author: JUSTICE HAASE

text:
    DALE E. HABEN, Special Adm’r of the Estate of Nicholas E. Haben, Deceased, Plaintiff-Appellant, v. MARC R. ANDERSON et al., Defendants-Ap-pellees.
    Third District
    No. 3-91-0707
    Opinion filed June 26, 1992.
    Rehearing denied September 3, 1992.

      Strodel, Kingery & Durree, Associated, of Peoria (Robert C. Strodel, of counsel), for appellant.
    Marc R. Anderson, of Chicago, appellee pro se.

    Kent R. Schnack, of Schnack, Schnack & Cashman, of Quincy, for appel-lee John W. Bilenko.
    David B. Mueller, of Cassidy & Mueller, of Peoria, for appellee James A. Boyer.
    James L. Hafele and Cathy A. Stephens, both of Hafele, Thiemann & Carter, of Peoria, for appellee David J. Carey.
    Robert D. Jackson and Steven L. Pierson, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee Brian D. Donchez.
    Robert H. Jennetten and Jeanne H. Wysocki, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee Raymond A. Drew.

      Cornelius Thomas Ducey, Jr., of Ducey, Feder & Ducey, Ltd., of Belle-ville, for appellee Steve C. Kadlec.
    John C. Mulgrew, Jr., and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Anthony F. Kolovitz.
    James Patrick Murphy, of Flack, McRaven & Stephens, of Macomb, for appellee Chris McCracken.
    Robert C. Stoerzbach, of Barash, Stoerzbach & Henson, of Galesburg, for appellee Scott A. Rokita.
    Gary J. Bazydlo and Joshua G. Vincent, both of Hinshaw & Culbertson, of Chicago, and David E. Jones, of Hinshaw & Culbertson, of Peoria, for appellee Rian P. Sanders.
    Jonathan H. Barnard, of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellee Mark T. Molzer.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Dale E. Haben, brought this wrongful death action as special administrator of the estate of Nicholas E. Haben against the defendants, the members of the Lacrosse Club (the Club) at Western Illinois University. Nicholas Haben died on October 19, 1990, from acute alcohol intoxication. The plaintiff alleged that each of the defendants had been involved in “hazing” the decedent, pressuring him to drink, and causing his intoxication. Additionally, the plaintiff alleged that defendant Anthony F. Kolovitz negligently breached a voluntarily assumed duty to care for the decedent. The trial court granted the defendants’ motions to dismiss. The plaintiff appeals.

The plaintiffs complaint alleged that the decedent, Nicholas E. Haben, was an 18-year-old freshman at Western Illinois University in the fall of 1990. On October 18, 1990, Haben was a “rookie” in the Lacrosse Club, a recognized and sanctioned student activity at the university. The 12 defendants were all active members of the Club. Club membership was “a valued status.” On October 18, 1990, between 3 p.m. and 10:30 p.m., the defendants participated in the “initiation” of new recruits of the Club known as “rookies,” which included Haben.

It was alleged that during the initiation ceremony, the defendants caused or participated in causing various types and quantities of intoxicating beverages to be given and ingested by the rookie initiates of the Club. The rookies, including Haben, were required to engage in various strenuous physical activities and submit to acts intended to ridicule and degrade them, including smearing their bodies, faces, and hair with various food and other materials. These activities allegedly violated the Hazing Act (Ill. Rev. Stat., 1990 Supp., ch. 144, par. 220.9 et seq.) and university regulations. It was alleged that the hazing and drinking activities had been conducted by the Club members for a number of years and had become a “tradition of, and a de facto requirement for, membership in the Club,” and that the pressure to consume dangerous quantities of alcohol created a hazardous condition threatening the initiate’s physical welfare.

The plaintiffs complaint further alleged that, in violation of section 6 — 16(a) of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 131), the defendants caused and pressured Haben to consume excessive amounts of intoxicating liquor, and after knowing he was intoxicated, pressured and encouraged Haben to drink additional quantities of liquor.

The complaint also alleged that Haben became highly intoxicated and lost consciousness. He was carried to defendant Kolovitz’s dorm room, where, in Kolovitz’s presence, he was laid on the floor and then left alone. Kolovitz returned to the room on more than one occasion to check on Haben and heard him “gurgling.” Haben was discovered dead about 9 a.m., on October 19, 1990. He died from acute ethanol intoxication, possessing a blood-ethanol level in excess of .34.

The defendants filed motions to dismiss the plaintiff’s complaint for failure to state a cause of action. The trial court granted the defendants’ motions and dismissed the complaint, finding that a common law duty was not properly pleaded because the facts alleged did not fit the narrow exception announced in Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193. The trial court found that Quinn made it incumbent upon the plaintiff to plead that Haben was required to drink to intoxication to be initiated into the Club. The trial court also found that the plaintiff failed to allege facts establishing that defendant Kolovitz had voluntarily assumed a duty.

On appeal, the plaintiff first argues that the trial court erred in dismissing his complaint. He contends that he pleaded a proper cause of action under Quinn.

