, need not show an absolute certainty of recovery; only a possibility of recovery is required. (See Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 160-61, 510 N.E.2d 409, 413.) Applying these rules of liberal construction, plaintiff believes she has stated a viable cause of action against defendants for negligent control under section 316 of the Restatement of Torts Second (Restatement (Second) of Torts §316 (1965)), and under "the theory of negligent entrustment.

Turning first to the theory of negligent control, generally a parent is not liable for the torts of his or her child merely because of that relationship. (See, e.g., Duncan, 133 Ill. App. 3d at 199, 478 N.E.2d at 612.) Section 316 of Restatement of Torts Second, which we adopted in Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 365 N.E.2d 201, represents an exception to this rule. Under section 316:

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
a. knows or has reason to know that he has the ability to control his child, and
b. knows or should know of the necessity and opportunity for exercising such control.” (Restatement (Second) of Torts §316 (1965).)

The key for establishing liability is that the parent knows or has reason to know that he has the ability to control his child and knows or should know of the necessity and opportunity for exercising such control. (See Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 250, 504 N.E.2d 200, 203.) We agree that plaintiff has sufficiently pleaded these requirements in this instance to withstand a motion to dismiss. Specifically, plaintiff alleged in her complaint that: defendants are the grandparents and guardians of Tanya; defendants were at home and had the ability to control Tanya’s conduct and prevent her from riding a bicycle without brakes; defendants knew the bicycle was defective and could not be operated safely by Tanya; defendants failed to take the bicycle away from Tanya when they knew, or with reasonable diligence should have known, Tanya would disobey direct commands and ride the bicycle in its defective state; and defendants knew Tanya customarily rode down the street on which the collision occurred, being an extremely steep street, and that a bicycle without brakes traveling down such a steep street presented a gross danger to the public.

Defendants argue, however, plaintiff failed to allege that defendants knew or should have known of the necessity of controlling their granddaughter. Defendants believe liability only arises when a parent or guardian has knowledge, based upon the child’s past history, of that child’s propensity to commit the act which causes the injury. Because plaintiff failed to allege any similar acts in the past, defendants argue plaintiff failed to state a cause of action for negligent control. Defendants, however, refuse to acknowledge plaintiff alleged that Tanya customarily rode down the steep street where the collision occurred and that she disobeyed direct commands and would ride the bicycle in its defective state anyway. Clearly, plaintiff’s complaint sufficiently alleges defendants had prior notice that Tanya would disobey their directives to not ride the defective bicycle. And clearly, injury resulting from riding a bicycle with no brakes was more than foreseeable. (See Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 364, 131 N.E.2d 31, 34.) Yet defendants allowed a bicycle with no brakes to fall into the hands of a six-year-old child. Because plaintiff alleged defendants had the ability and the knowledge of the need to control both Tanya and the defective bicycle, in addition to defendants’ failure to exercise such control, plaintiff sufficiently alleged a viable cause of action under section 316 of the Restatement of Torts Second. (See Duncan, 133 Ill. App. 3d at 200, 478 N.E.2d at 613. Cf. Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 504 N.E.2d 200 (no opportunity to control and no allegations of specific instances of prior conduct, only knew of tendency for violence); Pesek v. Discepolo (1985), 130 Ill. App. 3d 785, 475 N.E.2d 3 (no allegations parents had knowledge of similar acts of violence or opportunity to control minor’s behavior); Cooper v. Meyer (1977), 50 Ill. App. 3d 69, 365 N.E.2d 201 (pleadings did not state parent had opportunity to control or knowledge of necessity to exercise control).) While certainly not a model pleading by any standard, plaintiff’s complaint is sufficient to withstand a motion to dismiss. Defendants cannot argue they have not reasonably been informed of plaintiff’s claim against them. (See Karsh v. Schmidt (1979), 79 Ill. App. 3d 365, 368, 398 N.E.2d 592, 594. See also Stenwall v. Bergstrom (1947), 398 Ill. 377, 383, 75 N.E.2d 864, 867.) The trial court therefore erred in dismissing counts I and II of plaintiff’s complaint for negligent control.

The trial court, however, did not err in dismissing counts III and IV for negligent entrustment. In order to state a cause of action for negligent entrustment, two elements must be alleged: (1) a negligent entrustment of a dangerous instrumentality; and (2) the inexperience or incompetence of the entrustee being the proximate cause of the plaintiff’s injury. (See Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 592-93, 515 N.E.2d 1299, 1301; State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 110, 404 N.E.2d 1122, 1124.) Plaintiff’s complaint fails to meet this standard. After realleging paragraphs 1 through 10 of count I for count III, plaintiff adds only that: “Defendants *** were guilty of negligence for entrusting a bicycle, without brakes, to a minor child, Tanya Webb, incapable of safely operating said bicycle when the Defendants knew, or with reasonable diligence should have known, that said child could not appreciate the dangerous condition of said bicycle or control said bicycle ***.” No allegation of any causal relationship between Tanya's incompetency and plaintiff’s injury appears in the complaint. (See Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 965, 370 N.E.2d 1235, 1240.) Plaintiff simply failed to allege the necessary proximate cause under this theory. (See Bensman v. Reed (1939), 299 Ill. App. 531, 533-34, 20 N.E.2d 910, 911. See also Giers, 68 Ill. App. 3d at 540-41, 386 N.E.2d at 86.) Consequently, plaintiff failed to state a viable cause of action against defendants for negligent entrustment, and the trial court committed no error in dismissing counts III and IV of plaintiff’s complaint.

For the aforementioned reasons, we reverse and remand for further proceedings that portion of the order of the circuit court of Union County dismissing counts I and II, negligent control, of plaintiff’s complaint and affirm the dismissal of counts III and IV, negligent entrustment.

Affirmed in part; reversed and remanded in part.

LEWIS and HOWERTON, JJ., concur.