author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEX COOPER, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—0820
    Opinion filed March 26, 1993.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Joan F. Frazier, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant Alex Cooper, also known as Alex Malone, was found guilty as accountable for armed violence and first degree murder of Sammy Hatcher, and was sentenced to 27 years in prison. Defendant raises the following issues on appeal: (1) involuntariness of post-arrest statements; (2) denial of his sixth amendment right to confrontation; (3) the trial court improperly allowed speculative testimony that defendant was a gang member; (4) improper prosecutorial comments during closing arguments; (5) the sentence was excessive; and (6) the judge erred in entering judgment and sentence on two counts of murder where only one victim was involved. (Codefendant Elbert Wright, the shooter in the incident, pled guilty prior to defendant’s trial and also received a 27-year sentence.)

The record reveals the following facts. Lisa Nelson, a resident of 1161 North Larabee, Chicago, which is part of the Chicago Housing Authority Cabrini-Green project, testified on behalf of the State. On December 13, 1988, at around 4 p.m., she was walking into the building where she resided with her friend, Vernadeen Nelson (no relation). She saw three boys whispering in the lobby, whom she identified as defendant, Wright, and Tory Griffin. Defendant was 17 years old at the time. Lisa made an in-court identification of defendant and stated that she had seen him hundreds of times prior to that date. The women then went upstairs to Lisa’s aunt’s apartment.

Around 4:45 p.m., Lisa heard the sound of two or three gunshots while she was standing in the living room. She ran to the window which looked out onto the 1158 North Cleveland building of Cabrini-Green. Lisa saw Wright, Griffin and defendant enter the 1159 North Larabee building, which is connected to her building. Griffin wore a black and blue coat, Wright wore a long gray coat, and defendant wore a tan and brown coat. Lisa saw Wright shoot a gun from the building. Lisa knew Wright and Griffin by name. While Lisa had seen defendant on numerous occasions, she did not know his name until Vernadeen informed her that it was Alex Malone.

Following the shooting, the women called the police. The police arrived about 20 minutes later, and Lisa and Vernadeen spoke with them in the stairwell of the 1161 North Larabee building. The women also spoke with the police later that night. The following day, they met with the police at another location because they did not want anyone to see them speaking with the police. Later that evening, the officers drove the women to the station, where they identified defendant and Wright in a show-up.

The trial court conducted a voir dire examination of Lisa outside the jury’s presence to determine whether to permit testimony concerning defendant’s and Wright’s alleged affiliation with the Black Gangster Disciples. Lisa stated that she had known Wright for two years and had seen him use gang signs with his hands, and that he wore his hat in a particular manner to indicate his affiliation with the Disciples. She indicated that the various buildings in Cabrini-Green were controlled by different gangs, and that the 1161 North Larabee building was controlled by the Disciples. She had seen defendant in the company of Disciple members on previous occasions and therefore assumed he was also a member of that gang. However, she had never seen defendant represent that he was a gang member. The trial judge ruled that he would permit testimony regarding defendant’s and Wright’s affiliation with the Disciples.

Vernadeen Nelson also testified for the State. She admitted that she uses other names, but declined to divulge those names because of threats she had received. Vernadeen testified that she was with Lisa in Lisa’s aunt’s apartment and that she heard two or three shots fired around 4:45 p.m. She heard Lisa scream out and saw her looking out the window. She joined Lisa at the window and recognized defendant standing against the wall of the 1159 Larabee building. Defendant was “pressed up against the wall.” She demonstrated that defendant stood with his body against the wall, with his hands at his side. Defendant wore a tan winter coat, which she had seen him wear on many previous occasions. The women notified the police, and Vernadeen supplied defendant’s name as the third individual who was involved in the shooting.

On cross-examination, Vernadeen testified that the father of one of her children was also the boyfriend of defendant’s sister, Sabrina Cooper, and that the two women had previously argued about the boyfriend. She admitted that she gave the police an incorrect address when she first spoke with them. During redirect examination, she stated that she did not give the police her correct address because she did not want to testify, as she had two small children and had been threatened on several occasions.

Officer Anthony Graffeo of the Chicago police department testified that after he spoke with Lisa following the shooting, he proceeded to 624 Division in Cabrini-Green to the residence of Wright’s grandmother. Graffeo recovered a long gray coat at that location. Next, Graffeo went to Griffin’s residence, but he was unable to locate him. Finally, Graffeo proceeded to defendant’s residence, and defendant’s mother informed him that defendant was at work.

Graffeo went to defendant’s place of employment and spoke with him. He told defendant that he was a police officer and that he was investigating a murder that occurred the previous night in Cabrini-Green. Defendant voluntarily agreed to accompany Graffeo to the police station. After arriving at the police station, defendant was placed in an interview room. Defendant was not handcuffed, and the door to the interview room was not locked. Later that day, defendant’s mother came to the station. Graffeo told her that defendant was assisting in the investigation of the Cabrini-Green shooting. Graffeo stated that defendant’s mother did not ask to speak with him, nor did he ask to see his mother.

Detective Thomas Blomstrand testified that on the day of the shooting he was assigned to investigate it. Together with his partner, Michael Wick, Blomstrand headed toward 1159-1161 North Cleveland Street. En route to their destination, they received a radio message and drove instead to 1161 North Larabee. As he drove up to the building in an unmarked squad car, he saw two men standing in front of the doorway at an entrance to the building. Blomstrand identified Wright as one of the men. Both men ran into the building upon seeing the officers approach.

The officers left their cars and chased the men into the building, but were unable to find them. Thereafter, the officers spoke with Lisa and Vernadeen in the third-floor hallway. Following that conversation, the officers began their search for Wright, Griffin and defendant. At the crime scene, the officers saw a pool of blood on top of a ramp leading into the building and recovered four cartridge casings from a .380 automatic near the body, as well as a .22 cartridge casing.

Assistant State’s Attorney Adriane Mebane testified that on December 14, 1988, at approximately 10:15 p.m., she spoke with Detectives Blomstrand and Wick at Area 6 headquarters and learned that defendant and Wright were in custody. Defendant’s sisters were also present at the police station speaking with him. Mebane left the station and was summoned to return around 4:30 a.m. Mebane apprised defendant of his Miranda rights, and he agreed to give a statement. Defendant read the statement and made a number of corrections. At the conclusion of the statement, defendant indicated that he was making the statement voluntarily; that he had not been threatened nor had anyone made any promises to him to make the statement; and that he had been given something to eat and drink.

In defendant’s statement, he indicated that on December 13, 1988, around 4:42 p.m., he was in the lobby of the apartment building located at 1161 North Larabee accompanied by Wright, age 14, Demetrius West, Antoine Griffin, and Tory Griffin. Wright pulled out a .22-caliber gun, showed it to the others, and said “[L]et’s get into something.” Defendant construed Wright’s statement to mean that he wanted to shoot a member of the King Cobra street gang. Defendant told Wright that he was ready and that he “was with it,” by which he meant that he would watch out for the police.

Defendant, Wright, and Tory Griffin left the building. Tory Griffin remained on the street as a look-out, while defendant and Wright walked to 1158 North Cleveland considered to be King Cobra territory. As Wright and defendant entered the building, a man who was a member of the King Cobras walked up the ramp. From a distance of approximately 12 feet away, Wright fired at the man’s head. The victim uttered an exclamation, clenched his head and fell to the ground. Wright then walked another six feet closer to the victim and fired a second shot. Defendant and Wright ran back to 1159 North Larabee, where they met with West, and the Griffins. Wright told them how the shooting had occurred. The group then scattered, and defendant returned home. Defendant admitted that he and Wright were members of the Disciples gang.

The parties stipulated that at the scene of the shooting, police found seven .380 automatic cartridge casings, and one .22-caliber cartridge casing. The parties further stipulated that the bullet and bullet fragment removed during the autopsy of the deceased were from a .22-caliber weapon.

Defendant’s sisters, Sabrina Cooper and Bernestene Malone, testified on his behalf. Cooper testified that on December 14, 1988, she was in the house when the police entered and arrested her brother. She stated that she spoke with her brother at the police station later that day and that he was handcuffed to the wall. Malone similarly testified that when she spoke with her brother, he was handcuffed to the wall.

Defendant’s mother, Isabelle Malone Cooper, also testified on his behalf. On December 14, 1988, she had gotten off work around 10 a.m. from her position as a crossing guard for the Chicago police department. Two police officers came to her apartment looking for defendant. She told the officers that defendant was at work. When she finished her shift around 3:30 p.m., she went to the police station dressed in her uniform. She saw defendant’s name on the door of an interview room and asked the police whether she could speak with her son. The police refused her request. Two hours later, she attempted to speak with her son, but the police officers again denied her request. Cooper stated that she asked to speak with defendant approximately three or four times during the six hours she spent at the police station. When she did see defendant in the interview room, he was handcuffed to the wall.

