author: • JUSTICE WOODWARD

text:
    THE CITY OF ROCKFORD, Petitioner-Appellant, v. THE COUNTY OF WINNEBAGO, Respondent-Appellee (The Pollution Control Board, Respondent).
    Second District
    No. 2—88—1181
    Opinion filed July 19, 1989.

      Ronald N. Schultz, of City of Rockford Department of Law, of Rockford (Douglas P. Scott, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield, and Dorothy M. Gunn, of Pollution Control Board, of Chicago (Robert J. Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, Joseph J. Annunzio, and Michael A. Kreloff, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    Paul A. Logli, State’s Attorney, of Rockford (Gary L. Kovanda, Assistant State’s Attorney, of counsel), for respondent Winnebago County Board.
   • JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, City of Rockford (City), appeals from a decision of the Illinois Pollution Control Board (PCB) affirming the decision of the Winnebago County Board (WCB) denying the City’s application for site approval of a new regional pollution control facility.

On appeal, the City raises the following issues: whether the decision of the WCB denying the site approval was timely made; whether the decision by the PCB upholding the decision of the WCB was timely and completely made; whether the decision by the WCB was the product of a fundamentally unfair process due to ex parte contacts or to the unfamiliarity of the WCB’s members with the record; and whether the decision of the PCB with respect to the merits of the decision of the WCB was against the manifest weight of the evidence.

On December 4, 1986, the City filed its application for site approval of a new landfill with the WCB pursuant to section 39.2(c) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2(c)). According to the application, the new landfill was to be located at the northeast corner of Baxter and Mulford Roads, was to consist of approximately 55 acres, and was to accept household nonhazardous waste from Winnebago County residents for approximately 19.6 years.

Commencing in March 1987 and through April 13, 1987, the WCB held hearings on the application. At the hearings, testimony was elicited from witnesses called by the City and by Save the Land, Inc., a group objecting to the granting of the application. Both sides called expert witnesses who, in turn, testified either in favor of or against the granting of the application.

Section 39.2(a) of the Act provides that approval of the site application will be granted only if the facility meets the following applicable criteria:

“(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain *** or the site is flood-proofed ***;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows ***.” Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2(a).

After meeting to discuss the recommendation of the zoning committee, on May 28, 1987, the WCB voted to deny site approval, determining that the City had met criterion (iv) but not the other five criteria. On June 3, 1987, the City was given written notice of the decision together with the reason for denial of the application. Also on June 3, 1987, the City filed a petition for hearing before the PCB.

On September 1, 1987, a hearing was held before a hearing officer of the PCB. The witnesses called by the City were or had been WCB members at the time of the May 28, 1987, vote. Before the PCB, the City argued that the WCB’s decision as to the five criteria was against the manifest weight of the evidence and that the hearing before the WCB was fundamentally unfair due to ex parte contacts between the WCB and those opposed to the landfill site. The City also agreed to extend the PCB 120-day deadline for ruling (see Ill. Rev. Stat. 1985, ch. 111½, par. 1040.1(a)) to November 19, 1987.

On November 19, 1987, the PCB issued its opinion. The PCB, noting that some of the communications to WCB members were ex parte and concerned that some WCB members had prejudiced the case, con-eluded that fundamental fairness required supplementary hearings. The PCB specifically instructed the WCB as follows:

“The Board [PCB] will vacate and remand the decision of the County with the following instructions: a) Winnebago County Board Members Bell, Barnard, Connelly, and Giorgi are disqualified from participating further in this matter; b) The substance of known ex parte contacts shall be made a part of the record and shall be the subject of an additional hearing; and c) The Winnebago County Board shall render a decision based exclusively on the six criteria of Section 39.2 of the Act and exclusively upon evidence in the record.
This will allow the substance of most if not all ex parte contacts, as well as the contact of radio and other ads, to be reviewed on the record. It will give all County Board Members a chance to re-evaluate the record and render a decision based solely on that record. The Board notes that the hearing record itself appears to be complete and developed in a fundamentally fair manner. This process should remove the procedural clouds from this proceeding and allow it to proceed on the merits.”

The City sought leave to appeal from the decision of the PCB, but leave was denied by this court in January 5, 1988.

A supplemental hearing was held by WCB zoning and planning committee on February 27, 1988, at which time, 18 members of the WCB testified as to the scope of ex parte contacts they had received. An additional hearing was held on March 10, 1988, at which time five members of the WCB testified. Thereafter, the record was left open for 30 days to allow for public comment.

On June 9, 1988, WCB adopted the resolution of the zoning and planning committee which stated that the City had failed to meet its burden of proof on criteria (i), (ii), (iii), (v), and (vi) of section 1039.2(a) of the Act. (Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2(a).) WCB members, disqualified by the PCB, did not participate in the voting, nor did one member who recused herself at the request of the City. Again, the City petitioned the PCB for a hearing, which was held on September 13,1988, before the same hearing officer.

At the September 13, 1988, hearing, the City called 15 WCB members to testify, as well as the WCB secretary. The record was then supplemented by stipulation of the parties with the transcript of the May 19, 1988, county zoning and planning committee meeting; a transcript of the portions of the June 9, 1988, WCB meeting; and the evidence deposition of WCB member Scott Christensen.

On November 17, 1988, the PCB entered its decision and order affirming the decision of the WCB. The PCB ruled that the City had not been denied fundamental fairness. The impact of the ex parte contacts was deemed insufficient to justify an overturning of the WCB’s decision since the City had ample opportunity to present its case. The PCB found that the WCB had properly based its decision on the six criteria set forth in the statute (Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2(a)) and that the City had not proved that the WCB’s decision was against the manifest weight of the evidence. This appeal followed.

The City contends, first, that the decision of the PCB was not made in a timely manner, and, therefore, the City’s application should be deemed approved.

Section 40.1(a) provides in pertinent part as follows:

“If there is no final action by the Board within 120 days, petitioner may deem the site location approved ***.” Ill. Rev. Stat. 1985, ch. 111½, par. 1040.1(a)

The City calculates the time from the first appeal to the PCB on July 2, 1987, to the final action taken by the PCB on November 19, 1988, or 504 days. The City argues that the decision of the PCB to remand the case back to the WCB was not a final action, but rather an interlocutory order as evidenced by the following order of the PCB issued November 25,1987:

“On November 19, 1987, the Board, by a 5-2 vote, vacated the decision of the Winnebago County Board (‘County’) which denied site location suitability approval, and remanded the matter back to the County. The Order of November 19, 1987, is an interlocutory order not otherwise appealable except in accordance with Supreme Court Rule 308 (‘SCR’).”

The City also argues that the November 19, 1987, decision of the PCB cannot be considered as a “final decision,” because it did not deal with any of the six statutory criteria. Moreover, the City’s petition was neither approved nor denied but rather remanded for a new vote after the ex parte contacts had been made of record and certain members of the WCB disqualified. Finally, the City argues that nowhere is the PCB granted the “authority” to remand a case. A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 90-91.

The City has drawn the definitions of “final order” too narrowly. Pollution Control Board Rule 103.224 (35 Ill. Adm. Code §103.224 (1985)) provides in pertinent part as follows:

“The Board shall prepare a written opinion and order for all final determinations which shall include:
(b) The final order or determination of the Board. The Board Order may include any or all of the following:
Jjc * *
(6) Such other order that may be appropriate.”

Although a remand order is not specifically enumerated in the above provision, it is certainly an “appropriate” order here where the PCB determined that fundamental fairness required supplemental proceedings. Further, since a remand was an appropriate order in this case, then it is a “final order” under the provisions of the PCB rules. The City’s reliance on Archer Daniels Midland v. Pollution Control Board (1986), 149 Ill. App. 3d 301, is misplaced. In that case, the court determined that the PCB order imposing a penalty was not a final order for the purpose of appeal because the amount of the penalty had not been determined. A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Flores v. Dugan (1982), 91 Ill. 2d 108.) In Archer Daniels Midland, even had the case been affirmed on appeal, the Board on remand would still have had to fix the amount of the penalty. In the case before us, the PCB had no further acts to perform.