In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action upon which relief may be granted. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.) Moreover, all well-pleaded facts must be taken as true for purposes of judging the sufficiency of the complaint. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.

The elements of a negligence cause of action are a duty to exercise care, a breach of that duty, an injury proximately resulting from the breach, and damages. (McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 450 N.E.2d 5.) Whether a duty exists is a question of law and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365; Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.) In terms of foreseeability, the court will consider whether the risk of harm was reasonably foreseeable. Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.

Illinois courts have repeatedly held that common law negligence liability does not exist where a social host has provided liquor to a minor guest. (See Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 447 N.E.2d 561 (social host not liable when minor guest became intoxicated, drove car, and injured third party in vehicle collision); Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 572 N.E.2d 367 (social host who provided alcohol to minor not liable for minor’s death from acute alcohol intoxication); Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 478 N.E.2d 534 (social host who provided alcohol to minor not liable when intoxicated minor slipped on rug and injured himself).) With the exception of Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367, the appellate court has concluded that any change in Illinois law should be undertaken by the legislature. (See, e.g., Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 572 N.E.2d 367; Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 478 N.E.2d 534.) In carving an exception to the common law rule, the Cravens court carefully limited its holding to apply only where: (1) a social host has knowingly served alcohol and permitted the liquor to be served to youths under 18 years of age at the social host’s residence; (2) the social host permits the minors’ consumption to continue to the point of intoxication; and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle.

In Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193, the court was faced with the issue of whether a duty existed under circumstances similar to the case at bar. There, the plaintiff was a pledge of the defendant fraternity and was required to participate in the defendant’s initiation ceremony in order to become a member of the fraternity. At the time, the 18-year-old plaintiff was an inexperienced drinker. As part of the ceremony, the plaintiff was directed to drink a 40-ounce pitcher of beer without letting it leave his lips or until he vomited. Later, the plaintiff was brought to a tavern and directed to drink from an eight-ounce bottle of whiskey. Members of the fraternity then purchased more liquor for the pledges. As a result, the plaintiff became extremely intoxicated and suffered neurological damage.

In holding that the defendant fraternity owed a duty to the plaintiff, the Quinn court noted that it was drawing perilously close to the extensive case law prohibiting common law causes of action for negligently distributing alcohol. Nevertheless, the court concluded that the factual scenario before it was distinguishable from the social host-guest relationship cases. In reaching that determination, the court found it significant that the plaintiff was required to drink to intoxication in order to become a member of the fraternity. In narrowly construing the duty, the court held that a cause of action existed based on two factors. First, the plaintiff was required to drink. Therefore, the case was distinguishable from the social host-guest situation. Second, the legislature enacted a statute against hazing, indicating a social policy against embarrassing or endangering our youth through thoughtless or meaningless activity.

In the instant case, the plaintiff alleged that Club membership was a much valued status, that drinking was a de facto requirement for membership in the Club, and that the decedent was “pressured” to drink.

Under the circumstances, we find that the present case is similar to Quinn and that the defendants owed the plaintiff’s decedent a duty to act reasonably to protect him. Recognizing a cause of action in such a situation is consistent with the policy against embarrassing or endangering our youth through thoughtless or meaningless activity. Here, it was reasonably foreseeable and likely that injury could result from consuming such large amounts of alcohol as part of an initiation ceremony of a school club held in high esteem.

The defendants argue that plaintiff failed to allege that the decedent was required to drink and that Quinn did not recognize a cause of action for every 18-year-old who feels pressured to drink. In support of their position, the defendants rely on Goodknight v. Piraino (1990), 197 III. App. 3d 319, 554 N.E.2d 1.

In Goodknight, the 18-year-old plaintiff attended a Valentine’s Day party promoted by a municipality and held in one of its buildings. At the party, liquor was sold and the plaintiff was coerced into drinking by her male companion. The plaintiff argued that the dictatorial and coercive behavior of those who surrounded her, combined with the municipality’s presence and promotion of drinking, imposed a “requirement” she consume the liquor, just as the fraternity required the plaintiff to drink in Quinn. The Goodknight court rejected the argument, noting that in Quinn the cause of action was based on two factors: (1) the plaintiff was required to drink; and (2) the legislature enacted a statute against hazing.

We find that the defendants’ reliance on Goodknight is misplaced. While we agree that Quinn did not recognize a cause of action for every 18-year-old who feels pressured to drink, we note that Goodknight did not involve the hazing statute or an allegation that drinking excessive amounts of alcohol was a de facto requirement for membership in a school-related club. We find that the instant plaintiff’s allegation of a de facto requirement for drinking was sufficient to satisfy the Quinn standard. We perceive little difference between a formal requirement for drinking and a de facto requirement that had come into existence through years of tradition. If both the candidate for initiation and the persons performing the initiation believe that drinking is required, it makes little difference whether that requirement is formal or defacto.