At trial, defendant testified that he did not shoot the deceased on December 13, 1988, nor did he act as a look-out on behalf of the others. Defendant testified that around 3 p.m., on the day of the incident, he was outside of the building at 714 West Division and that he met some friends, including Demetrius West, Antoine Griffin, and Tory Griffin. Wright then approached the group and pulled out a gun. Defendant did not believe that the gun was real; however, Wright opened the barrel and showed him some bullets.

Wright placed the gun inside his coat and walked toward the 1159 North Larabee building, while defendant and his friends followed. Wright, Tory Griffin, and an individual named Walter Johnson then split off and walked towards the 1158 North Cleveland building. Defendant saw Wright and Johnson enter the building, while Tory Griffin remained in the street. Defendant was in the lobby of the 1159 North Larabee building with West and Antoine Griffin when he heard a gunshot. He looked out and saw Wright, Tory Griffin and Johnson running from the 1158 North Cleveland building back toward the 1159 North Larabee building. Wright then entered the building and told the group that he had just shot someone. Shortly thereafter, defendant left the group and went home.

The following day, defendant was picked up at his place of employment by the police. Defendant denied any involvement in the shooting incident during the first few police interviews. He fell asleep several times, but the police continually awakened him. Finally he told the police that he was involved in the incident. He gave the officers a statement; however, they did not first inform him of his Miranda rights. Defendant further denied the veracity of the statement which he gave to the court reporter. He stated that the officers did not strike him during the course of the investigation; rather, he only confessed because he was scared. According to defendant, there was no writing on the confession when he signed it. He denied that he signed each page of the statement or initialed it.

Joseph Szybist, a court reporter, testified for defendant that he recorded verbatim what was said during the session and that the transcript was in the same condition as when he originally produced it. Szybist further testified that he recalled hearing Mebane advise defendant of his Miranda rights and that she asked defendant bow he had been treated by the police.

During the State’s rebuttal case, Detective Blomstrand again testified that neither he nor Detective Wick threatened defendant. Blomstrand arrested defendant around 6:15 p.m. on December 14, 1988, after defendant told him that he was present when the deceased was shot to death. Defendant stated that he acted as a look-out when the shooting occurred. Later that evening defendant denied any involvement in the murder; however, he again stated around 2:30 a.m. that he acted as a look-out. After apprising defendant of his Miranda rights, he recorded the conversation on a general progress report which defendant signed.

The jury found defendant guilty of first degree murder. The following individuals testified on behalf of defendant at the sentencing hearing. Defendant’s friend, Ronald Fisher, testified to defendant’s community involvement in a tutoring program and positive interaction with children. Defendant’s father testified that defendant had possibilities for employment upon his release from prison through his labor union. Defendant’s mother also testified that he had never been in trouble prior to this incident. Defense counsel argued that Wright, the shooter in this incident, received a 27-year sentence of imprisonment. He asked the court not to give defendant a longer sentence than that which was imposed upon the person who was primarily responsible for the murder. After hearing the mitigating evidence, the judge imposed a sentence of 27 years upon defendant.

On appeal, defendant first asserts that his post-arrest statements were involuntary because he was only 17 years old, had no prior involvement with the criminal justice system, and was detained and questioned over 20 hours without contact with his mother, or allowed adequate food or the opportunity to sleep.

Prior to trial, defendant filed a motion to suppress statements and quash arrest. The trial court heard the testimony of Detectives Blomstrand and Wick, Assistant State’s Attorney Mebane, and defendant’s mother. The judge noted the absence of any testimony of verbal or physical threats or physical touching of the defendant during the course of the interrogation. The judge also noted that defendant first indicated his participation in the offense around 6:15 p.m., approximately five hours after he had been taken into custody, which therefore justified the police further detaining defendant. At the end of the statement given to assistant State’s Attorney Mebane, defendant indicated that he was making the statement voluntarily; that he had not been threatened nor had anyone made any promises to him to induce him to make the statement; and that he had been given something to eat and drink and had been allowed to use the rest room.

Whether a statement is voluntarily given depends on the totality of the circumstances. (People v. Sledge (1989), 183 Ill. App. 3d 1035, 539 N.E.2d 1312; People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) Factors to consider when making a determination of voluntariness include the age, education and intelligence of the accused, the length of the detention and the duration of the questioning, whether the accused was advised of his constitutional rights, and whether the accused was subjected to any physical mistreatment. (People v. House (1990), 141 Ill. 2d 323, 566 N.E.2d 259; People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145; People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) The test is whether it has been made freely, voluntarily, and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) The question of the competency of a confession is for the trial court alone to decide by a preponderance of the evidence, and its findings will not be disturbed by a court of review unless they are against the manifest weight of the evidence. People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316.

Application of the totality of the circumstances standard to the present case supports the trial court’s conclusion that defendant was not physically or psychologically coerced into making the post-arrest statements. After the police had spoken with Lisa and Vernadeen Nelson, who implicated defendant in the murder, the police went to his place of employment around 11 a.m. The record indicates that defendant voluntarily accompanied the officers to the police station for questioning. Officer Graffeo testified that after defendant arrived at the police station, he was not handcuffed, and the door to the interview room was not locked. Defendant was not handcuffed until he gave the officers an inculpatory statement at 6:15 p.m. While defendant did deny those statements shortly thereafter, it was proper for the police to pursue a rigorous investigation because of other corroborating evidence discovered later that evening.

We also find that defendant was adequately informed of his rights throughout the course of the interrogations. Detective Blomstrand testified that he continually informed defendant of his Miranda rights. Assistant State’s Attorney Mebane also indicated that she apprised defendant of his Miranda rights and that defendant agreed to give a statement. The court reporter also testified that he recalled hearing Mebane advise defendant of his Miranda rights and inquire as to how he had been treated. Too, the record is devoid of any suggestion that defendant did not understand the Miranda warnings.

While it is true that defendant was only 17 years old at the time of the incident and did not speak with his mother, we do not find those factors sufficient to overcome the voluntariness of defendant’s post-arrest statements. Defendant was allowed to speak with his sisters for approximately 25 minutes. The record also does not indicate that defendant actually requested to speak with his mother. Defendant had previously been arrested on a weapons charge; thus, he had some exposure to the criminal justice system.

For the reasons stated above, we find that the trial court’s denial of defendant’s motion to suppress statements was not against the manifest weight of the evidence.

Defendant next asserts that he was denied his sixth amendment right to confront witnesses when the trial court sustained questions posed to Vernadeen Nelson during cross-examination concerning aliases she might have used. At trial, the State asked Vernadeen during direct examination whether she used any other names. She declined to answer that inquiry. During the side bar conducted outside the presence of the jury, the prosecutor indicated that it was his understanding that Vernadeen was known as “Ms. Nelson” and “Ms. Com-gay,” and that he wanted to draw the potential sting of such duplicity during direct examination. Vernadeen stated that she did not wish to reveal other names she had used because she had been threatened.

During cross-examination, Vernadeen stated that when she first spoke with the police, she did not give them her correct address. Defense counsel also inquired as to the name set forth on her birth certificate. In a side bar, defense counsel informed the court that he needed to know the witness’ correct name in order to determine if she had a criminal record. The trial court stated that counsel should have determined that matter before the witness testified, and that she could be recalled in the event that she had a criminal record. The court then sustained the State’s objection to the question.

Defendant states that pursuant to Supreme Court Rule 412 (134 Ill. 2d R. 412), the State shall disclose to defense counsel the names and last known addresses of persons whom the State intends to call as witnesses. During discovery, defendant requested the names and addresses of both Vernadeen and Lisa. The State attempted to locate Vernadeen at the Gary, Indiana, address she had given; however, upon further investigation, it proved to be a vacant building. The day before trial commenced, defendant moved to strike “Bernadeen Nelson” as a witness because the State had not yet tendered her address. The court denied the motion, finding that the State had only been able to locate Vernadeen shortly before trial.