We conclude, therefore, that the November 19, 1987, order remanding the case to the WCB was a proper and final order and was entered within the 120-day time period, plus agreed upon extensions, set forth in section 40.1(a) of the Act. Ill. Rev. Stat. 1985, ch. 111½, par. 1040.1(a).

Next, the City contends that the June 9, 1988, decision of the WCB was not timely made and that, therefore, the application of the City should be deemed approved.

Section 39.2(e) of the Act provides in pertinent part as follows:

“If there is no final action by the county board or governing body of the municipality within 180 days after the filing of the request for site approval the applicant may deem the request approved.” Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2(e).

The City calculates the time from the date it received the remand order from the PCB, November 23, 1987, to the date of decision by the PCB denying the application, June 9,1988, as 199 days.

The PCB contends that the City has waived the 180-day rule by accepting the WCB’s decision to toll the 180-day period and then participating in the hearing after the passage of the deadline. The PCB argues that the 41 days between the PCB remand and the appellate court’s dismissal of the City’s petition for leave to appeal should not be counted as part of the 180-day period, because the City knew that the Board was not including that time period in its calculation of the 180-day period and never objected.

Using the City’s calculations, the 180-day period ended on May 21, 1988. On May 19, the county’s zoning and planning committee met to take up the question of the City’s siting application. Also present at this meeting was the City attorney, Douglas Scott. The chairman, Pete McKay, noted that all the parties were “on hold” while the case was on appeal and announced that a final vote would therefore be scheduled by the full county board on June 9, 1988. The following colloquy occurred:

“McKay: Doug, you got anything to add to this? *** You know the schedule and on what we’re proposed to do and so forth?
Scott: Yes.”

The PCB argues further that on May 26, 1988, past the deadline of May 21, 1988, the City attorney sent a letter to the chairman of the county board asking that any WCB members influenced by ex parte communications be asked to recuse themselves. The City attorney also requested that one WCB member, not removed by the PCB’s order, nevertheless recuse herself in the upcoming vote. The letter contained no notice or indication that the City considered the 180-day deadline to have run.

We believe that the recent case of Citizens Against the Randolph Landfill (CARL) v. Pollution Control Board (1988), 178 Ill. App. 3d 686, is dispositive of this issue. In that case, the court determined that a site applicant was not entitled to automatic approval even though the county board took 206 days before rejecting the application.

Although the “Carl" case also involved a dispute over whether the site application had been filed as of January 22, 1987, as argued by the plaintiff or on March 17, 1987, as argued by the defendant, in determining when the 180-day deadline ran, the court assumed that January 22, 1987, was the correct date. The court then stated as follows:

“On the basis of a January 22, 1987, filing date, the deadline for county board action on the disposal company’s application would have been July 23, 1987; on the basis of a March 17, 1987, filing date, the deadline would have been September 23, 1987. The disposal company filed an opening brief on July 20, 1987, CARL [plaintiff] filed a brief on August 3, 1987, and the disposal company filed a reply brief on August 7, 1987. By participating in public hearings after the deadline for such hearings had passed on the basis of a January 22, 1987, filing date and by filing a reply brief after the deadline for county board action had passed on the basis of a January 22, 1987, filing date, the disposal company waived its right to a decision by the county board on or before that purported deadline.” 178 Ill. App. 3d at 696.

We are of the opinion that the rule set forth in the above case is equally applicable in the case before us. The City, without notice to the WCB of its intent to hold to the 180-day deadline, continued to participate in the proceedings and failed to object when it had an opportunity to do so, which put the rendering of the decision beyond the 180-day deadline. Therefore, we conclude that the City has waived compliance with the 180-day deadline for action on the application.

Next, the City contends that the decision of the PCB that the WCB hearing was fundamentally fair was contrary to the manifest weight of the evidence. Specifically, the City argues that the City was not “heard” on the issues and that the number of ex parte contacts influenced some of the WCB members, who thus ruled on the basis of factors outside the record.

In reviewing the decision of the WCB, the PCB is to take into consideration the “fundamental fairness of the procedures used by the county board *** in reaching its decision.” (Ill. Rev. Stat. 1985, ch. 111½, par. 1040.1(a).) In Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1036-37, this court defined the parameters for fundamental fairness considerations of a local government in ruling on a regional pollution control facility application, stating:

“Administrative proceedings are governed by the fundamental principles and requirements of due process of law. [Citation.] Due process is a flexible concept and requires such procedural protections as the particular situation demands. [Citation.] In an administrative hearing, due process is satisfied by procedures that are suitable for the nature of the determination to be made and that conform to the fundamental principles of justice. [Citations.] Furthermore, not all accepted requirements of due process in the trial of a case are necessary at an administrative hearing. [Citation.] *** Due process requirements are determined by balancing the weight of the individual’s interest against society’s interest in effective and efficient governmental operation.” 175 Ill. App. 3d at 1036-37.

The City points out that a number of the WCB members testified as to varying degrees of unfamiliarity with the record, or even to no knowledge of the existence of the record in this case. Further, the City points to the testimony of Terry Knight, the secretary of WCB, in which she stated that the record was kept in a locked room in the office she worked which was open 8 a.m. to 5 p.m., and in order to locate the record, the WCB member would have to ask her to unlock the door. According to Ms. Knight, during the entirety of the public hearings, spring of 1987 and spring of 1988, only four or five members so approached her. Of the five, only one voted against the City application, and none of the five who entered the room did so after the remand by the PCB. Finally, the City points out that there is no testimony that WCB members made special arrangements to see the record while the office was closed. Although there was testimony that the county administrator’s and the State’s Attorney’s offices had keys, there was no testimony that WCB members sought their help in viewing the record.

In Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, Waste Management complained that an adverse decision of the Lake County Board (LCB) was due to the fundamentally unfair decision process. Following the hearing on Waste Management’s site application, the hearing committee made a recommendation to the LCB to deny the application, which resolution was adopted by the LCB. On appeal, the reviewing court held that Waste Management’s attempt to separate the consideration of its application by the LCB and the hearing committee was unavailing. The court stated as follows:

“The entire county board need not be present at the hearing held before the five-member committee for fundamental fairness does not require the personal attendance of the entire board. [Citations.] As long as the record was made available for review by the full county board, all members heard the case irrespective of their attendance. [Citation.] In this case, the entire record was available for all the board members to review. The only requirement imposed on the board by the statute is that its decision be in writing and specify the reasons for the decision.” 123 Ill. App. 3d at 1080-81.

The City argues that the case before us is distinguishable from the recent case of Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023. In that case, this court, in response to an argument that the county board did not have adequate time or reasonable opportunity to consider the record before it as regards the vote on the decision, reiterated its prior holding that fundamental fairness in this context does not require the full county-board to debate the hearing committee’s recommendation so long as the record is made available for review by the entire county board. (175 Ill. App. 3d at 1044.) The City distinguishes the present case on the basis that in Waste Management there was testimony that “transcripts of the local hearings were ‘routinely made available within a couple of days after the hearing date’ ” (175 Ill. App. 3d at 1044), and evidence summaries were received by board members prior to the full county board hearing.

As our previous opinions have pointed out, the only statutory requirement concerning the decision of the comity board is that its decision be in writing and specify the reason for the recision. (Waste Management, 175 Ill. App. 3d at 1044; Waste Management, 123 Ill. App. 3d at 1081.) That the record was available to the WCB can be gleaned from the testimony of Terry Knight, the board secretary. Whether the board members availed themselves of the opportunity to review the record is not an issue relevant to this case, as there is no such requirement that they do so.

The City then argues that the ex parte contacts rendered the proceedings fundamentally unfair. We disagree.

The initial decision adverse to the City was remanded by the PCB on the basis that ex parte contacts deprived the City of a fundamental fair proceeding. The PCB also ordered that certain members of the county board recuse themselves from participating in the vote. After the conclusion of the hearing and just prior to the June 9, 1988, meeting, the City requested that an additional member of the board recuse herself which she did do. The City made no further requests for recusal. The decision was thereafter made by nondisqualified members of the county board.