The complaint alleged that membership in the Club was a much valued status. If such great pressure was applied to the plaintiff to comply with the Club’s defacto membership “qualifications,” he may have been blinded to the dangers he was facing. In other words, his will to drink or not drink may have been overcome by the requirement to achieve the much valued status and by the pressure that he was receiving. Whether drinking was actually a de facto requirement for membership, whether the plaintiff actually consumed excessive amounts of alcohol because of a de facto requirement and because of the intense pressure that he was under, and whether his will to make a conscious decision about the amount of alcohol he consumed was actually overborne are questions for the trier of fact to resolve. As the Quinn court noted, “[t]o the extent that plaintiff acted willingly, liability can be transferred to him under principles of comparative negligence.” Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 237, 507 N.E.2d 1193, 1197.

The case at bar is also distinguishable from our recent pronouncement in Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 572 N.E.2d 367, where we found that no duty existed. There, the defendant purchased liquor for the plaintiff’s decedent, a minor. The two young men, along with four others, consumed the alcoholic beverages while driving about the City of Ottawa, Illinois. After drinking a large amount of whiskey, the decedent became intoxicated and unconscious in the back of the car, and later died of acute alcohol intoxication. Estate of Ritchie did not involve a defacto requirement for drinking or a violation of a statute against hazing.

The defendants argue that the Hazing Act is unconstitutional and therefore the plaintiff’s reliance upon it is erroneous.

The defendants’ argument must be rejected. The Illinois Supreme Court recently found that the Hazing Act was not unconstitutional. (People v. Anderson (1992), 148 Ill. 2d 15.) Furthermore, the Anderson court cited the Quinn decision with approval.

The defendants further argue that the Quinn standard only applies to fraternities and sororities and not to the individual members. They contend that it was incumbent upon the plaintiff to sue the Lacrosse Club and not the individual members.

We find that the defendants’ argument is meritless. The issue was not raised in Quinn, and we find nothing in that decision necessarily limiting its holding to organizations. Clearly, the Hazing Act does not differentiate between individual members of an organization and the organization itself. Likewise, an individual is liable for his or her tor-tious conduct even if the organization is also liable on a respondeat superior theory.

Therefore, we hold that the trial court erred in dismissing plaintiff’s cause of action because we find that it is sufficient to state a cause of action under the Quinn case if it is alleged that there was a de facto requirement to consume alcohol for membership in an organization and that there was a violation of the Hazing Act.

The plaintiff next argues that the trial court erroneously dismissed the count of his complaint alleging that Kolovitz voluntarily assumed a duty to care for the decedent.

We agree. It was alleged that the defendants owed a duty to the decedent to act reasonably for his protection. It was further alleged that defendant Kolovitz allowed the decedent to be placed on his floor unconscious. He then checked on him during the night and heard him gurgling. For the purposes of a motion to dismiss, all well-pleaded facts must be accepted as true. The trier of fact could conclude that: (1) Kolovitz placed the decedent in peril through participation in illegal hazing; (2) he allowed him to be placed on the floor of his dormitory room; (3) he assumed a duty to care for the decedent by checking on him during the night; and (4) he did not act reasonably to prevent harm to the decedent after allowing him to be placed on the floor of his room unconscious and after hearing gurgling sounds when checking on him.

Because we have found herein that the cause of action pleaded adequately states a cause of action under the Quinn case, it is unnecessary for us to rule on plaintiff’s argument that he can state a prima facie cause of action by alleging either a violation of the Hazing Act or the Liquor Control Act. Regarding the Hazing Act alone, we are unable to rule based on the pleadings presented whether or not a violation of that act alone would give rise to a cause of action. Regarding the Dramshop Act violation, we note that it is well settled that in adopting the Dramshop Act, the legislature preempted the field of liability relating to alcohol. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153; Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 447 N.E.2d 561.) Turning to the alleged violation of university regulations, we note that a legal duty is not normally established through rules and regulations of a university. Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 III. App. 3d 231, 507 N.E.2d 1193.

For the reasons stated, we reverse the decision of the circuit court of McDonough County which dismissed the plaintiffs complaint. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    KAREN P. AULT, Plaintiff-Appellant, v. C.C. SERVICES, INC., Defendant-Appellee.
    Third District
    No. 3—91—0928
    Opinion filed July 17, 1992.
    Rehearing denied September 3,1992.
    C. Don Weston, of Macomb, for appellant.
    Ronald Henson, of Barash, Stoerzbach & Henson, of Galesburg, and Kirk R. Ruthenberg, of Sonnenschein, Nath & Rosenthal, of Washington, D.C. (Amy L. Bess, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Karen P. Ault, filed a complaint alleging fraud and deceit on the part of the defendant, C.C. Services, Inc. The defendant filed a motion to dismiss the complaint for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615). The court granted the motion, dismissing the complaint with prejudice. The plaintiff subsequently filed motions to vacate the dismissal and for leave to amend the complaint. These motions were denied. Plaintiff appeals. We affirm.

This case arises solely on the pleadings. Consequently, all well-pleaded facts in the complaint are deemed to be true. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

The original complaint alleged the defendant is an Illinois corporation acting as an agent for several insurance companies. The plaintiff alleged in her complaint that she was fraudulently induced into entering into a “Trainee Agents’ Agreement” with the defendant. According to the complaint, from the late summer of 1986 up until March 18, 1987, certain agents of the defendant indicated to her that another employee, Mark DeSelms, would be terminated and that the plaintiff would be assigned his accounts. These accounts were for people residing in the Village of Roseville and certain unnamed townships in the southern part of Warren County.