As support for his position, defendant relies upon Smith v. Illinois (1968), 390 U.S. 129, 19 L. Ed. 2d 956, 88 S. Ct. 748. In that case, the principal witness for the State, an informer, admitted on cross-examination that the name he had first given was false. The trial court sustained the State’s objections to questions on cross-examination as to the witness’ correct name and where he resided. The Court held that a defendant in a State criminal trial is deprived of the right to confront the witnesses against him as guaranteed by the sixth amendment where he is denied the right to ask a witness questions as to his name or where he lived. The Court reasoned:

“Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. at 131, 19 L. Ed. 2d at 959, 88 S. Ct. at 750, quoting Pointer v. Texas (1965), 380 U.S. 400, 404, 13 L. Ed. 2d 923, 926, 85 S. Ct. 1065, 1068.

The Supreme Court acknowledged that the extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. However, no obligation is imposed on the court to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked.

The State argues that the Smith decision has been subsequently construed to circumscribe this right when the witness’ personal safety is in jeopardy. (United States v. Varelli (7th Cir. 1969), 407 F.2d 735, 750 (no absolute right to exact address of witness if safety of witness is in doubt); People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357 (no abuse in barring cross-examination of complainant concerning her new home address, given its awareness of evidence that after occurrence at issue defendant had visited complainant’s home and chased her down the street).) However, we note that in each of the aforementioned cases, it is the witness’ address, not his or her identity, which is at issue.

In the present case, the trial judge was placed in the difficult position of balancing the potential harm to the witness in view of the threats she had received, against defendant’s absolute right to confrontation. The preferable course of action would have been for the trial judge to clarify the names which Vemadeen had used and to ascertain whether she had a criminal record. The trial judge has discretion to question witnesses in order to elicit the truth or clarify material issues which seem obscure. People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500; People v. Brown (1990), 200 Ill. App. 3d 566, 558 N.E.2d 309.

However, we find an error of this magnitude is harmless under the circumstances in light of the considerable evidence amassed against defendant. Lisa testified to substantially the same facts as those testified to by Vernadeen, with the exception of Vernadeen’s statement that she saw defendant “pressed up against the wall.” In several aspects, Vemadeen’s testimony was merely cumulative to the testimony rendered by Lisa. Most importantly, in defendant’s own statement he admits that he was in the lobby of the 1161 North Lara-bee building accompanied by Wright, West, and the Griffins. After Wright showed him the .22-caliber gun, he told him that he “was with it,” manifesting his intent to participate in the murder. In light of the circumstances in this case, we believe that the ruling of the trial court sustaining the State’s objections to the questions concerning the witness’ name and address was harmless beyond a reasonable doubt.

Defendant next asserts that the trial court improperly allowed speculative opinion testimony that defendant was a member of the Disciples. Specifically, defendant complains that Lisa Nelson was permitted to testify, without foundation, that defendant and Wright were members of the same gang even though she had never seen him represent his membership in that gang. Defendant maintains that the introduction of such improper opinion testimony was extremely prejudicial to him.

Upon review of the record, we find that the trial court’s actions were appropriate in this case. The trial judge conducted a voir dire examination of Lisa outside the jury’s presence and asked her whether residents of Cabrini-Green know which individuals are members of the various gangs. When Lisa indicated that it is common knowledge among the residents, the trial judge concurred with her assessment and concluded that if you live in this area, you do not need to be an expert to testify on this issue. Lisa testified that based upon the fact that she had seen defendant in the company of Wright, a known member of the Disciples gang, on numerous occasions, she assumed that he was a also a member of that gang.

We find Lisa Nelson’s testimony about defendant’s gang membership was appropriate in this case, especially when we consider that in his court-reported statement, defendant admitted that he was a member of the Disciples.

Defendant further contends that the State’s closing argument denied his right to due process of law because it unfairly bolstered the testimony of Vernadeen and Lisa by arguing that these two witnesses risked their lives in order to testify.

At the outset, we note that prosecutors are afforded wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant (People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836), considering the context of the language used, its relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial. (People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) Vernadeen’s and Lisa’s apprehension of testifying for fear of their safety has been made part of the record, and as such, the State could comment upon this evidence and draw all legitimate inferences therefrom. People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.

Defendant further assigns as error the comments made by the State during closing argument which aroused sympathy for the deceased, and thereby encouraged the jurors to minimize the importance of the rights of the accused. However, defendant’s failure to include this issue in his post-trial motion results in waiver upon review. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Belatedly, defendant argues that the State pandered to the jury’s fears concerning gang-related violence by urging the jury to “send a message” to defendant and to various gangs in Cabrini-Green in order to protect the rights of others. We reject defendant’s contention, for it is entirely proper for the prosecutor to dwell upon the evil results of crime and to urge the fearless administration of the law. People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357; People v. Batson (1992), 225 Ill. App. 3d 157, 587 N.E.2d 549.

Defendant next posits that defendant’s sentence of 27 years for murder was excessive in light of his limited involvement in the offense, his youth and his lack of any significant criminal background, and the mitigating factors as testified to by defendant’s parents and friend.

The determination of the appropriate sentence to impose in a given case is a matter within the sound discretion of the trial judge, and his decision will not be overturned absent an abuse of that discretion. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998.) After careful review of the record, we will not disturb the imposition of sentence, especially in light of the fact that Wright pled guilty to this offense and received a 27-year sentence of imprisonment. We also note that the court’s sentence was well within the statutory range of not less than 20 years nor more than 60 years for first degree murder. Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(1).

Finally, defendant contends that where only one person was killed, the trial court erred in entering judgment and sentence on two counts of murder. However, the record reveals that at sentencing, the imposition of the 27-year sentence was based upon defendant’s conduct in acting as a look-out during the murder of the deceased. Therefore, there is no need for resentencing on this issue. Nonetheless, as the State concedes, the judgment order should be corrected to reflect only one conviction for murder.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified with respect to the judgment order.

Affirmed as modified.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE ex rel. THE DEPARTMENT OF PUBLIC AID, Plaintiff-Appellant, v. WILLIE DENT et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 91—3754
    Opinion filed March 31,1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for appellant.
    Levenfeld & Gold, of Chicago, for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, the People of the State of Illinois ex rel. the Illinois Department of Public Aid, appeals from the dismissal of its complaint against defendants, Willie and Laura Dent, pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) for lack of diligence in service. The State argues that Rule 103(b) did not apply to its action to recover public assistance benefits because no statute of limitations applied to such an action. We reverse and remand.

The issue in this case is whether a complaint by the State of Illinois to recover public assistance benefits paid to defendants is subject to dismissal for lack of diligence pursuant to Supreme Court Rule 103(b).

On October 31, 1989, the State filed a complaint that alleged the following. From August 1975 through March 1976 and from February 1977 through April 1979, defendants received public assistance from the State of Illinois. Defendants were under a statutory duty to promptly notify the Illinois Department of Public Aid of any change of income. There was a change in defendant Laura Dent’s employment from December 16, 1974, through January 1982. As a result of earnings from her employment, there was an overissuance of public assistance in the amount of $15,324.79.

A summons was issued on October 31, 1989, to serve defendants at 1514 E. 80th Street in Chicago. Service was attempted on November 5 and 7, 1989. An alias summons was issued on June 5, 1991, to serve defendants at 5652 S. Wells in Chicago. Service was made on June 18, 1991. Defendants filed an appearance on July 2, 1991.

On August 9, 1991, defendants filed a motion to dismiss the complaint pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) based on a lack of due diligence in serving them. Defendants alleged that they had continuously lived in Chicago and were listed in the telephone directory between the dates of the filing of the complaint and service.

The motion to dismiss was granted, and the complaint was dismissed with prejudice.

The State argues on appeal that: (1) a statute of limitations cannot be asserted against it in actions involving public rights unless the statute expressly abrogates the governmental limitations immunity; (2) no statute of limitations applied to this action; and (3) therefore, Supreme Court Rule 103(b) did not apply. As defendants concede that the State’s action is not governed by a specific statute of limitation, the issue is whether the State is subject to Rule 103(b), which states:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 134 Ill. 2d R. 103(b).

The purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of process on them and to prevent the circumvention of statutes of limitations. (Segal v. Sacco (1990), 136 Ill. 2d 282, 286, 555 N.E.2d 719.) Prevention of intentional delay in service of summons until after expiration of a statute of limitations was a primary reason for the rule. Segal, 136 Ill. 2d at 286.