Generally, a failure to object at the original proceeding constitutes a waiver of the right to raise an issue on appeal. (E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 38.) A claim of bias or prejudice on the part of an administrative agency or the judiciary must be asserted promptly after knowing of the alleged disqualification, since it would be improper to allow a party to withhold a claim of bias until it obtains a unfavorable ruling. Waste Management, 175 Ill. App. 3d at 1039, 1040.

We agree with the PCB that the remand and placing of the ex parte contacts on the record removed the danger of prejudice. It is true that the tone of these contacts was adverse to the granting of the site application. However, the existence of strong public opposition does not invalidate the board’s decision where the applicant was given an opportunity to present its case and where the applicant has not demonstrated that the board’s denial was based upon public opposition rather than the record. Waste Management, 123 Ill. App. 3d at 1081-82.

We are of the opinion that the PCB’s decision that the WCB hearing was fundamentally fair was not against the manifest weight of the evidence.

Finally, the City contends that the decision of the PCB is incomplete and contrary to the weight of the evidence and therefore should be reversed.

The City argues that the PCB’s decision is incomplete because it rendered a decision in the instant case on only one of five contested criteria, affirming the decision of the WCB that criterion (ii) of section 39.2 of the Act had not been proved by the City. The City maintains that in light of this court’s decision in Waste Management (175 Ill. App. 3d 1023), and the failure of the PCB to follow it, its decision must be reversed. Again, we disagree with the City’s position on this issue.

In Waste Management (175 Ill. App. 3d 1023), Waste Management contended that the PCB erred in failing to consider criteria (ii), (iii), and (vi) after affirming the Lake County board on criterion (i). In determining this issue, this court stated as follows:

“[Although the Act does not specifically require the PCB to review each of the challenged criteria in the event it can affirm on any one of the criteria, we believe the statutory duty to review the decision and the reasons for the decision of the county board pursuant to section 40.1 requires the PCB to review and to decide whether all the challenged findings of the county board are against the manifest weight of the evidence. It is clearly more efficient for the PCB to conduct a complete review of all challenged criteria, thereby presenting a complete record in the event of an appeal. Because the appellate court must have the benefit of the PCB’s expert consideration of each criterion before reviewing its decision [citation], the failure of the PCB to review each criterion will result in a remand to the PCB if the appellate court reverses the PCB. The PCB admits in this case that if we reverse as to criterion (i), ‘this court should remand the case back to the PCB for initial review of the record on criteria 2, 3 and 6.’ As a matter of judicial economy and efficiency, and in light of the PCB’s role as an administrative body possessing expertise in this area, we believe the PCB has a statutory obligation under section 40.1 to conduct a complete review of all challenged statutory criteria under the Act in its initial review of an appeal from the decision of a local board. Because we affirm the PCB’s decision as to criterion (i), in this case we need not remand for consideration of the remaining criteria. Waste Management is not prejudiced in this circumstance by the failure of the PCB to review all criteria acted on by the LCB [Lake County Board].” (Emphasis added.) 175 Ill. App. 3d at 1034-35.

The City seeks reversal not remand in this case on the basis that if the PCB’s failure to obey the “clear” mandate of this court results in a remand, then the City is penalized by the expense of having to go through another hearing, a result the City maintains was clearly not intended by the Act or by this court. The City further argues that the decision of the PCB that the City failed to meet its burden of proof that the landfill was safely located and designed was against the manifest weight of the evidence.

The role of a reviewing court on administrative review is limited to a determination of whether the administrative agency’s decision is contrary to the manifest weight of the evidence, and, as such, a reviewing court should not reweigh the conflicting testimony.

As we noted earlier in this opinion, the City and Save the Land, Inc., presented expert witnesses, all of whom testified as to the feasibility of the City’s landfill application. Rather than a detailed account of each witness’ testimony, suffice it to say that the City’s witnesses testified in favor of the application, and Save the Land, Inc.’s, witnesses testified against the granting of the application. The City argues that its witnesses were more expert. However, the City also states in its brief as follows:

“In summary, rather than the County Board being faced with many ‘uncontroverted facts’ that could have led the County Board to rule as they did (PCB decision at page 8), the fact is that all of the reasons cited were controverted, in many instances by testimony uncited by the PCB which was in quite close proximity to the facts they picked out.”

Since it is not our function to determine which witnesses are more expert than others, and since we may not decide controverted facts, which are bases for the City’s challenges to the PCB’s decision, we are of the opinion that the PCB’s decision on criterion (ii) must stand. Therefore, since the PCB’s decision with respect to criterion (ii) will stand, there is no necessity for a remand, and since the City suffered no prejudice, there is no need for the punitive measure of reversal of the PCB’s decision as requested by the City.

We must comment at this point that we do not disagree with the City’s argument that the opinion in Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, did require the PCB to review all of the criteria acted upon by the WCB. However, we note that our opinion in that case was issued just prior to the issuance of the PCB’s opinion in the instant case. We further note that the PCB here may in fact have been misled by our opinion since in that opinion we affirmed the PCB’s decision even though it considered only one of the criteria. Therefore, we reiterate that the PCB must review all of the criteria acted upon by the county board or other unit of local government even though a negative decision as to one of the criteria is sufficient to defeat the application. This will avoid remands, costly in terms of both time and expense. This rule shall be applicable to all cases not yet filed for review before the PCB as of the date of the filing of this opinion.

For all of the foregoing reasons, we affirm the decision of the PCB.

Affirmed.

LINDBERG and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD JUSTICE NASH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY G. MINK, Defendant-Appellant.
    Second District
    No. 2—87—0351
    Opinion filed July 26, 1989.

      NASH, J., dissenting.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, John X. Breslin, and Terry A. Mertel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

After a jury trial before Judge John L. Hughes, defendant, Randy G. Mink, was convicted of unlawful delivery of a controlled substance and unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, pars. 1401(a)(2), 1402(a)(2)). Defendant filed a post-trial motion alleging, among other things, that the State had failed to establish venue. Judge Hughes granted defendant a new trial. The State filed a motion to reconsider the new trial order on the basis of venue. The State’s motion was heard and granted by Judge Goshgarian. He entered judgment on the jury verdicts returned before Judge Hughes and sentenced defendant to concurrent sentences of six years on each charge. Defendant appeals Judge Goshgarian’s order on the State’s motion to reconsider, contending that Judge Hughes’ ruling on the post-trial motion was actually an acquittal which could not be reviewed. Alternatively, defendant contends that he is entitled to a credit against his fine of $5 for each day he was in custody prior to his trial.

The facts surrounding the offenses charged here are not relevant to this appeal. It is sufficient to say that defendant was charged by indictment with possession and delivery of less than 10 grams of cocaine on February 6, 1986, and possession and delivery of more than 30 grams of cocaine on February 11, 1986. Defendant was tried on the February 11, 1986, charges only. The trial court ruled that the State would be barred from introducing evidence of the February 6 incident unless the defense of entrapment was raised; thereafter, evidence of the February 6 incident would be admissible to rebut entrapment by demonstrating predisposition. Defendant raised the entrapment defense; the State thereupon offered evidence as to both the February 6 and February 11 incidents. The State established that the February 6 incident occurred at Piper Industries, located at 3801 Hawthorne, in Waukegan, Lake County. Testimony concerning the February 11 incident established only that it occurred at Piper Industries.

At the close of the State’s case, defendant moved for a directed verdict contending, among other things, that the State had failed to establish venue in Lake County for the February 11 incident. The motion was denied. The jury returned guilty verdicts on both charges, namely, possession and delivery, and judgment was entered on the verdicts.

Defendant filed a post-trial motion again asserting, among other things, that venue was not proved beyond a reasonable doubt. Defendant asked for a new trial or, alternatively, for reversal of the guilty verdicts. Defendant contended that the evidence of the location of Piper Industries was presented with regard to the February 6 incident only, and, because evidence of that incident was admitted only to rebut the entrapment defense, the evidence could not be considered as substantive evidence to prove venue for the February 11 incident. Judge Hughes granted defendant’s motion and set a new trial date.