The plaintiff’s complaint further alleged the defendant failed to terminate the employment of Mark DeSelms and did not reassign his accounts. The complaint alleged the misrepresentations were knowingly false in that the defendant did not intend to terminate Mark De-Selms or transfer the accounts to the plaintiff. The complaint claimed the plaintiff relied to her detriment on the defendant’s false promises, causing her $465,000 in damages. This amount allegedly represents plaintiff’s lost income and other benefits.

The trial court dismissed with prejudice the plaintiff’s complaint. The court found the alleged statements made by agents of the defendant were statements of future intent rather than statements of present or preexisting facts and, therefore, were insufficient to state a cause of action in fraud. The court also noted that the plaintiff had not alleged that the misrepresentations by the defendant were part of a scheme to defraud her.

The plaintiff’s subsequent motion to vacate was based on her assertion that in Illinois a scheme to defraud does not have to be pleaded in order to state a cause of action for promissory fraud. The plaintiff proffered a two-count amended complaint that was substantially similar to the original complaint; however, the amended complaint included the names of the agents who allegedly made the misrepresentations to her. Additionally, count II of the amended complaint alleged the representations and promises of the defendant were part of a scheme to defraud the plaintiff.

The court denied the plaintiff’s motion to vacate on the grounds that an action for promissory fraud in Illinois has to include well-pleaded allegations that the promises or representations of the defendant were part of a scheme to defraud the plaintiff. The court also found that the proffered amended complaint did not cure the defects of the original complaint.

Plaintiff asserts on appeal that she has properly asserted a cause of action for fraud under Illinois law.

The standard of review on appeal from a grant of a motion to dismiss a complaint is whether the complaint alleged facts which sufficiently state a cause of action. Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App. 3d 1052, 581 N.E.2d 423.

To state a cause of action for fraud, a plaintiff must allege the following elements: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) made to induce the other party to act; (4) action by the other party in justifiable reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (H P I Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) These elements of fraud must be pled with particularity, specificity, and certainty. Trautman v. Knights of Columbus (1984), 121 Ill. App. 3d 911, 460 N.E.2d 350.

Generally, under Illinois law there is no action for promissory fraud, meaning that the alleged misrepresentations must be statements of present or preexisting facts, and not statements of future intent or conduct. See H P I Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672; Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

In the instant case, the complaint claimed agents of the defendant allegedly told the plaintiff another employee was to be terminated and his accounts reassigned to her. We find the alleged misrepresentations in the instant case concern future intentions or conduct on the part of the defendant. Because plaintiff has alleged broken promises by the defendant rather than material misstatements of fact, we find the original complaint failed to allege material misrepresentation of preexisting or present facts. Therefore, the original complaint failed to state a cause of action for fraud, and the trial court properly granted the defendant’s motion to dismiss and properly denied the plaintiff’s motion to vacate.

The plaintiff contends count II of the proffered amended complaint properly alleged the misrepresentations were part of a scheme to accomplish a fraud, and that the trial court erred in denying the plaintiff’s motion to file her amended complaint. She contends the allegations in count II are sufficient to fall within the recognized exception to the general rule against promissory fraud actions.

In Roda v. Berko (1948), 401 Ill. 335, 340, 81 N.E.2d 912, 915, the Illinois Supreme Court stated: “[I]n cases where the false promise or representation of intention or of future conduct is the scheme or device to accomplish the fraud and thereby cheat and defraud another of his property, equity will right the wrong by restoring the parties to the positions they occupied before the fraud was committed.”

Under the Roda exception, promises are actionable if the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

Recently, in H P I Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672, the Illinois Supreme Court held the plaintiff in that case had sufficiently stated a cause of action alleging a scheme or device to accomplish an alleged fraud. In H P I Health Care, the complaint alleged the defendants employed a scheme of repeated and numerous knowingly false promises and representations that the defendant hospital would be able to pay amounts due and owing under the terms of a pharmaceutical services agreement. The complaint was detailed and specific, listing each of the exact promises made to the plaintiff and the dates on which each of these promises were made. The court found the specific factual allegations were sufficient to support the complaint’s conclusion that the defendants employed a scheme.

In the instant case, the plaintiff’s amended complaint was not detailed and specific, but merely alleged that between late summer of 1986 and March 18, 1987, Billy Ray Wills and Michael Stenger, acting as agents of the defendant, represented to the plaintiff, with the intent to induce the plaintiff into entering into a contract, that another employee would be terminated and she would be assigned his accounts. We find the plaintiff has not set out the kind of specific factual allegations that would support an inference that the defendant had participated in a scheme to defraud her. The plaintiff’s allegations of a scheme contained in count II of the amended complaint are in the nature of a legal conclusion rather than a factual allegation. Legal conclusions unsupported by allegations of specific facts are insufficient to state a cause of action. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) Therefore, the court was correct in not allowing the amended complaint.