There is a doctrine of governmental immunity from statutes of limitations. It is based on the policy judgment that the public should not suffer because of the negligence of its officers and agents in failing to promptly assert causes of action belonging to the public. (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 461, 451 N.E.2d 874; see also Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580.) The test is whether the right that plaintiff governmental unit seeks to assert is in fact a right belonging to the general public or whether it belongs only to the government or to some small and distinct subsection of the public at large. Shelbyville, 96 Ill. 2d at 462; see, e.g., Winakor v. Annunzio (1951), 409 Ill. 236, 249, 99 N.E.2d 191 (belated change of variable contribution rate by Department of Labor permitted because it was in aid of the public purpose of relieving unemployment); Clare v. Bell (1941), 378 Ill. 128, 130-31, 37 N.E.2d 812 (action to collect penalties on delinquent property taxes allowed to proceed, apparently because the right to collect them was “public”); People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326, 153 N.E. 488 (action to impose city license fee on a foreign fire insurance company held “public” because the proceeds would benefit city’s fire department); City of Chicago v. Dunham Towing & Wrecking Co. (1910), 246 Ill. 29, 92 N.E. 566 (city’s interest in recovering damages for destruction of bridge which it was under obligation to maintain held “private”).

Where a statute of limitations expressly includes the State or other governmental agencies, the governmental limitations immunity does not apply. County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 152-53, 485 N.E.2d 1076.

People ex rel. Powell v. Luttrell (1970), 130 Ill. App. 2d 241, 245, 264 N.E.2d 737, which involved a motor vehicle tax, held that the State was not barred by Rule 103(b) because the rule’s purpose was to prevent the circumvention of a statute of limitations and because no statute of limitations applied to the State’s action for the collection of taxes. There was no logical relationship between the rule’s standard of reasonable diligence and the State’s action to collect taxes because of the absence of an applicable statute of limitations. (Powell, 130 Ill. App. 2d at 245.) The rule requiring a plaintiff to exercise reasonable diligence in obtaining service of process is intended to supplement the function of a statute of limitations. Powell, 130 Ill. App. 2d at 245.

The same reasoning should apply to the State’s action here. The trial court erred in dismissing the State’s complaint.

Defendants make the argument that the complaint was properly dismissed because there is a “conflict” between Supreme Court Rule 103(b) and the absence of any statutory provision limiting the State in recovering public assistance overpayments. There is no conflict; the rule simply does not apply.

The judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

TULLY, P.J., and GREIMAN, J., concur.


author: JUSTICE BUCKLEY

text:
    SAM JOHNSON, Plaintiff-Appellant and Cross-Appellee, v. MIGUEL G. ORTIZ, Defendant (Debbie Green, Defendant-Appellee and Cross-Appellant).
    First District (1st Division)
    No. 1 — 92—0257
    Opinion filed April 12,1993.

      Creswell, Fares, Ryan, Frost & Bijak, of Chicago Heights (David J. Fares and Karenne A. Giannini, of counsel), for appellant.
    Bullaro, Carton & Stone, of Chicago (James R. Branit, Thomas A. Carton, and Donald E. Green, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Sam Johnson filed a two-count complaint seeking damages for injuries sustained on January 6, 1989, in Calumet City, Illinois, when his car was hit by the car driven by codefendant Miguel Ortiz, who was allegedly under the influence of alcohol. Defendant Debbie Green owned the vehicle which codefendant was driving at the time of the accident. Count I of the amended complaint alleged that codefendant negligently operated the car. Count II alleged that defendant negligently entrusted her car to codefendant. Defendant initially filed a special appearance to contest in personam jurisdiction and move to quash service. The circuit court denied defendant’s motion and held that she was subject to jurisdiction in Illinois. Then, defendant filed a motion for summary judgment on count II. The circuit court ordered summary judgment in favor of defendant. Plaintiff filed this appeal. Defendant’s response brief included a cross-appeal arguing that the circuit court improperly held that it had in personam jurisdiction over her.

On January 6, 1989, at approximately 9:30 a.m., plaintiff and codefendant were involved in a car accident with each other on River Oak Drive in Calumet City, Illinois. Plaintiff allegedly suffered injuries from that accident. A police officer arrived on the scene and prepared a report. Codefendant claimed his address was 4 Carroll Street, apartment 2 in Hammond, Indiana, which was defendant’s address.

Codefendant stated in his deposition that on January 5, 1989, he was living with his sister on Hohman Street in Hammond, Indiana. On the evening of January 5, codefendant and his daughter walked to defendant’s apartment. Codefendant, his daughter, defendant and her son watched movies at the Carroll Street apartment. After defendant, her son and codefendant’s daughter fell asleep, codefendant went into defendant’s bedroom and took all the keys from her purse, including her keys to the apartment and to her 1978 Thunderbird. During his deposition, codefendant testified that he did not have permission to drive defendant’s car, but took it anyway. Codefendant further admitted that if he had asked for permission, she would have denied it. Defendant had not allowed him to use her car since his regular license had been taken by the State of Indiana and replaced with a work permit license. Codefendant intended to take the car and return with it before defendant awoke. He testified that he had never taken defendant’s car without her prior express permission and had never driven her car since having a work permit license. The approximately 10 to 15 times he had used defendant’s car in the past, he had had a valid driver’s license and her express permission. Codefendant also explained that after the accident, he gave defendant’s address as his own so that the police officer would not think that he stole the car.

Defendant testified during her deposition that when she awoke on January 6, she found that codefendant’s daughter was still asleep, but that codefendant was not there. She went outside and discovered that her car was missing. Defendant called the police and made a report that the car was stolen. She could not remember if she had learned of codefendant’s accident prior to reporting the car stolen. She did remember that the police did not arrive at her apartment until that afternoon and that by that time she had learned of the accident. The police incident report reflects that she informed police that codefendant had taken her car sometime between 10 p.m. on January 5 and 8 a.m. on January 6 without her permission.

On appeal, plaintiff argues that the circuit court improperly granted summary judgment in favor of defendant because there are genuine issues of fact. A motion for summary judgment should only be granted if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In determining whether a triable issue exists, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Discovery depositions must be taken as true if left uncontroverted by affidavit or counteraffidavit. In re Estate of Myers (1983), 120 Ill. App. 3d 726, 458 N.E.2d 1102.

A person may be liable for negligent entrustment of an automobile if that person entrusts an automobile to one whose incompetency, inexperience or recklessness is known or should have been known by the owner or entrustor of the automobile and an injury results from that entrustment. (Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82.) It is uncontroverted that defendant did not give codefendant express permission to use her car. Plaintiff, however, theorizes that defendant negligently entrusted her car to codefendant through implied permission. Implied permission involves an inference or circumstances arising from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 243 N.E.2d 40.

Plaintiff asserts that several questions of material fact exist which relate to the issue of implied permission. For example, plaintiff argues that defendant acquiesced in codefendant’s use of the car because she did not report that the car was stolen until after she learned that codefendant had an accident while driving it and, additionally, because she never pressed charges against him for allegedly stealing it. Plaintiff also argues that questions of material fact exist as to whether codefendant knew where the keys to the car were kept and whether he was residing with defendant at the time of the accident. Even when we view the above inferences most liberally in favor of plaintiff, they do not amount to evidence of mutual acquiescence or lack of objection as required for there to be implied permission.

In Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 544 N.E.2d 804, the appellate court held that facts similar to those above, such as leaving the keys on a dresser in a bedroom where the unauthorized driver sometimes sleeps, living with the unauthorized driver and failing to report the car stolen until after learning of the accident, did not establish implied permission. (Kosrow, 188 Ill. App. 3d at 784-85, 544 N.E.2d at 808.) The court reasoned that there was no evidence that there was a regular practice of allowing the unauthorized driver to use the car. The Kosrow court further found that there was overwhelming evidence to the contrary of implied permission, such as the unauthorized driver’s testimony that he knew the defendant did not want him driving his car and defendant’s testimony that he did not allow the unauthorized driver to use his car. Kosrow, 188 Ill. App. 3d at 785, 544 N.E.2d at 808.

In the case at bar, the uncontradicted evidence is that prior to having his regular Indiana driver’s license suspended and being issued a work permit license, codefendant was always required to get defendant’s express permission to use her car. At the time of the accident, when he only had the work permit license, codefendant was never allowed to drive the car under any circumstances. In fact, when he wanted to go somewhere, defendant would drive him. Thus, the relevant regular practice between defendant and codefendant regarding the use of the car was that he was not allowed to drive it under any circumstance. Considering the holding in Kosrow and the uncontradicted testimony of defendant and codefendant, there are no questions of material fact which would bear on the outcome of plaintiff’s count against defendant for negligent entrustment by implied permission. We, therefore, affirm the circuit court’s order of summary judgment in favor of defendant.

In her cross-appeal, defendant argues that she was not subject to in personam jurisdiction in Illinois under the long arm statute (Ill. Rev. Stat. 1985, ch. 110, par. 2— 209(aX2)) nor did such jurisdiction meet the Federal due process requirements (U.S. Const., amends. V, XIV). Notwithstanding our holding on the previous issue, we find it was error for the circuit court to fail to quash service.