The State filed a motion to reconsider Judge Hughes’ order. The State contended that venue had been proved. Judge Goshgarian heard and granted the State’s motion and entered judgment on the jury’s verdicts. Defendant was sentenced to concurrent terms of six years’ imprisonment on each count and ordered to pay a $3,600 street value fine.

On appeal, defendant contends that Judge Hughes granted defendant’s post-trial motion because the State failed to prove venue, and such a finding, that the evidence was insufficient to convict, is in effect an acquittal. Defendant contends, therefore, that the State’s motion to reconsider violated his constitutional guarantees against double jeopardy.

On appeal, defendant focuses on the State’s motion to reconsider as a violation of prohibitions against double jeopardy. Attention would more properly be focused, however, on Judge Hughes’ new trial order. If, in fact, Judge Hughes found that the State had failed to present evidence of venue sufficient to support defendant’s conviction, then his order for a new trial violated defendant’s double jeopardy guarantees.

The constitutional protection against double jeopardy safeguards a defendant from being forced to undergo a second trial where evidence introduced at the first trial was insufficient for conviction. U.S. Const., amend. V; Ill. Const. 1970, art. I, §10; People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 306, cert. denied (1986), 475 U.S. 1045, 89 L. Ed. 2d 571, 106 S. Ct. 1261.

Double jeopardy does not preclude retrial where the reason for reversal is a trial error, that is, a determination that defendant has been convicted through a judicial process which is defective in some fundamental respect, as distinguished from an evidentiary insufficiency. (See People v. Castiglione (1979), 75 Ill. App. 3d 469, 473.) Although retrial is permitted when the evidence produced at the first trial was sufficient to convict, the double jeopardy clause prevents retrial on the same charge where the evidence presented by the prosecutor at the first trial was insufficient to convict. (Crilly, 108 Ill. 2d at 306.) The reason for the reversal should control the decision whether or not there should be another trial. (People v. Brown (1968), 99 Ill. App. 2d 281, 302 (supplemental opinion upon denial of petition for rehearing).) Where reversal is based on insufficient evidence, a new trial would subject defendant to double jeopardy. (See Brown, 99 Ill. App. 2d at 302.) The prosecution is not afforded a second chance to supply evidence that it failed to produce at the first trial on the same charge. People v. Holloway (1982), 92 Ill. 2d 381, 386-87.

The proper application of the constitutional prohibition against double jeopardy requires that, when the issue is raised by defendant, the trial judge must decide whether the evidence was sufficient for conviction. (Crilly, 108 Ill. 2d at 308.) Even if the trial judge appraised the evidence incorrectly in deciding that it was insufficient for conviction, his order is not reviewable. Crilly, 108 Ill. 2d at 312.

The determinative question, therefore, is whether Judge Hughes found that the State failed to establish venue beyond a reasonable doubt. An averment in an indictment that a crime was committed in a particular county is a material element of the State’s case and must be proved beyond a reasonable doubt like all other elements. People v. White (1975), 26 Ill. App. 3d 659, 661.

At the hearing on defendant’s post-trial motion, the following exchange took place:

“THE COURT: I’m tom between simply saying all right, try [the case] again and make sure that the evidence is correct, granting a new trial which is not going to jeopardize anybody except take additional time to do a case which has already been tried, and doing what I believe is correct which I think is that that evidence forms a part of the total evidence and you make your decision based on the total evidence.
MR. BOCHES [Defense attorney]: That being that the total evidence was properly received for that purpose. If it was received solely for a specific limited purpose, the Jury should be precluded from considering it for any other purpose.
THE COURT: Okay. I will rule on it. Let’s not waste any more time on it. I think there is a good argument on both sides and I will grant your motion because I’m not quite sure. If you are in doubt I think that it would be wise to grant the motion and set it up for a new trial.
MR. GIBSON [Assistant State’s Attorney]: Just so the record is clear, Judge, I assume this is based on 115 — .
MR. BOCHES: It is important we declare it. I think it is because there is a question as to the venue, the limited evidence, correct?
THE COURT: That’s what it is based on. Certainly in my own mind, I think I should be able to take the totality of the evidence. On the other hand, your argument pertaining to the limited nature or purpose of that case, I rather imagine that whichever way it goes on appeal, it would be a split decision and if it is going to be a split decision on appeal then we might just as well go ahead and grant the new trial and be done with it and not waste time on it going up on appeal. ***
MR. GIBSON: Chapter 38, 114 — 11(e), you are granting this motion based on lack of venue?
THE COURT: That’s right. I’m not considering it to be double jeopardy.
MR. BOCHES: I understand that, but you are granting it based on questions where evidence received for a limited purpose is allowed to bootstrap in venue because motion in arrest of judgment is — .
MR. GIBSON: Your motion was there was not venue presented by the State to sustain the finding of guilty. Therefore, motion in arrest of judgment is granted and, therefore, under 114 — 11—.
THE COURT: I’m granting it based on your motion that you are asking for a new trial based on the fact that proper venue was not established.
MR. BOCHES: Yes.
MR. GIBSON: So there is no double jeopardy and the State does have a right to retry the case.
THE COURT: Yes.”

The court’s ruling on the venue issue is somewhat confusing. References to various irrelevant motions add to the confusion. The assistant State’s Attorney referred to section 114 — 11(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 11(e)) as ground for granting defendant’s motion. This section applies only to motions to suppress confessions. He also referred to defendant’s motion as a motion in arrest of judgment. A motion in arrest of judgment is made where the indictment, information or complaint does not charge an offense or where the court is without jurisdiction of the cause. (Ill. Rev. Stat. 1985, ch. 38, par. 116 — 2.) Defendant’s post-trial motion was neither a motion to suppress a confession nor a motion in arrest of judgment. References to those motions, therefore, were irrelevant.

While the trial judge never specifically stated that the evidence of venue was insufficient to sustain defendant’s conviction, he did state he was granting the new trial on the basis of the allegation that venue was not proved. Reading the transcript as a whole, it is clear that defendant’s post-trial motion was granted as a result of the allegation that venue had not been established.

Although the trial court believed that a new trial would not subject defendant to double jeopardy, a new trial would in fact allow the State a second chance to supply evidence it had failed to supply at the first trial. This is exactly what the constitutional prohibition against double jeopardy prevents. As the trial judge himself phrased it, in granting a second trial, he was allowing the State to “try it again and make sure that the evidence is correct.” The judge was not referring to correcting trial errors concerning admissibility of evidence; none were alleged. In this context, the judge was telling the State to make sure that the evidence at the second trial is sufficient to convict.

Although Judge Hughes entered an order for a new trial, his determination on the sufficiency of the evidence was in sum and substance an acquittal. A judgment of acquittal which will trigger double jeopardy protection occurs when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged. (See People v. Wallerstedt (1979), 77 Ill. App. 3d 677, 680.) Here, the trial court resolved the challenge to the sufficiency of venue evidence in defendant’s favor. A retrial in this situation would subject defendant to double jeopardy. The trial court should have entered a judgment of acquittal and discharged the defendant.

The trial court’s determination on the sufficiency of the evidence was an acquittal and as such was not reviewable. (Crilly, 108 Ill. 2d at 312.) The State could not appeal the acquittal, nor could it move for reconsideration of an order which was in substance an acquittal.

The State suggests that the trial court’s order was not based on insufficiency of evidence, but was based on the court’s determination of the weight of the evidence. This is clearly erroneous. The question of what weight to accord to evidence only arises when there is conflicting evidence or a question of credibility. (See Tibbs v. Florida (1982), 457 U.S. 31, 41-47, 72 L. Ed. 2d 652, 661-65, 102 S. Ct. 2211, 2218-21.) In this case there was no contradictory or conflicting evidence concerning venue. Defendant’s allegation was that evidence of venue was insufficient. The trial court was not called upon to weigh conflicting evidence here.

Finally, the State argues that the defendant waived his double jeopardy claim on appeal by failing to raise it in response to the motion for reconsideration or at the sentencing hearing. We disagree.