For the above reasons, the judgment of the circuit court of Warren County is affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellee, v. HIRAM ANDERSON et al., Defendants-Appellants.
    Third District
    Nos. 3—91—0727, 3—91—0783 cons.
    Opinion filed July 29, 1992.

      Glenn Seiden & Associates, of Chicago (Glenn Seiden, of counsel), for appellant Hiram Anderson.
    Sharon G. Kramer, of Chicago, for appellant Linda Anderson.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Mark E. Wilson, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Hiram Anderson, was indicted by the State for medicaid fraud and other crimes. Shortly prior to his indictment, Anderson transferred to his wife, Linda Anderson, his beneficial interest in the couple’s marital residence. Although the criminal charges were ultimately dismissed, the State of Illinois obtained a civil judgment against Anderson for $2,136,360. The State then brought the present action seeking to set aside the transfer of Anderson’s interest in the marital residence as a “fraudulent conveyance.” The trial court ruled in favor of the State and ordered Anderson’s one-half interest in the home be applied to satisfy the civil award. Both Hiram and Linda Anderson appeal.

Hiram Anderson (Anderson) is a pharmacist and owns a pharmacy in Cook County, Illinois. On November 16, 1983, he was served with a grand jury subpoena commanding him to appear before the Cook County grand jury. The subpoena also commanded Anderson to produce his State and Federal tax returns for the years 1981 and 1982. The subpoena states that the evidence sought relates to “an investigation into possible thefts from the Illinois Medicaid Program.” Anderson failed to appear on the date commanded, and the State filed a petition for a rule to show cause. The petition stated that the grand jury was investigating possible thefts from the Illinois Medicaid Program and “that the Respondent, HIRAM ANDERSON, is a target defendant of that investigation.” Anderson ultimately complied with the subpoena and was indicted by the grand jury on July 11,1984.

On June 21, 1984, Anderson transferred to his wife 100% interest in the couple’s marital residence. According to the wife, she discovered that her husband had been having an affair and had fathered two children with another woman. At the behest of her sister and other family members, the wife agreed not to divorce Anderson only if he transferred to her total ownership of the house. The wife testified that the transfer was intended to prevent Anderson from mortgaging the property without her consent. Prior to that transfer, title to the couple’s home was held in Anderson’s name alone.

In late 1985, the State dropped the criminal charges against Anderson. In July of 1987, the State instituted a civil suit against him and obtained a civil judgment of over $2 million. By that time, Anderson had transferred many of his assets to family members and lacked the funds to satisfy the judgment. In March of 1989, the State filed the present action seeking to set aside the transfer of Anderson’s interest in the marital residence. The State contended that the transfer amounted to a “fraudulent conveyance.” The trial court conducted a hearing on the matter and ruled that the transfer had been fraudulent. The trial court ruled that the wife possessed a one-half interest in the property and also awarded her a $25,000 special equity interest. The balance the court ruled was properly the property of the State of Illinois. Both Hiram and Linda Anderson appeal.

The question presented to this court is whether the trial court abused its discretion in ruling that Hiram Anderson fraudulently conveyed to his wife his interest in the couple’s marital residence.

In order to establish that a conveyance is fraudulent in law, three elements must be present: (1) there must be a transfer made for no or inadequate consideration; (2) there must be existing or contemplated indebtedness against the transferor; and (3) it must appear that the transferor did not retain sufficient property to pay his indebtedness. (Gendron v. Chicago & North Western Transportation Co. (1990), 139 Ill. 2d 422, 438, 564 N.E.2d 1207, 1215.) In determining whether a transfer meets the above criteria, the law establishes certain presumptions. Where a husband makes a voluntary conveyance to his wife and afterward becomes insolvent, fraud is presumed and the burden of proof is on him to disprove the implication of fraud as to creditors at the time of making the conveyance. Robertson v. Robertson (1984), 123 Ill. App. 3d 323, 335, 462 N.E.2d 712.

According to Anderson and his wife, (1) the wife’s decision not to divorce Anderson constituted adequate consideration for the transfer; (2) Anderson did not contemplate at the time of the transfer that a civil judgment could be rendered against him; and (3) the trial court erred in rejecting the wife’s and Anderson’s unrebutted testimony regarding the above.

At trial, Anderson, his wife and her sister all testified that absent the conveyance of the house, dissolution of marriage was eminent. Anderson also testified that he did not contemplate at the time of the conveyance that a civil suit was even a possibility. The State did not offer testimony in opposition. Both defendants argue, with citation to authority, that the court was bound to accept as true their unrebutted testimony absent a finding that the testimony was “contrary to the laws of nature or universal human experience *** so incredible so as to be inherently unbelievable.”

They are only partly correct. In Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493, the court recited the correct and entire ruling concerning unrebutted testimony.

“A jury cannot disregard uncontradicted testimony unless it is inherently unbelievable. [Citation.] However, if the testimony of a witness is contradicted by other testimony or circumstances, or impeached, then the jury decides the credibility and weight afforded such testimony.” (Emphasis added.) 200 Ill. App. 3d at 12.