Where personal jurisdiction over a nonresident is contested, the burden of establishing it rests on the plaintiff to establish jurisdiction by a preponderance of the evidence. (Finnegan v. Les Pourvoiries Fortier, Inc. (1990), 205 Ill. App. 3d 17, 562 N.E.2d 989; People ex rel. Hartigan v. Kennedy (1991), 215 Ill. App. 3d 880, 576 N.E.2d 107.) All undenied, well-pled allegations in his complaint must be accepted as true. (Mandalay Associates Ltd. Partnership v. Hoffman (1986), 141 Ill. App. 3d 891, 491 N.E.2d 39.) Facts contained in an uncontested affidavit denying jurisdiction, however, must also be accepted as true. Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc. (1985), 136 Ill. App. 3d 1084, 483 N.E.2d 1291.

The following three criteria must be considered to determine whether the exercise of personal jurisdiction over a nonresident defendant under the long arm statute satisfies due process: (1) whether the nonresident defendant had “minimum contacts” with the forum State such that he had “fair warning” that he may be required to defend himself there; (2) whether the action arose out of or relates to defendant’s contacts with the forum; and (3) whether it is reasonable to require the defendant to litigate in the forum State. (Ores v. Kennedy (1991), 218 Ill. App. 3d 866, 578 N.E.2d 1139; U.S. Const., amends. V, XIV.) Thus, there must be some act by which defendant purposefully availed herself of the privilege of conducting activities within the forum State, thereby invoking the benefits and protections of its laws. World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.

Jurisdiction under the long arm statute is limited by the due process clause of the United States which requires defendants to have minimum contacts with the forum state. (U.S. Const., amends. V, XIV; Milligan v. Soo Line R.R. Co. (N.D. Ill. 1991), 775 F. Supp. 277.) We find that defendant’s alleged negligence was not sufficient minimum contact with Illinois to permit personal jurisdiction in compliance with due process. In Kinney v. Anchorlock Corp. (N.D. Ill. 1990), 736 F. Supp. 818, the court held that a truck seat manufacturer’s alleged commission of a tort in Illinois was not sufficient minimum contact to satisfy due process requirements even if it was foreseeable that a driver would take the truck to Illinois, because no other evidence indicated that he purposefully availed himself to the privileges of Illinois law.

In the case at bar, the cause of action stated in plaintiff’s complaint was negligent entrustment. In order to attempt to prevail, plaintiff was forced to rely on the theory of implied permission because there was uncontroverted testimony and a sworn statement that codefendant did not have express permission to use defendant’s car. Since the alleged permission was “implied,” defendant could not have foreseen that codefendant would drive to Illinois and injure someone. Moreover, as in Kinney, there is no other evidence that she purposefully availed herself of the privileges of Illinois law. The uncontradicted evidence is that defendant had no contacts with Illinois in any form or manner. Defendant had lived in Indiana since 1970, had worked there since 1980, her car was registered in Indiana, bore Indiana license plates and was kept at her residence in Indiana. We find that the assertion of jurisdiction does not comply with Federal due process requirements. (See Hrubee v. National R.R. Passenger Corp. (N.D. Ill. 1991), 778 F. Supp. 1431.) It is unnecessary to determine whether the requirements of Illinois’ long arm statute have been met because the Federal due process requirements bar exercise of in personam jurisdiction in Illinois over defendant. (See Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc. (1991), 213 Ill. App. 3d 675, 572 N.E.2d 353.) Accordingly, we hold that the circuit court erred in denying defendant’s motion to quash service for lack of personal jurisdiction because defendant lacks the requisite minimum contacts with Illinois.

For the foregoing reasons, we affirm in part and reverse in part the judgment of the circuit court of Cook County.

Affirmed in part and reversed in part.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR CORDERO, Defendant-Appellant.
    Second District
    No. 2 — 91—0674
    Opinion filed May 11,1993.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, Sherry R. Silvern, of Aurora, and David W. Devinger, of Woodstock, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Hector Cordero, was convicted by a jury of the possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 951/2, par. 4—103(a)) and resisting a peace officer (1. Rev. Stat. 1989, ch. 38, par. 31—1). The trial court sentenced defendant to six years’ imprisonment for the stolen vehicle offense. Defendant appeals this conviction, contending that it must be reversed because the State’s case was predicated largely on inadmissible hearsay evidence. We affirm.

Officer Todd Eschman, of the Elgin police department, was en route to an unrelated call on February 20, 1990, when he noticed a Mazda RX-7, which was missing a front license plate, turning onto Seneca Street. The driver of the RX-7, defendant, stared at Eschman, so Eschman ran a check on the rear plate, number QA 7781. The dispatcher asked whether the plate was on a silver RX-7, and when Eschman replied affirmatively, the dispatcher advised Eschman that the RX-7 was reported stolen in Chicago. Officer Dennis Hood radioed that he was stopping the vehicle.

Hood was following the RX-7 up Lawrence Street, when it pulled into the driveway at 211 Lawrence. Hood parked his squad car and blocked the driveway. Defendant got out of the RX-7 and began walking towards the house. Hood called to defendant to return to the car. Defendant asked what Hood wanted, and Hood said he would tell defendant if defendant returned to the car. Defendant then went up the stairs to the front porch and ran toward the front door. Defendant yelled for help. Hood ran onto the porch and grabbed defendant before he had a chance to get inside. Hood informed defendant that he was under arrest, but defendant ran down the steps. When Hood grabbed defendant again, defendant whirled and fell into a snowbank. Defendant fought with Hood until Hood subdued him. Other officers arrived and assisted with handcuffing defendant. Eschman arrived at 211 Lawrence when the officers were placing defendant in the squad car.

Hood looked in the RX-7 and noticed it had a temporary key in the ignition and an ignition piece that was not affixed to the steering column. Hood removed the ignition piece and the temporary key. The key was not a standard size automobile key. The ignition on the RX-7 was hollowed out so that the ignition piece fit.

Ellen Massart, a claims representative for State Farm Insurance Company, testified that, because the RX-7 had not been recovered, the insurance company entered into a settlement with its insured for the RX-7 on February 9, 1990. Subsequently, the vehicle was recovered and sold for salvage. Massart further testified that defendant did not have permission to possess the RX-7 on February 20, 1990.

The State introduced into evidence a title certification for the RX-7 which showed that title was transferred to State Farm from a third party on February 12, 1990. Defendant presented no evidence.

Defendant objected to Eschman’s and Hood’s testimony regarding the dispatch, and the court overruled the objections. Defendant also moved to strike the testimony that the vehicle was reported stolen, on the basis of hearsay, which the court denied. Defendant preserved the issue in his post-trial motion, which the court also denied. Defendant timely appealed.

Defendant contends that it was reversible error for the court to overrule his hearsay objections without a limiting instruction to the jury. That the vehicle was stolen is essential to the charge of the unlawful possession of a stolen vehicle. (See Ill. Rev. Stat. 1989, ch. par. 4—103(a)(1).) This element may not be proved by inadmissible hearsay. (People v. Clark (1982), 108 Ill. App. 3d 1071, 1081.) Hearsay is the in-court testimony of an out-of-court statement offered to prove the truth of the matter asserted. (People v. Malave (1992), 230 Ill. App. 3d 556, 560.) A police dispatch that a vehicle was reported stolen constitutes hearsay. People v. Tucker (1989), 186 Ill. App. 3d 683, 691.

The State responds that the statements were properly admitted to explain the police procedure. A police officer may testify to his or her investigatory procedures without violating the hearsay rule. (People v. Jones (1992), 153 Ill. 2d 155, 159-60.) However, if the substance of the matter would go to the very essence of the offense, the testimony is hearsay. Jones, 153 Ill. 2d at 160.

The State further argues that the testimony was not offered to prove the truth of the matter asserted, but was offered to explain why the police officer arrested defendant. (See Malave, 230 Ill. App. 3d at 560-61.) This testimony was relevant to the charge of resisting arrest. However, the testimony also went to the very essence of the stolen vehicle offense, and it is possible that the jury considered the testimony for the truth of the matter asserted. Thus, the court should have given the jury a limiting instruction on the testimony. (See People v. Furby (1992), 228 Ill. App. 3d 1, 11.) Although defendant failed to request a limiting instruction, we will not find that defendant waived the issue, as the failure to give such an instruction can be plain error. Furby, 228 Ill. App. 3d at 10.