The State relies on People v. Scales (1960), 18 Ill. 2d 283. In that case, the defendant was indicted for sale and possession of marijuana. When the proof at trial revealed the substance to be heroin, the trial court on defendant’s motion entered a finding of not guilty. The defendant was reindicted, the new indictment reading the same as the old except the word “marijuana” was changed to “heroin.” The defendant was found guilty of the offenses in the second trial. On appeal, he contended that the second trial constituted double jeopardy.

In affirming Scales’ conviction, our supreme court held that the constitutional right not to be twice put in jeopardy for the same offense was a personal one that may be waived. The court further held that seeking a new trial or failure to raise the defense of double jeopardy before judgment in the trial court waives the defense. 18 Ill. 2d at 285-86.

The State’s reliance on Scales is misplaced. The Scales case was decided in 1960. In 1963, section 121 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 121 — 9) was enacted. Our Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)) is the successor statute to section 121 — 9 and provides in pertinent part as follows:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

Cases decided subsequent to Scales and the enactment of the “plain error rule” have for the most part relied on either section 121 — 9 or, later, Supreme Court Rule 615(a) in order to consider claims of double jeopardy that would otherwise have been deemed waived. (See People v. Valentine (1984), 122 Ill. App. 3d 782; In re L.R. (1982), 106 Ill. App. 3d 244; People v. Pendleton (1979), 75 Ill. App. 3d 580; People v. Gallos (1966), 77 Ill. App. 2d 132.) In these cases, the reviewing courts chose to consider the issue of double jeopardy, even though not preserved for review, because of the seriousness of the double jeopardy issue in the respective cases and its ultimate relationship to the integrity and fairness. of the judicial proceedings.

In those cases cited to us by the State and ones which our research has uncovered in which the issue of double jeopardy has been deemed waived for failure to preserve the issue for appeal, we note that double jeopardy was found not to exist or would have been found not to exist. People v. Escobar (1988), 168 Ill. App. 3d 30 (mistrial does not bar reprosecution of defendant where he consents to or his conduct constitutes acquiescence to the granting of the mistrial). E.g., People v. Green (1984), 125 Ill. App. 3d 734 (on appeal from conviction in second trial defendant claimed double jeopardy after the judge declared a mistrial after the first trial; even if considered on the merits, court would hold no abuse of discretion in declaring the mistrial); People v. Lance (1980), 87 Ill. App. 3d 943 (although holding that defendant waived double jeopardy argument, court noted that Illinois cases had consistently found against defendant on the basis for his double jeopardy argument); People v. Szudy (1978), 56 Ill. App. 3d 494 (defendant claimed double jeopardy after he was convicted of aggravated assault, alleging he had been placed under a peace bond for the same conduct. The court, while holding defendant waived the double jeopardy issue, also stated that the record reflected that defendant had not been subjected to a peace bond for the same conduct. We note with interest that the court did review the defendant’s conviction and remanded for a new trial due to misrepresentations at defendant’s trial, a basis not raised as error but which the court found to be “plain error” under Supreme Court Rule 615(a)).

The rule to be gleaned here from an analysis of these cases is that where the court, if after considering the issue of double jeopardy on the merits, would conclude that defendant was not placed in jeopardy, and if the issue has not been properly presented for review, the court will find a waiver of that issue. If on the other hand, when defendant has been placed in double jeopardy, and has failed to preserve the issue for review, the court will address the double jeopardy issue pursuant to the “plain error” doctrine of Supreme Court Rule 615(a).

We note in passing that both the State and the dissent in this case cite People v. Enoch (1988), 122 Ill. 2d 176, for the proposition that a claim of error must first be raised in the trial court to preserve it for review. While we do not dispute the correctness of the above statement, Enoch actually stands for the more narrow proposition that both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised at trial. (122 Ill. 2d at 186.) That the defendant raised the venue question in his motion for a new trial is not in dispute here, only the failure to raise the double jeopardy issue when the State moved to reconsider the granting of the motion for a new trial. However, even assuming the applicability of Enoch to the facts of the present case, the supreme court in Enoch points out that “plain error” is one of the three exceptions to the waiver rule in criminal cases applicable when no motion for a new trial has been filed.

Although not specifically argued by the State, we deem it prudent to address a second type of waiver which was stated in People v. Scales, to wit, whether defendant has waived the issue of double jeopardy by filing a motion for a new trial. In order to resolve this question, the history of the new trial waiver rule must be explored.

In People v. Liechron (1944), 384 Ill. 613, the defendant was charged with felonious assault with intent to commit rape and attempt to commit rape. After a bench trial, the defendant was found guilty of the assault but, on defendant’s motion, the trial court vacated that finding of guilt and then found defendant guilty of the attempt to commit rape. On appeal, defendant argued that lie was subjected to double jeopardy when the court, after vacating the finding of guilty on one charge, then found him guilty of the second when there had been no finding initially on that charge. The court rejected the double jeopardy argument, stating:

“It is sufficient answer to the contention here, however, to say that the finding was set aside on plaintiff in error’s own motion and the cause reconsidered, and were this a proper case for the application of the rule contended for, which we do not concede, plaintiff in error has waived it by his motion to set aside the finding, and allowance of that motion.” 384 Ill. at 615.

People v. Liechron was cited with approval in People v. Scales (1960), 18 Ill. 2d 283, 285.

In People v. Benson (1962), 24 Ill. 2d 159, the defendant was charged with two counts of murder; count I alleged that during the course of a felony rape, defendant killed the victim; count II alleged that the victim died as a result of the rape. The defendant was found guilty of murder. He appealed. In reversing without remand his conviction, the court stated that while the proof showed beyond a reasonable doubt that the defendant committed the rape, which could have resulted in the victim’s death, it was not proved beyond a reasonable doubt that the victim’s death resulted from the rape or due to any act by the defendant. Thereafter, defendant was indicted for the rape of the victim. The trial court denied defendant’s pretrial motion for discharge on the basis of double jeopardy, and following a jury trial, defendant was found guilty. He appealed, solely on the basis that he had been subjected to double jeopardy by the second prosecution. He contended that the reversal of his murder conviction operated as an adjudication that he was not guilty of rape.

In affirming the defendant’s conviction, the court stated:

“In our opinion the crux of this case is the legal effect of our prior decision in People v. Benson, 19 Ill. 2d 50. It is well settled that the retrial of an accused, after a judgment of conviction has been reversed and the cause remanded, does not justify a claim of double jeopardy. [Citations.]
It has been well stated that a defendant cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to subsequent jeopardy. [Citation.] We think the fact that the former conviction has been set aside at defendant’s instance is the basis of the rule, and it is not decisive that the appellate tribunal has or has not remanded after reversal. In Lane v. People, 5 Gilm. 305, this court reversed the judgment of conviction and ordered the prisoner discharged. However, the court stated: ‘As the judgment will be reversed at the instance of the prisoner, he will not, in legal contemplation, have been in jeopardy, and may again be indicted and put on his trial for the same offence.’ The Lane case was cited with approval in People v. Scales, 18 Ill. 2d 283.
In Gannon v. People, 127 Ill. 507, we held that where a judgment of conviction was vacated at the defendant’s motion, it was not double jeopardy to retry the accused on a new indictment for the same offense.” 24 Ill. 2d at 162.

The Benson court rejected defendant’s argument that conviction of the greater offense acquitted him of the lesser offense. The court noted that, in its original opinion, the court had stated that there was proof beyond a reasonable doubt that defendant was guilty of rape and that nothing in the court’s opinion suggested that the reversal of the murder conviction amounted to an acquittal of the charged rape. The court found it unnecessary to have remanded the case in order for the State to bring an indictment against defendant on the charge of rape.

An exhaustive review of the case law on this issue of waiver by the defendant was undertaken by the court in People v. Brown (1968), 99 Ill. App. 2d 281. In that case, the court reversed without remand the defendant’s conviction for rape on the basis that the evidence raised a reasonable doubt of defendant’s guilt. The State petitioned for rehearing contending that the appropriate appellate remedy would be to remand the case for a new trial.