In the case at bar, there are several circumstances in the record from which the trial court could conclude that the testimony of the witnesses was contradicted. On November 16, 1983, Anderson was served with a grand jury subpoena commanding him to appear before the Cook County grand jury. Subsequently, there was a petition for a rule to show cause which stated that the grand jury was investigating possible thefts from the Illinois Medicaid Program and “that the respondent, Hiram Anderson, is a target defendant of that investigation.” On June 21, 1984, Anderson transferred to his wife 100% interest in the couple’s marital residence. On July 11, 1984, Anderson complied with the subpoena and was indicted by the grand jury. According to the defendant and his wife, the conveyance had nothing to do with the Cook County subpoena. However, the trial court, as the trier of fact in this case, was not required to accept the defendant’s testimony in the face of compelling circumstantial evidence to the contrary. Circumstantial evidence is the proof of facts or circumstances which give rise to an inference of other facts. In this case the circumstances were such that the trial court could well have derived an inference from them that the transfer was done in fraud of the defendant’s creditors. Although the trial court was certainly free to accept the defendant’s story, it was not bound to do so. The circumstances surrounding the transfer certainly call into question the validity of the transfer.

The circumstances involved in this case having tended to contradict the defendant’s testimony, it was up to the trier of fact to determine the credibility and weight to be afforded the testimony. The court obviously rejected the defendant’s proffered testimony, and we cannot say that the court’s ruling is against the manifest weight of the evidence.

The other issue raised in this appeal relates to the trial court’s division of the proceeds of the sale of the property. The court ordered that the proceeds would be applied to the outstanding judgment except that Linda Anderson would receive a special equity exemption of $25,000, a homestead exemption and 50% of the remainder. Anderson argues for a different property division. Appellants do not cite any authority as to why the trial court erred by ordering the particular property division. Under Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), a party who fails to cite authority in support of an argument is deemed to have waived that argument. Accordingly, we find that appellant Linda Anderson has waived her argument regarding the distribution order.

Even if appellant had not waived this argument, a review of the record in this case shows that the trial court’s method of distribution was not erroneous. Section 12 — 912 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 912) provides that homestead exemptions are taken out of the proceeds of a judgment sale before the proceeds are applied to the judgment. Special equity exemptions, likewise, must be taken out of the proceeds of a sale before division of the balance of the proceeds. Ill. Rev. Stat. 1989, ch. 110, par. 12— 1001.

We are of the opinion that the trial court’s division comports with existing Illinois law and is not against the manifest weight of the evidence and should be affirmed.

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

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    EDWARD SKOLEK et al., Plaintiffs-Appellees, v. UTICA GRADE SCHOOL DISTRICT No. 135, Defendant-Appellant (La Salle County et al., Defendants).
    Third District
    No. 3—91—0976
    Opinion filed August 4, 1992.
    John A. Relias, of Yedder, Price, Kaufman & Kammholz, of Chicago (C. Elizabeth Belmont, of counsel), for appellant.
    White, Marsh, Anderson, Howarter, Brusatte & Vickers, of Ottawa (James L. Brusatte, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiffs filed a petition with the La Salle County Regional Board of School Trustees (Regional Board) to detach and annex real estate. The plaintiffs sought the Regional Board’s approval to detach their real estate from the Utica Grade School District No. 135 (Utica) and to annex it to the Waltham Grade School District No. 185 (Wal-tham). The Regional Board denied both the plaintiffs’ petition and their petition for rehearing. The La Salle County circuit court reversed. The circuit court found that the Regional Board’s determination was against the manifest weight of the evidence. Utica appeals. We affirm because we agree with the findings of the circuit court.

The plaintiffs, Edward and Jane Skolek, have two small children. Emily, age six, was born on April 10, 1986, and attended Utica kindergarten last year. Justin, age five, was born on August 7, 1987, and will be attending school this year.

On March 19, 1991, the Skoleks filed their petition with the Regional Board to detach and annex their real estate. Their major concern is for the safety of their small children, who must travel to Utica down a long, narrow, steep, and declining road. This road has no sidewalks and passes down into an industrial area and across railroad tracks. Utica provides no bus service for the Skolek children. The Skoleks live at the very edge of Utica. Waltham provides bus service which goes immediately by the Skoleks’ home. All of the Skoleks’ immediate neighbors attend school at Waltham. The Skolek property contains 13.3 acres and is part of the rural area located north and outside of the village limits of Utica. The Skoleks have lived there the past three years.

The plaintiffs’ petition did not challenge the quality of education offered by Utica. Also, the petition did not allege that the Skolek children would receive a better education at Waltham. The quality of education offered by the two school districts is not an issue in this appeal.

Plaintiffs Bernard and Deloris Hettel live on 28.67 acres in the rural area adjoining the north side of the Skolek property. The Hettels no longer have any school-aged children. They joined the petition at the Skoleks’ request and are nominal plaintiffs. However, the Hettels share the Skoleks’ concern for the safety of the small children.