The State argues that any error in this regard was harmless beyond a reasonable doubt. The admission of hearsay is not reversible error if there is no reasonable probability that the jury would have acquitted the defendant if the hearsay testimony had been excluded (People v. West (1992), 234 Ill. App. 3d 578, 590), such as where properly admitted evidence proves the same matter (People v. Songer (1992), 229 Ill. App. 3d 901, 906), or there is overwhelming evidence of the defendant’s guilt (People v. Rice (1992), 234 Ill. App. 3d 12, 22). Such is the case here.

Defendant argues that there was no evidence that the vehicle he was driving was the same vehicle as the one listed in the title. Defendant reasons that without the hearsay testimony, the jury may have found that only the license plates were stolen and then affixed to another RX-7. This argument fails when compared with the totality of the properly admitted evidence.

Defendant stared at Officer Eschman when defendant drove past him. When Officer Hood asked defendant to return to the vehicle, defendant attempted to run into the house. Hood testified that he examined the ignition of the RX-7 and observed that the ignition had been hollowed out. A temporary ignition piece, with a nonstandard key in it, was inserted in the ignition. The State introduced a certified copy of the title to a gray Mazda RX-7, license number QA 7781, which showed that ownership of the car was transferred to State Farm Insurance Company on February 12, 1990. Ellen Massart testified that defendant did not have permission to possess the RX-7 on February 20, 1990. This circumstantial evidence overwhelmingly shows that the RX-7 was stolen when defendant possessed it, and defendant’s actions when confronted by the police officers indicate his consciousness of guilt. There is no reasonable probability that the jury would have found that only the license plates were stolen. We therefore conclude that the admission of the testimony without a limiting instruction was harmless beyond a reasonable doubt.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES J. STACK, a/k/a Alexander Nathan Fuller, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0531
    Argued March 23,1993.
    Opinion filed May 6,1993.

      Daniel D. Yuhas and Jeffrey D. Foust (argued), both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Eider man, and James Majors (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 27, 1992, following a jury trial in the circuit court of McLean County, defendant James J. Stack was convicted of the offense of unlawful possession of weapons (ammunition) by a convicted felon. (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1.1(a).) He was subsequently sentenced to a term of four years’ imprisonment.

On appeal, defendant maintains (1) the trial court erred in denying his motion to suppress two bullets seized from his vehicle by a police officer; and (2) the State failed to prove beyond a reasonable doubt that he committed the offense of unlawful possession of weapons by a felon. We affirm.

At a hearing on the motion to suppress, Bloomington police officer James Sutherland testified as follows: (1) on December 6, 1991, he was involved in the arrest of defendant and searched defendant’s vehicle “incident to the arrest”; (2) the driver’s side door was open, the officer looked in the front passenger window, and he discovered a small container with binoculars, a “regular” binocular case, a police scanner and two .22 caliber bullets on the seat; (3) the bullets were on the left side of the seat toward the back; (4) he seized the bullets, because of the possibility that there might be a gun; (5) defendant’s car was then towed to a secured lot; and (6) the inventory and tow were at the request of Officer Peter Avery, who made the arrest and left with defendant prior to the search. Sutherland testified that the reason he took charge of defendant’s car after his arrest was because “that’s normally the way the department does things. If one officer makes an arrest and is charged with the transportation of the defendant to the station, a second officer is called in to do an inventory search and do the tow.”

Officer Avery testified at the suppression hearing as follows: (1) on December 6, 1991, he and another officer were patrolling in his squad car, when the driver of another car drove around him and signaled for them to stop; (2) a woman, D.S., got out of the car and told the officers that a man had been following her car, harassing her, and he threatened to kill her; (3) she said the car that the man had been driving had just pulled into the parking lot of a nearby apartment building; (4) defendant had pulled into the parking lot and stopped, but the car was not parked; (5) the officer drove to the back of that building and approached the car as defendant exited from the driver’s side of the car and left the door open; and (6) defendant did not have a valid driver’s license, and the car was not registered to him.

Avery further testified that (1) after conversing with defendant about D.S., and her reasons for wanting him arrested, Avery placed defendant under arrest and put him in the squad car; (2) he told Officer Sutherland to have the car towed, because (a) they could not “secure” the car in the unlocked area, i.e., the parking lot of the apartment building and (b) the computer check had not shown defendant to be the registered owner; (3) the officers had no way to contact the registered owner to determine whether defendant had permission to possess the vehicle; and (4) defendant was initially arrested for disorderly conduct and driving with a suspended license. Avery testified that when they returned to the police station, a computer check revealed that defendant had a previous conviction in Texas for rape.

Defendant testified at the hearing that he told the police he had not been driving, but rather, a man named “Joe” had been driving and had left. He said he was being sarcastic in stating that someone else had been driving. He also stated that he did not, contrary to Avery’s testimony, tell Officer Avery that he did not know the woman who had made the complaint. Defendant was not questioned as to whether he was aware the bullets were in his car, or if they belonged to him. In addition, the State did not question defendant about his prior conviction.

The court, in denying the motion to suppress, indicated the search could not be supported by the “plain view” exception, and it was not a search incident to arrest. The court concluded, however, that because there was no identification to show the vehicle belonged to defendant, and the officers did not know if defendant had rightful possession of the vehicle, it could not be left in a private parking lot. The court determined the officers had a right to take the vehicle into custody, and they had a right to inventory the vehicle. The court found the search was proper on that basis.

Defendant contends the trial court erred in denying his motion to suppress, because the police had no reason to believe the car defendant was driving had been stolen, the car was parked on private property, and the property owners had not requested that defendant’s car be removed.

An “inventory search” of the contents of a car that has been impounded by the police has been upheld as part of what the Supreme Court has called “community caretaking functions.” (South Dakota v. Opperman (1976), 428 U.S. 364, 368, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3097.) These searches are permitted without a warrant to serve three strong governmental interests: (1) to protect the owner’s property while it remains in police custody; (2) to protect the police against claims or disputes over lost or stolen property; and (3) to protect the police from potential danger. Opperman, 428 U.S. at 369, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097.

The Opperman Court determined that an inventory search may be reasonable under the fourth amendment in light of the strong governmental interests and the diminished expectation of privacy in an automobile. The Court noted in Colorado v. Bertine (1987), 479 U.S. 367, 371-72, 93 L. Ed. 2d 739, 745-46, 107 S. Ct. 738, 741, that its previous cases accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody. The Bertine Court further noted that there was no showing the police had acted in bad faith or for the sole purpose of investigation.

We need not examine in further detail the application of the Opperman doctrine upon the facts here, nor do we need to examine the arguments presented by defendant to refute upholding the seizure of the bullets as the fruits of a proper inventory search. In People v. Williamson (1993), 241 Ill. App. 3d 574, 608 N.E.2d 943, this court held that introduction into evidence of written procedures for impounding vehicles required to be followed by a law enforcement agency whose officers make an inventory search is necessary to uphold an inventory search of those vehicles. No such evidence was presented here. The seizure of the bullets cannot be upheld on the basis they were the fruits of a proper inventory search.

Because the defendant had been transported from the scene of the arrest before Sutherland commenced his search of the vehicle, that search cannot be justified as a search incident to a lawful arrest. We agree with the circuit court in that regard. However, we disagree with the circuit court in its determination that use of the “plain view” doctrine is of no help in determining the propriety of Sutherland’s search of the vehicle.

While the vehicle searched was on private property when Sutherland made the search, he was properly there in aid of an officer making a proper arrest of defendant. Prior to entering the vehicle, he looked into the passenger’s side window and, according to testimony not disputed at the hearing on the motion to suppress, Sutherland saw two bullets on the driver’s seat. He was not looking for weapons before he saw the bullets. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66, 29 L. Ed. 2d 564, 582-83, 91 S. Ct. 2022, 2037-38.) This involved “no intrusion covered by the Fourth Amendment.” (1 W. LaFave, Search & Seizure §2.2(a), at 323 (2d ed. 1987) (hereinafter LaFave).) This was so even though Sutherland used a flashlight to illuminate the inside of the vehicle. (See LaFave at 329.) According to further undisputed testimony of Sutherland, he then entered the vehicle and searched for a gun which he thought was likely to be present if bullets were present. The presence of a bullet on the floorboard of an automobile has been held to create a reasonable indication of the presence of a gun in the vehicle. State v. Wright (1988), 104 Nev. 521, 523, 763 P.2d 49, 50.