In a supplemental opinion denying the petition for rehearing, the court first observed that where the State failed to present sufficient evidence at trial to obtain a conviction at trial and where none of the State’s material evidence was erroneously excluded, the State was not entitled to another opportunity to rehabilitate its case at the expense of defendant’s right to an acquittal. Since the defendant would have been entitled to an acquittal at the trial level which the State could not appeal, the defendant would be entitled to the same protection when his case was reviewed on appeal since the legal effect would be the same.

The court then discussed the rule that there is no double jeopardy where the defendant successfully seeks review of his conviction. The court distinguished between those cases in which the defendant seeks a new trial because of errors committed and those in which the defendant claims the right to an acquittal because the evidence was insufficient to convict. (The court noted that Brown had filed a motion for a new trial in the trial court which was denied. On appeal, he sought only an acquittal.) The court cited several cases in which although the basis for the reversal on appeal was the insufficiency of the evidence, nevertheless, the case had been remanded for a new trial. Noting that the Illinois Supreme Court had not yet issued a definitive opinion on the issue, the court, in dicta, stated as follows:

“While we are of the opinion that the decision in this case is supported by what we have set forth above, we should like to mention that we fail to comprehend any justification for recognizing a distinction between an appellant who asks for outright reversal with new trial relief (based on trial errors) only as an alternative, and an appellant who does not include such an alternate request in his appeal. *** We can think of no reason in fairness and justice why a defendant on appeal should be required to discard his right to seek a new trial based on trial errors, in order to validate his right to seek an outright reversal for lack of evidence. In any sensible consideration of his position, the former is seen to be a second-choice alternative to the latter. If his double jeopardy rights are deemed to have been waived by his request for a new trial, the waiver should then take effect only if the reversal is granted for the reasons contained in the new trial request, and, if the conviction is reversed for lack of evidence, the waiver contained in an accompanying request for a new trial would never become operative.” Brown, 99 Ill. App. 2d at 297-98.

Finally, the Brown court questioned whether it was appropriate to apply the theory of waiver to this situation, stating:

“Surely, it is a legal fiction to assume, without judicial inquiry, that an appealing defendant has been fully advised by his counsel that (1) while asking for reversal for lack of evidence, he will also, in the alternative, rely on trial errors in order to get a new trial; (2) that the defendant will therefore have to waive his right not to be tried again even though the appeal might turn out to be successful on the first point; and (3) that the defendant has then, in every case, knowingly, intelligently and understandingly waived such right. We can’t picture it. Neither can we visualize a true waiver as being present in any part of current appellate procedures.” 99 Ill. App. 2d at 298-99.

In People v. Harvey (1971), 132 Ill. App. 2d 761, the court held that defendant had waived his right to raise the defense of double jeopardy by requesting and receiving a new trial. The court distinguished Brown, stating as follows:

“[T]he [Brown] court distinguished the cases where a new trial was granted at defendant’s request, and those appeals where ‘reversal is granted for the reasons contained in the new trial request, ***.’ In the case before us the defendant asked for and was granted a new trial. This is not the situation contemplated by the Brown decision.
There is nothing in the record before us to indicate that the trial judge’s reason for allowing a new trial was because of lack of evidence. The defendant’s motion for a new trial contained numerous contentions as to why it should be granted. In support of his motion the defendant argued that the new trial had been granted because of insufficient evidence; however, the statement of the trial judge indicated that his decision was made because the defendant had alleged in his written motion that there was not sufficient time allowed for preparation of proper defense, or that some other procedural error had been observed by the judge during his examination of the transcript.” 132 Ill. App. 2d at 764.

Finally, in People v. Woodall (1974), 21 Ill. App. 3d 807, aff’d (1975), 61 Ill. 2d 60, the court rejected the State’s argument that defendant had waived his right to claim double jeopardy because he had obtained a new trial on his own motion, stating as follows:

“We agree with the observations contained in the trial court’s memorandum that the defendant in the instant case first asked for a judgment notwithstanding the verdict and in the alternative a new trial and therefore he should not be penalized because he did not limit his motion to his first choice which was a demand for complete relief which a judgment notwithstanding the verdict would have given him if a motion for the same had been granted.” 21 Ill. App. 3d at 810-11.

We would deem it exalting form over substance to distinguish the case before us from Woodall on the basis that although defendant here asked for alternative relief, the request for a new trial was stated first. Moreover, unlike People v. Harvey, the trial court here based the decision to grant the new trial on the fact that the State had failed to prove venue which was also the basis upon which defendant sought an acquittal. The court in the case at bar stated:

“I’m granting it based on your motion that you are asking for a new trial based upon the fact that proper venue was not established.”

In light of the cases analyzed above and the trial court’s own words, we conclude that defendant has not waived his right to raise the defense of double jeopardy by requesting alternative relief in the form of a new trial; neither has he waived the defense of double jeopardy by failing to preserve it for appeal as we consider it plain error under Supreme Court Rule 615(a).

In light of our decision, it is not necessary to address defendant’s contention concerning credit against his fine for pretrial custody.

The judgment of the circuit court is reversed.

Reversed.

UNVERZAGT, P.J., concurs.

JUSTICE NASH,

dissenting:

The trial judge granted defendant a new trial, at defendant’s request, after defendant’s attorney convinced the court that only part of the evidence offered by the State and considered by the jury could be properly applied as evidence of venue. It seems clear to me the trial judge found that, based upon all of the evidence, venue was established if the jury could properly make its decision based on the total evidence presented to it by the State. The judge expressed that he should be able to view all of the evidence in considering the post-trial motion for a new trial, but that there was a good argument on both sides of the issue. The judge stated he was not quite sure whether the jury should have been precluded from considering evidence received for a limited purpose for any other purpose and believed it best to resolve the issue by giving defendant the new trial he requested. The court did not find that the State had failed to prove the venue of the offense and stated, without objection by defendant’s counsel, that there was no double jeopardy impediment to a new trial. This trial judge, who has since retired, would find it difficult to understand how his findings have been turned around by the defendant in this case so as to be considered as some kind of an “implied” acquittal of defendant for double jeopardy purposes.

Nor do I agree with the conclusion of the majority that defendant did not waive his present claim of prior jeopardy by failing to raise it below. A claim of error must be first raised in the trial court to preserve it for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Constitutional issues, including the prohibition against double jeopardy, are waived by failure to object in the trial court. (People v. Scales (1960), 18 Ill. 2d 283, 164 N.E.2d 76; People v. Escobar (1988), 168 Ill. App. 3d 30, 39, 522 N.E.2d 191; People v. Green (1984), 125 Ill. App. 3d 734, 744, 466 N.E.2d 630; People v. Szudy (1978), 56 Ill. App. 3d 494, 498-99, 371 N.E.2d 1222.) As our supreme court noted in People v. Scales:

“The constitutional right to not be put twice in jeopardy for the same offense is a personal privilege which may be waived. [Citation.] The right has been waived where the accused seeks and obtains a new trial, (People v. Liechron, 384 Ill. 613,) or where he does not raise the defense of former jeopardy before judgment in the trial court.” (18 Ill. 2d at 285-86.)

In the present case, defendant made no objection to the trial court’s declaration on granting a new trial that principles of former jeopardy would not bar it. Nor did defendant raise this issue at either the hearing of the State’s motion to reconsider the order granting a new trial or at sentencing.

I would apply the standard declared by our supreme court in People v. Scales, and the appellate court decisions which follow it, and affirm defendant’s conviction.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ASSENATO, Defendant-Appellant.
    Second District
    No. 2—88—0557
    Opinion filed July 26, 1989.

      Terence Gillespie, of Genson, Steinback & Gillespie, of Chicago (Marc W. Martin, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Peter Assenato, was found guilty of unlawful possession of a controlled substance, armed violence and unlawful use of weapons by a felon, and was sentenced to 10 years’ imprisonment. He appeals, contending that (1) there was no probable cause to effectuate the traffic stop of his vehicle; (2) the stop for a traffic violation was merely a pretext to search for evidence; (3) the seizure and search of defendant after the stop was unconstitutional; (4) improper and prejudicial implications that defendant had committed other crimes were made in trial; and (5) the State’s closing argument was prejudicial.