In 1990, the Skoleks paid $372.12 in real estate taxes to Utica. That same year, the Hettels paid Utica $460.10 in real estate taxes. Utica does not claim the loss of plaintiffs’ real estate taxes would affect the quality of their educational system. Therefore, Utica’s loss of income is not an issue in this appeal.

On April 1, 1991, the plaintiffs presented their petition to the Regional Board at a public hearing. Jane Skolek testified that she works Monday, Tuesday, and Thursday from 8 a.m. to 4:30 p.m. in the business office at Ottawa Community Hospital. She leaves for work around 7:40 a.m. and arrives home at approximately 5 p.m. Jane testified that her husband, Edward Skolek, works a swing shift for Illinois Cement Company. She said that his work schedule changes weekly and he leaves for work at various times of the day. Jane testified that Utica opens its school at 8:30 a.m. Therefore, because of their work schedules, the Skoleks would be unable to transport their children to and from Utica.

Jane testified that the children would have to walk down a narrow, steep highway with no sidewalks to get to Utica. She noted that this road also passes over railroad tracks and through an industrial area used by heavy trucks. She said that the children’s unsupervised one-way trip to Utica would be approximately one-half to three-quarters of a mile. Also, Jane indicated that no one would be home on most days when Emily returned from school. All of these safety hazards cause the Skoleks great concern.

James Beverage, Utica’s superintendent, was the only witness to testify in opposition to the petition. He testified, “I can understand the situation that this couple puts [sic] themselves into.” He also admitted that Utica had no bus service for the Skolek children. Beverage commented regarding the hill by saying, “Now, as far as the hill and safety — um—there is a tract there.” Later, he said, “but I do understand with their situation about the hill.”

Beverage’s opposition to plaintiffs’ petition was based solely on his concern, as a first-year superintendent, that he was afraid of setting precedent. He said, “And I point out that because if this is a situation that is involved, then we will have many petitions coming in here based solely on a reduced tax rate that person may be getting in one tax situation as in another.” Beverage presented no testimony to contradict the Skoleks’ safety concern.

Jane Skolek also testified regarding Utica’s school lunch program. She noted that most of Utica’s school children eat their noon lunch at home. This is because almost all of the students live in the Village of Utica, which is a short distance from the school. Beverage acknowledged this fact. However, Beverage did note that Utica has a minimal lunch program used by about 30 to 40 students, who eat their lunch under supervision at the school. If the Skolek children eat lunch at home, like the majority of Utica’s students, then they would be compelled to cross the railroad tracks and travel the dangerous road two more times each school day. However, based on all the circumstances, the Skolek children will be unable to go home to eat lunch.

Phyllis Mertes testified that she has been Emily and Justin Sko-lek’s daily baby-sitter for the past three years. Phyllis says Emily and Justin are comfortable in her home environment and are best friends with her two children, Maria and Eric. Phyllis lives in the Waltham district about V-lz miles from the Skoleks. The Waltham school bus stops in front of her home. Phyllis testified that she could watch Emily and Justin each morning and afternoon while the Skoleks are working. Her testimony indicated that if the petition was granted, Emily would catch the Waltham bus at Phyllis’ home. Also, the Wal-tham bus would drop Emily off at Phyllis’ home after school. The testimony indicated that until Justin begins school, Phyllis will continue to baby-sit him. If the petition was granted, Phyllis stated that Justin’s school schedule would be the same as Emily’s.

Jane Skolek also testified that most of her children’s friends attend Waltham. She said they have no baby-sitters or close friends in Utica. Before moving to their current home, the Skoleks lived for five years in Seneca Manor, which is located next to Utica in the Waltham district.

On April 29, 1991, the Regional Board, without explanation, concluded “that it is in the best interest of the school districts and of the educational welfare of the pupils affected hereby that such change in the boundaries be denied.”

On May 9, 1991, plaintiffs filed a petition for rehearing with the Regional Board. On June 19, 1991, the Regional Board heard the plaintiffs’ arguments in support of their petition for rehearing. The Regional Board denied the petition for rehearing without comment.

On June 28, 1991, the plaintiffs filed a complaint for administrative review in the circuit court of La Salle County. The plaintiffs alleged that the decision of the Regional Board was against the manifest weight of the evidence. Utica responded by arguing that the plaintiffs had failed to meet their burden of proof, and therefore, the decision of the Regional Board should be affirmed.

The circuit court reversed the Regional Board’s decision by finding the “decision below was against the manifest weight of the evidence and that the petitioners met their burden below.” We agree.

Section 7 — 6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 7 — 6) sets forth the standards to be considered by the Regional Board in determining whether to permit a change in school boundaries. In pertinent part, the statute reads as follows:

“The *** boards of school trustees *** shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted ***.” Ill. Rev. Stat. 1989, ch. 122, par. 7-6.

It is the function of a regional board of school trustees and not a reviewing court to make findings of fact. (School District No. 79 v. County Board of School Trustees (1954), 4 Ill. 2d 533, 123 N.E.2d 475.) A reviewing court will not set aside a regional board’s determination unless it is contrary to the manifest weight of the evidence. Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240.