The focus of defendant’s complaint with the use of the bullets to prove his guilt has been phrased in terms of the allegedly unreasonable nature of the search of the vehicle. We recognize that although the fact the bullets were in “plain view” aids in justifying the search, grounds for the seizure must also be shown. (Illinois v. Andreas (1983), 463 U.S. 765, 771, 77 L. Ed. 2d 1003, 1010, 103 S. Ct. 3319, 3324; LaFave at 324.) Here, the bullets had some evidentiary value in regard to proof of the seriousness of defendant’s alleged threats to kill D.S. The seizure was also supported by the promotion of the public safety by seizing these items which could be used to injure another. The relatively light invasion of the automobile by Sutherland, necessary to seize the bullets which were in plain view, was not an unreasonable search.

We conclude that the trial court properly denied the motion to suppress even though the grounds stated by the court must now fail under the recent decision in Williamson. The undisputed evidence proved, as a matter of law, that the search and seizure were justified.

We now turn to the question of the sufficiency of the proof of defendant’s guilt. In order to sustain a conviction under section 24—1.1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 24—1.1(a)), the State is required to prove defendant’s knowing possession of a prohibited firearm or ammunition and his prior felony conviction. (People v. Rangel (1987), 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 942.) Defendant contends the State did not show he knowingly possessed the bullets. He does not dispute that he had a felony conviction prior to the date of the incident.

Criminal possession may be actual or constructive, and where the possession is constructive, the State is required to establish defendant’s knowledge of the presence of the prohibited weapon or ammunition and his immediate and exclusive control over the area where it was found. (Rangel, 163 Ill. App. 3d at 739, 516 N.E.2d at 942.) In Rangel, the court noted:

“The element of knowledge may, and most often must, be proved by circumstantial evidence [citation]; and although mere presence in the vicinity of the contraband is insufficient to establish constructive possession, control over its location gives rise to such an inference which is not undermined by the presence of others in the vicinity.” Rangel, 163 Ill. App. 3d at 739, 516 N.E.2d at 942.

At defendant’s jury trial, Officer Avery testified to substantially the same course of events as he had at the suppression hearing but elaborated on the discussion he had with defendant concerning the ownership of the car. He said defendant indicated the car belonged to his deceased mother, and although there was no paperwork to support that allegation, Avery later learned that defendant was correct. Avery testified the car defendant had been driving had not been reported as stolen. He also said that he went through the car briefly before placing defendant in his squad car, but he did not see any bullets.

Officer Sutherland’s testimony at trial was also substantially the same as it had been at the suppression hearing. The bullets were introduced into evidence. Sutherland testified that he looked for a gun in the car but did not find one.

Defendant testified at trial as follows: (1) he knew that because of his past criminal record, he could not possess a gun or ammunition, and that he could be punished for doing so; (2) he was employed and had been dating D.S., a coemployee; (3) they were not dating at the time of his arrest, but he wanted to see her on that day, to find out why the relationship ended; (4) he had given the woman a set of keys to the car, and she refused to return them; (5) she had used the car in the 10 days prior to his arrest, and she could have used it that day without his knowledge or permission; (6) he had also given rides to people on the day of his arrest; (7) he did not see any bullets on the seat and was not aware they were there; (8) he did not put the bullets there; (9) he did not have a weapon; and (10) he admitted the other items found on the seat were his. He said he had told Officer Avery that “Joe” was driving, but he was being sarcastic and decided not to tell the officer that he meant to say “Joe Momma” was driving.

Defendant cites People v. Seibech (1986), 141 Ill. App. 3d 45, 489 N.E.2d 1138, where the defendant’s conviction for unlawful use of weapons was reversed because the State failed to prove defendant had knowledge of the presence of the firearm found on the floor behind the driver’s seat of defendant’s car. There, the court noted that “[knowledge on the part of an accused of the existence of a firearm within his possession may be inferred from circumstantial evidence.” (Seibech, 141 Ill. App. 3d at 48, 489 N.E.2d at 1141.) In addition, the court noted that “ordinarily one driving his own car with a firearm in it would be presumed to have knowing possession” of the firearm. (Seibech, 141 Ill. App. 3d at 49, 489 N.E.2d at 1141.) The court concluded, however, that the presumption could be effectively rebutted.

In Seibech, the defendant testified that he had driven two men home from a hunting area earlier on the day he was arrested. He said he did not know the rifle had been left in the car. One of the hunters testified at trial and corroborated the defendant’s testimony, stating that he had been in a hurry when defendant dropped him at his apartment, and in his haste, he forgot his gun. The court found this evidence plausible and since it was not impeached, the jury could not disregard the testimony. Seibech, 141 Ill. App. 3d at 49, 489 N.E.2d at 1141.

Defendant maintains here that a reasonable explanation for the presence of the bullets in his car is that they dropped out of the pocket of one of his previous passengers. However, he could not name the persons who had allegedly been passengers on that day, and he did not offer the testimony of any of those passengers to corroborate that theory.

In Rangel, the undisputed evidence showed that the car from which the weapon was removed was owned by defendant and that he was in possession of it for at least Viz hours before the weapon was retrieved by the police. According to the State’s witnesses, the weapon was in plain view on the floor of the car where defendant had been sitting just before he exited and was apprehended by police.

Here, defendant admitted he owned the car, the bullets were within his reach, and he presented no corroborating evidence to establish ownership of the bullets by someone else. In addition, Officer Sutherland testified the bullets were visible when he looked into the car from the passenger’s side window. This was sufficient to raise the presumption that defendant was in constructive possession of the contraband.

The jury determined that defendant was guilty based upon the evidence presented. The jury was in the best position to weigh the credibility of the witnesses and resolve any conflicts or inconsistencies in the testimony. There was no dispute that defendant had a prior felony conviction, he knew his possession of ammunition was prohibited, and he admitted the car was his. He also admitted ownership of the other items found on the seat in close proximity to the ammunition.

A criminal conviction will not be set aside unless the evidence, when viewed in the light most favorable to the prosecution, could not be found by any rational trier of fact to prove the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) The jury could reasonably have concluded from the evidence presented that defendant, a convicted felon, knowingly possessed the prohibited ammunition and was proved guilty of the offense beyond a reasonable doubt.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

KNECHT and COOK, JJ., concur.


author: JUSTICE LUND PRESIDING JUSTICE STEIGMANN,

text:
      In re MARRIAGE OF MAXINE KAPLAN, f/k/a Maxine Goldman, Petitioner-Appellant, and ROBERT H. GOLDMAN, Respondent-Appellee.
    Fourth District
    No. 4 — 92—0618
    Argued March 24,1993.
    Opinion filed May 6,1993.
    Rehearing denied June 7,1993.
    STEIGMANN, P.J., dissenting.
    Allen J. Oehlert (argued), of Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellant.
    Patrick J. O’Hara (argued), of Cavanagh & O’Hara, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The crux of this appeal is whether defendant Robert H. Goldman should be required to pay costs and reasonable attorney fees of petitioner Maxine K. Goldman, the prevailing party. We say yes. The facts are basically uncontested.

The marriage of Robert and Maxine was dissolved in January 1987. Brian, only child of the marriage, was born December 20, 1972. In March 1991, both parties agreed to an order modifying the dissolution judgment and part of the modifications provided:

“Plaintiff [(petitioner)] and Defendant [(respondent)] shall each pay one-half of the post-secondary expenses for BRIAN GOLDMAN in a program leading to a baccalaureate degree (or equivalent); said expenses shall include tuition, room and board, supplies, necessary travel, books, fees, and living expenses (including living expenses between school terms). The parties will encourage BRIAN GOLDMAN to have employment during summer vacations and to apply earnings from same to his living expenses. Each party shall promptly pay (within 30 days of presentment of a statement for said expenses) his or her share of said expenses by payment to the institution or another entity; payment may also be made, as appropriate, by payment from [respondent] to [petitioner] for payment of said expenses that [petitioner] has paid or has made arrangements to pay (copies of all statements or receipts shall be furnished by [petitioner] to [respondent]). (In this event, the parties shall cooperate in the preparation and filing of a suitable withholding order if a regular ‘stream’ of expense money is most suitably channelled through [respondent] to BRIAN GOLDMAN.) The parties concur in approving BRIAN GOLDMAN attending the California Maritime Academy; however, if Brian’s plans change or he is not accepted at the Academy, then [petitioner] and [respondent] shall consult with each other and BRIAN GOLDMAN on a different suitable institution of higher education. The consent of each party shall be required for BRIAN GOLDMAN to attend an institution other than the California Maritime Academy, but neither party may unreasonably withhold consent from his attending another institution; in the event a party’s consent is not given, this matter may be submitted to the Court for approval of the institution and a further order shall be entered mandating payment of one-half of the said education expenses by each party.”