On December 17, 1986, at approximately 8:15 p.m., Detective Nurczyk of the Lombard police department arrived at defendant’s suspected residence in Winfield, Illinois, to conduct a surveillance of the home. Although Winfield is outside of the boundaries of Nurczyk’s police officer jurisdiction, defendant was a suspect in a homicide which had occurred in Lombard six weeks earlier, and the Lombard police were seeking to locate and question him. Lombard police officers, at the direction of Detective Cuny, had conducted surveillance of defendant’s home during the six-week period.

Shortly after Nurczyk began the surveillance, two persons left the home and drove away in a small Pontiac. Nurczyk followed in an unmarked car and determined that the vehicle did not have a rear license plate. It was subsequently established that the vehicle had a four- by five-inch-license-applied-for form displayed on the back window, but Nurczyk stated he did not notice it at that time. Nurczyk continued to follow the vehicle and, by police radio, notified Cuny of the absence of a rear license plate. The decision was made to stop the vehicle and speak with the occupants. As defendant’s car was outside of the Lombard village limits, it was necessary for Nurczyk to seek the assistance of police officers who had jurisdiction in the area. Du Page County Sheriff’s Deputy Kundrot overheard this conversation while monitoring radio transmissions and met Cuny. Cuny told Kundrot that the car Nurczyk was following did not have registration plates and that the situation involved a murder investigation.

Officer Kundrot stopped the vehicle defendant was driving, Cuny pulled up behind Kundrot’s marked squad car, and Nurczyk also stopped. Both Officer Kundrot and Cuny observed that the vehicle had no rear license plate, and both testified that the driver appeared to be handing something to the passenger. Defendant exited the driver’s door of the vehicle and walked to the rear, where he was met by Kundrot and Cuny. Cuny recognized defendant from a booking photo and patted down the outside of defendant’s coat. Officer Kundrot asked defendant for his driver’s license, which he was unable to produce. Kundrot walked to the front of the vehicle to check the VIN number and noticed that defendant’s passenger, Angela Cassaccio, was still in the passenger seat of the car and was manipulating an object in her waistband. Kundrot informed Cuny, and they went to the front of the car, leaving defendant with Nurczyk. Kundrot ordered Cassaccio to get out of the car, but she refused to open the coat she was holding shut with her hands in her pockets. When Cassaccio turned her back on Cuny and reached toward her waistband with one hand, Cuny turned her around and saw she was holding a revolver. She was handcuffed and taken into custody.

Defendant was then arrested and searched, and Cuny recovered $1,545.00, a clam-shaped container, a vial, and a spoon from defendant’s person. It was later determined that the -vial contained .016 grams of a substance containing cocaine and the clam-shaped container had in it .07 grams of a substance containing cocaine.

Defendant was initially charged with possession of a controlled substance with intent to deliver and armed violence. He was subsequently indicted for those offenses and for possession of a controlled substance, unlawful use of weapons by a felon, and armed violence based on possession of a controlled substance.

Prior to trial, defendant filed a motion to quash arrest and suppress evidence which was denied. The fact that defendant was a suspect in a homicide was not introduced at trial, although the State did adduce the fact that officers wanted to question him on an unrelated matter and had been following him prior to the traffic stop. The jury returned verdicts of not guilty on the charges of possession of a controlled substance with intent to deliver and armed violence based on possession of a controlled substance with the intent to deliver, and found defendant guilty of possession of a controlled substance, armed violence based on possession of a controlled substance and unlawful use of weapons by a felon, for which concurrent sentences of imprisonment were imposed.

Defendant contends first that there was no probable cause to justify the initial stop of his vehicle. There are no conclusive rules for determining whether an investigatory stop is justified and each case must be adjudicated on its own facts. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 112, 485 N.E.2d 513.) The investigating officers testified that they stopped the car driven by defendant because it did not have a rear license plate and was thus in violation of the Illinois Vehicle Code. (See Ill. Rev. Stat. 1987, ch. 951/2, par. 3 — 701.) This fact provided the officers with justification for stopping defendant. (See People v. Tylkowski (1988), 171 Ill. App. 3d 93, 98, 524 N.E.2d 1112.) Although a license-applied-for sticker would be sufficient to operate the vehicle, the stop was at night and both Nurczyk and Officer Kundrot testified that they did not see the license-applied-for sticker until defendant’s vehicle had been stopped and defendant was outside the vehicle.

Defendant argues that the officers’ claim that they did not see defendant’s license-applied-for sticker is irrelevant to an objective inquiry into this matter. However, the test is not what the officers objectively should have seen; the test is whether, viewed objectively, the totality of the facts and circumstances known to the officer at the time of the stop would warrant a reasonable and prudent person to believe a crime had been committed. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) In this case, the officers had evidence that defendant’s vehicle did not possess a rear license plate which, viewed objectively, would lead a reasonable and prudent person to believe a crime had been committed.

Defendant also makes reference to the fact that he was not charged with a traffic offense. While an ad hoc discovery that a person committed an offense does not justify a seizure that was not supported by probable cause at the time it was made, probable cause to arrest will not be invalidated by a later determination not to charge a person for the offense for which he was originally stopped. An officer may always warn of a traffic violation or reprimand the driver without citing him, and the officer need not charge a minor violation when, after a stop, a more serious violation is discovered. See People v. Flowers (1982), 111 Ill. App. 3d 348, 352, 444 N.E.2d 242.

Defendant states that probable cause to justify the initial seizure of defendant was lacking because the officers would have had to notice that defendant had a license-applied-for sticker on the back window of his vehicle. However, the officers testified that they did not see the application, and that testimony was believed by the trier of fact. The credibility of witnesses is a matter for the trier of fact and will not be disturbed on appeal unless the evidence upon which the verdict is based is so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Ziehm (1983), 120 Ill. App. 3d 777, 783, 458 N.E.2d 588.) This court cannot conclude that there is a reasonable doubt that officers following a vehicle on a highway at night must have spotted and read a license application on the back window of defendant’s vehicle. We find that the visual observation of a missing rear license plate constituted reasonable grounds to stop a vehicle, and defendant does not dispute the fact that his vehicle did not have the license plate.

Next, defendant argues that stopping him for an alleged traffic violation was merely a pretext to search for evidence. Reviewing courts have been concerned with the problem of random stops of vehicles as a pretext or subterfuge for a search or for harassment (People v. Patterson (1980), 88 Ill. App. 3d 144, 146, 410 N.E.2d 223); however, the facts in this case do not raise this concern. Here, the police stopped defendant’s vehicle for having no rear license plate. While conceding that they wanted to talk to defendant concerning his possible involvement in a murder, the officers were not seeking to arrest defendant at that time or to obtain evidence from the occupants of the car. In fact, the officers did not even know who was in the car as it had been too dark for Nurczyk to see who entered the car at defendant’s residence. That defendant was committing a violation of the Illinois Vehicle Code was a reasonable inference drawn from the observations of the officers and not a pretext.

Next, defendant contends that the search and seizure conducted after the initial stop was unconstitutional, requiring suppression.

At the hearing on defendant’s motion to suppress, Cuny testified that after defendant’s car was stopped, he observed an object being passed from the driver to the passenger. The driver of the vehicle got out and walked to meet Cuny and Kundrot and, at that point, Cuny recognized him as defendant. Prior to this encounter, Cuny was aware that defendant’s vehicle had been observed at the scene of a murder, defendant had told a third party that he was going to inflict injury on the murder victim, he had threatened the murder victim with a gun, and he had struck the decedent in the head with a gun several weeks before the murder. Cuny also had information that defendant was tied to organized crime, he was a narcotics dealer, and had bragged that he was responsible for several deaths. Although it subsequently was determined that a valid license-applied-for sticker was on the window of the car, the pat-down search was justified since, at the time the search was made, Cuny had specific, articulable facts which, when taken together with natural inferences, made the search reasonable. (People v. Smithers (1980), 83 Ill. 2d 430, 436, 415 N.E.2d 327.) Knowledge concerning a particular defendant may be considered as facts supporting a Terry stop and frisk. (See People v. Solis (1985), 135 Ill. App. 3d 991, 994-95, 482 N.E.2d 207.) We find that the frisk was proper, given the facts known, and sufficiently limited in scope as Cuny testified that the initial search consisted only of his patting down the outside of defendant’s fur coat.

After Cuny conducted the pat-down search of defendant, defendant informed the officers that he did not have a driver’s license. (See Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 112.) In checking for the VIN number, Officer Kundrot observed the passenger reaching into her waistband as if she were manipulating an object. Despite Kundrot’s instruction to place both hands on the dashboard, the passenger kept reaching for the front of her waistband and moving the object. When the passenger was searched, a gun was retrieved. The recovery of the gun, together with Cuny’s and Kundrot’s observations of an object being passed from defendant to passenger, established probable cause to arrest defendant for unlawful use of a weapon.

Defendant argues that probable cause to arrest a person cannot arise merely from being in the company of another person who has been arrested. However, two of the three arresting officers saw defendant pass an object to the passenger, who was found to be carrying a gun, and Cuny knew that defendant had been known to carry a gun. Furthermore, given the fact that an unlawful-use-of-weapons charge may be based upon a theory of constructive possession (People v. Williams (1981), 98 Ill. App. 3d 844, 847, 424 N.E.2d 1234), the officers in this case were not required to actually find the gun on defendant’s person in order to believe that probable cause existed to arrest him for that offense. While more evidence may be needed to convict, convictions have been upheld even where a weapon was not found on the defendant and where others had access to it. (Williams, 98 Ill. App. 3d at 848.) The independent and reasonable search of the defendant’s passenger which produced a gun, coupled with the observations of defendant at the time his vehicle was stopped, provided probable cause to arrest defendant for unlawful use of a weapon.

It was incident to this lawful arrest that Cuny searched defendant. We note that, although neither side discusses the arrest of defendant by peace officers who were outside of their jurisdiction where the arrest occurred, the officers acted within the parameters of the law. (See People v. Rowe (1984), 128 Ill. App. 3d 721, 724, 471 N.E.2d 578.) The scope of a search incident to a lawful arrest extends to a search of the person and to the area within his immediate control. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.) The scope of the search in this case was proper, and defendant’s motion to suppress was properly denied. The evidence obtained pursuant to the search of the passenger provided probable cause to arrest defendant and the evidence obtained as a result of the arrest and search incident to arrest of defendant was admissible. A trial court’s decision on a motion to suppress should not be reversed unless manifestly erroneous (People v. Bajt (1983), 113 Ill. App. 3d 459, 464, 447 N.E.2d 432), and reversal is not warranted in this case.

Finally, defendant argues that his trial was replete with improper, irrelevant, and highly prejudicial references and implications that defendant had committed other crimes.

Initially, defendant contends that in its opening statement the State stressed that the police had defendant under surveillance prior to the traffic stop and that this argument permitted the jury to infer prior criminality. Counsel for the State stated, “It was about 8:15 p.m. when Detective A1 Nurczyk of the Lombard Police Department pulled into a driveway. He was conducting surveillance that night. He was conducting surveillance of a house next door to Peter Assenato’s. He was sitting in the driveway of the house next door to Peter Assenato’s.” After defendant’s objection to the above statement, the State was instructed not to use the word “surveillance” and was permitted to continue its opening argument. The State then began, ‘‘[Approximately 8:15 p.m., Detective Nurczyk of the Lombard Police Department followed a vehicle as it left a location in Winfield, Illinois. He followed that vehicle east on Roosevelt Road.” The State did not disclose during its opening argument that the police had defendant under surveillance, and we do not find any merit to defendant’s first argument.

Defendant’s second supposed example of other crimes evidence is that the jury was permitted to infer defendant had criminal propensities by virtue of the State adducing that other things were discussed when Detectives Cuny and Glennon questioned defendant during a 45-minute to one-hour interrogation session following defendant’s arrest. It is speculative to conclude that a jury will automatically associate other things being discussed with criminal propensities on the part of the defendant. See People v. Berlin (1979), 75 Ill. 2d 266, 269, 388 N.E.2d 412.

Defendant’s third example of other crimes evidence is that the State made reference to defendant’s statement following his arrest in which he boasted that he lived in an expensive hotel, owned a BMW, a Porsche, a $1,000 fur coat, and a $2,000 wrist watch. The State was precluded by the trial court from referring to these statements during the trial. Following counsel’s statement that defendant lived in a hotel, and prior to defendant’s objections to the State’s opening argument regarding defendant’s possessions, the trial court cautioned the jury that opening statements were not evidence. At the end of the trial, the jury was again instructed that statements made during opening and closing arguments were not evidence, and any statement that was not based on evidence was to be disregarded. Defendant contends that this statement, taken together with the State’s evidence that defendant supported himself through cocaine and was unemployed for several months, leads to the inference that defendant obtained the items through criminal ventures. That defendant was unemployed for several months was noted by the State in closing argument, which statement was objected to and sustained, and the jury was admonished that this was not evidence. Again, even if the jury did not disregard this statement, as admonished, it is mere speculation to conclude that the jury inferred that the items were obtained through illegal ventures.

Defendant’s fourth example of error relates to the seizure of $1,545 from his person at the time of his arrest which was found wrapped around a container of cocaine. Defendant told Cuny that the money was from the sale of cocaine and he was charged with unlawful possession of narcotics with intent to deliver. It was proper for the State to introduce this evidence as it was admitted to prove an element of the crime charged, not to establish defendant’s propensity to commit crime. See People v. Bartall (1983), 98 Ill. 2d 294, 309-10, 456 N.E.2d 59.

Defendant also argues that the manner by which the State proved the charge of unlawful use of weapons gave the jury the opportunity to surmise and guess as to defendant’s involvement in other criminal activities. In putting in the evidence of defendant’s prior conviction, the State called the officer who arrested defendant for the prior felony. The witness did not go into any details of the prior felony, but he testified that he had observed defendant commit a felony offense. Such information was necessary to establish an element of the unlawful-use-of-weapons charge. See People v. Bartall, 98 Ill. 2d at 309-10.

Defendant also argues that the State introduced evidence that he had committed numerous other violations of the law. However, these other crimes, namely, that defendant had no rear license plate, and no driver’s license, were admitted to show why defendant was stopped in the first instance. (See People v. Johnson (1982), 104 Ill. App. 3d 572, 578, 432 N.E.2d 1232.) As defendant challenged his initial stop, this evidence was relevant and properly introduced. Evidence that defendant did not possess a gun registration card was not prejudicial and was, at most, harmless error.

Finally, defendant contends that the State’s closing arguments were improper. He states that the State repeatedly misstated the law as to armed violence by wrongfully suggesting that one commits armed violence by merely possessing a weapon during commission of a felony rather than being armed with a weapon. However, the State stated only that possession was sufficient to find defendant guilty of unlawful use of a weapon by a convicted felon, and the jury was properly instructed as to the law. Defendant’s claim that the State improperly attacked the integrity of defense counsel lacks merit as, in context, the prosecutor’s statement that the defense misled the jury was not tantamount to an accusation that the latter lied. See People v. Hudson (1981), 102 Ill. App. 3d 346, 352, 430 N.E.2d 51.

Defendant also contends that by stating that defendant, as a cocaine dealer, disregarded “everybody else’s misery [and] *** the crimes that people commit to get cocaine,” the State improperly appealed to the community’s general abhorrence of cocaine. The State may comment unfavorably on the evil effects of crime. (People v. Hope (1986), 116 Ill. 2d 265, 277-78, 508 N.E.2d 202.) Argument suggesting that, had Angie Cassaccio not been uncomfortable with the gun, defendant would have escaped, we find was a reasonable inference from the evidence. (See People v. Hicks (1981), 101 Ill. App. 3d 238, 243, 427 N.E.2d 1328.) Finally, the argument that this case was important to the State, that the jury should send a message, and that the citizens of Du Page County depend on the legal system were isolated comments which in no way contributed to the jury verdict. We do not find any of these comments to be error in this case.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

DUNN and INGLIS, JJ., concur.