At the time this modification was adopted, both Robert and Maxine knew of the existence of a trust created in 1980 by Robert’s mother. This trust provided, in pertinent part:

“The Trustee shall distribute to each of Settlor’s grandchild who survive her the sum of Ten Thousand Dollars ($10,000.00), provided, however, that as to Settlor’s grandson, Brian Harvey Goldman, if he survives Settlor and is less than twenty-one (21) years of age at the time of Settlor’s death, his legacy of Ten Thousand Dollars ($10,000.00) shall, instead of being paid to him, be held by the Trustee in trust for Brian Harvey Goldman until he attains the age of twenty-one (21) years *** at which time all property in trust shall be paid to him ***. During the continuation of said trust, if the income and means available to the said Brian Harvey Goldman are insufficient for his reasonable care, support and education, including, but not limited to, a college education if such is deemed desirable by the Trustee, the Trustee may from time to time pay him so much of the income, and if that be insufficient, then also so much of the principal,] as will, when added to such other income and means, be sufficient to provide him with such care, support and education.”

Pursuant to the March 1991 modified judgment of dissolution order, Robert and Maxine each became responsible for $4,609.50 of Brian’s 1991-92 academic-year expenses totaling $9,219. Maxine paid some of the education expenses directly to Brian’s school and, at Robert’s request, directly channeled $2,533 of her $4,609.50 through him. However, unknown to Maxine and Brian, Robert had engineered an arrangement whereby the trustee of Brian’s trust, a bank, would pay Brian’s expenses directly to the school. Brian’s trust paid $6,535 directly to the school for the first $6,535 of expenses incurred by Brian for his education during the 1991-92 academic year. Thus, payments from Brian’s trust covered obligations of both Robert and Maxine toward these expenses. Robert kept the $2,533 Maxine paid directly to him.

In March 1992, Brian received a tax letter from the trustee of his trust which informed him that his trust had made distributions on his behalf during the past year. This was the first time either Maxine or Brian learned that Brian’s trust, not respondent’s trust, had made payments for Brian’s college expenses. Also during this time period, a dispute arose over how much Robert should have paid for Brian’s living expenses. Thus, Maxine commenced a contempt proceeding against Robert in the trial court. Robert agreed in this proceeding to reimburse Brian’s trust, but the trial court was required to review the living-expense issue and the question of who was responsible for the attorney fees and costs expended by Maxine. On July 15, 1991, the trial court entered an order incorporating the reimbursement provisions and the following finding:

“4. That ROBERT GOLDMAN is not in contempt of the Judgment of Dissolution as modified by Order dated March 5, 1991, inasmuch as said Order does not specify the source of the payments for BRIAN’S educational expenses;
5. Based upon the evidence presented, a reasonable sum for living expenses for BRIAN is $180.00 per month and ROBERT GOLDMAN is ordered to pay one-half of said sum to BRIAN each month.”

The order of the court required Robert to repay the trust, together with interest and other charges. Payment of $90 per month for living expenses was ordered. The court denied an order of contempt, but prohibited use of Brian’s trust funds by Robert to pay Robert’s share of the school expenses. Each party was required to pay his or her own attorney fees.

Attorney Fees

The authority for post-high school and post-age-of-majority education expense comes from section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides, in relevant part:

“The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. The authority under this Section to make provision for education and maintenance extends not only to periods of college education or professional or other training after graduation from high school but also to any period during which a child of the parties is still attending high school, even though he or she attained the age of 18. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” Ill. Rev. Stat. 1991, ch. 40, par. 513.

The parties agreed as to the equal division of Brian’s post-high school education expenses and, in doing so, were aware of the Ada Goldman trust for the benefit of Brian. The financial resources of both parents were obviously considered, as were the child’s resources. If the Ada Goldman trust was to be involved, the agreement and order would have so provided. The suggestion that Robert could use Brian’s trust fund to pay Robert’s obligation for the education expenses is totally inconsistent with the provision of section 513 of the Act providing for payment “out of the property and income of either or both of [the] parents.” Ill. Rev. Stat. 1991, ch. 40, par. 513.

As stated, the modified education order was entered on March 9, 1991. Less than 10 weeks later, pursuant to requests from Robert, the trustee made payments for Brian’s education. In reviewing Robert’s actions, it is clear he never intended to comply with the March 9, 1991, order. He had advised Maxine that the complete payments were being made from his (Robert’s) trust, and he had the gall to request that Maxine pay her half of the college fees directly to him. She honored his request to the tune of $2,533. Not only did he not make the college education payments, but he increased his personal assets by $2,533.

The trial court held lack of contempt because the “Order does not specify the source of the payments.” This decision ignores the provisions of section 513 of the Act and the fact that if Robert’s share could be paid out of the trust, Maxine was entitled to the same benefit. The decision of the trial court was against the manifest weight of the evidence.

Section 508(b) of the Act provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” 111. Rev. Stat. 1991, ch. 40, par. 508(b).

As to the existence of cause or justification for Robert’s failure to pay his share, we must consider the modification provisions of section 510 of the Act, which provides, in relevant part:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” 111. Rev. Stat. 1991, ch. 40, par. 510.

If Robert’s financial condition had changed so that he was unable to pay his share of the school expenses, then his recourse was the court, not the wrongful use of his son’s trust funds. We conclude the facts require a finding that Robert’s actions were without cause or justification and that an award of attorney fees under section 508(b) of the Act was mandatory.

Living Expenses

The determination of Robert’s and Maxine’s shares of Brian’s living expenses was complicated because Brian lived with his mother in California. A factor necessarily considered was Brian’s employment, which resulted in income of approximately $6,500 per year. After considering the evidence presented to the trial court, we find the decision determining living expenses was not against the manifest weight of the evidence.

Conclusion

The denial of attorney fees is reversed, and the cause shall be remanded to the trial court for determination of those fees.

Reversed and remanded.

McCullough, J., concurs.

PRESIDING JUSTICE STEIGMANN,

dissenting:

Because the behavior of respondent Robert Goldman is so odious — after all, it is not every day that one can breach one’s fiduciary duty to both one’s mother and one’s son by performing the same reprehensible act — I find it distasteful to dissent. Yet, at the risk that my dissent be viewed as somehow supporting the outrageous behavior of Robert Goldman, I dissent nonetheless.

Although the majority opinion does a masterful job of constructing an argument showing that Robert Goldman violated an order of the court, careful analysis reveals that he did no such thing. In short, the trial court correctly found that Robert Goldman was not in contempt of the order the court entered March 5, 1991, because “said Order does not specify the source of the payments” Robert Goldman was to use for his son’s educational expenses. The question the majority opinion cannot answer and still adhere to its holding is the following: If Ada Goldman (Robert’s mother and the settlor of the trust in question) had been alive and had Robert asked her to pay Brian’s school directly for Brian’s educational expenses because Robert did not have the financial resources to make those payments, and if she in fact did so, would the majority still conclude that Robert was in contempt of court because “he had not made the payment ‘out of [his] property,’ ” as the majority claims section 513 of the Act requires? Or, in another hypothetical, if Robert Goldman had won the lottery and directed that some of his lottery proceeds be paid directly to the school to meet Brian’s educational expenses, would the majority similarly hold that this also was a violation of the payment order?

The answers to the above questions make clear that this court ought not second-guess the trial judge’s determination that Robert Goldman’s conduct — however odious — did not violate any orders of the court. Simply because this court finds that conduct reprehensible is not a sufficient reason to reverse. The trial court obviously did not like it much either, and Robert Goldman may well face further sanctions — possibly even criminal — for his abuse of the trust his mother established.

When properly understood, the court order placed half of the financial responsibility for Brian’s education on Robert Goldman. That order did not concern itself with the source of the funds Robert Goldman used to comply with the order’s terms, nor should it have. Indeed, in the typical dissolution case, the court and the parties are concerned that payment orders be complied with; usually, no one addresses (or cares in the slightest) how a party obtains the means to comply.

The court order in the present case meant that if Robert Goldman failed to take whatever steps were necessary to comply with his court-ordered obligation to ensure that half of Brian’s educational expenses were paid (somehow, by someone), then the blame for this failure would fall on Robert Goldman, regardless of the reason. Any fraud or crime Robert Goldman used to ensure that his court-ordered obligation was met should be addressed directly on its own, not obliquely through a distorted construction of the trial court’s orders.

Whatever the outcome in proceedings addressed directly to Robert Goldman’s conduct regarding Brian’s trust, the conclusion in the present case must be the same: because Robert Goldman did not violate any orders of the trial court in this dissolution proceeding, we must affirm the trial court’s order denying attorney fees under section 508(b) of the Act. I respectfully dissent from the majority’s failure to do so.