Our scope of review extends to all questions of law and fact presented by the record, but the factual findings of the administrative agency are held to be prima facie true and correct. (Zejmowicz v. County Board of School Trustees (1971), 133 Ill. App. 2d 735, 272 N.E.2d 783.) Our supreme court has said, however, that this rule does not relieve a reviewing court of its duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact. Carver v. Bond/Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 586 N.E.2d 1273.

The supreme court has interpreted section 7 — 6 of the School Code to mean that petitions for detachment and annexation should be granted only where the overall benefit to the annexing district and the detachment area clearly outweighs the resulting detriment to the losing district and the surrounding community as a whole. Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 145 N.E.2d 736.

Very recently, our supreme court elaborated on how the regional boards should apply the benefit-detriment test set forth in Oakdale. The court, on January 30,1992, in Carver, stated as follows:

“In applying this benefit-detriment test, regional boards, and the courts reviewing their decisions, are to consider differences between school facilities and curricula, the distances from the petitioners’ homes to the respective schools, the effect detachment would have on the ability of either district to meet State standards of recognition, and the impact of the proposed boundary change on the tax revenues of both districts. [Citation.] They also may consider the 'whole child’ and ‘community of interest’ factors: the identification of the petitioning territory with the district to which annexation is sought, and the corresponding likelihood of participation in school and extracurricular activities. [Citation.] Although the personal desires of the petitioning parents may be taken into account, more than personal preference is needed to support a change in school district boundaries. [Citations.]” Carver, 146 Ill. 2d at 356, 586 N.E.2d at 1277.

The plaintiffs introduced no evidence before the Regional Board regarding the following factors: (1) the differences between school facilities and curricula; (2) the effect detachment would have upon the ability of either district to meet State standards of recognition; and (3) the impact the proposed boundary changes would have on the tax revenues of each district. However, we note from the record that Uti-ca’s tax loss would have no effect on the district. For our inquiry, we believe these factors are unnecessary and therefore we will not address them.

It is clear from the record that the Regional Board did not properly apply the benefit-detriment test stated in Carver. The Regional Board clearly ignored the compelling safety hazard that the hill poses to the Skolek children. Also, we find that the Regional Board has not properly considered the “whole child” and “community of interest” factors in light of the evidence the plaintiffs presented.

The record is uncontradicted that the Skoleks’ community of interest lies in Waltham. The location of the Skoleks’ rural property is contiguous with Waltham. It is in Waltham where the Skoleks find all their friends, the children’s baby-sitter, and the Waltham school bus, which is absolutely necessary for the safety of Emily and Justin. The Skoleks’ contacts with Utica are minimal. The children’s natural community center is in rural Waltham, which mirrors their own rural setting.

Detachment of the plaintiffs’ property will not harm Utica’s tax base. Detachment, in fact, will make the Utica boundary more compact by removing the plaintiffs’ rural island. The annexation of plaintiffs’ property to Waltham will cause the boundary lines to be more uniform and compact.

Due to the Skoleks’ ties with Waltham, there is a greater likelihood that Emily and Justin will participate in academic and extracurricular activities at Waltham to a far greater extent than if they attend Utica. The comradeship of being involved in school with close friends should facilitate participation in sports and other extracurricular activities. If a child attends a school in his natural community, it enhances not only his educational opportunity but encourages his participation in social and extracurricular activities that figure importantly in the “whole child.” School District No. 106 v. County Board of School Trustees (1964), 48 Ill. App. 2d 158, 198 N.E.2d 164.

The Skolek children should increase their school participation at Waltham through the use of safe bus transportation. This clearly will give the children and their parents the peace of mind which should improve the children’s educational opportunities and nurture development of the “whole child.”

The benefit to be derived from annexing the plaintiffs’ property to Waltham is great. The detriment to Utica is slight. Superintendent Beverage’s only concern was that detachment would set a precedent. We doubt that under these unique circumstances any precedent will be set in Utica.

Even though the Skoleks’ personal preference is to be transferred to Waltham, it is understood that their preference cannot alone support the transfer of their property. However, there was sufficient evidence established to support their requested annexation and detachment petition. We find the plaintiffs met their burden of proof before the Regional Board.

Accordingly, we hold that the determination of the Regional Board denying plaintiffs’ petition was against the manifest weight of the evidence. The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYAN S. LAWSON, Defendant-Appellant.
    Fourth District
    No. 4—91—0805
    Opinion filed June 30, 1992.

      Frederick P. Erickson and Thomas E. Griffith, both of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial, defendant was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) in the circuit court of Macon County and sentenced to 50 years’ imprisonment. Defendant appeals his conviction and sentence as well as denial of his supplemental post-trial motion for a new trial based on newly discovered evidence. Defendant alleges (1) the victim’s dying declaration was improperly admitted; (2) evidence of a prior shooting was improperly admitted; (3) he was deprived of a fair trial by the prosecutor’s closing argument; (4) guilt was not proved beyond a reasonable doubt; (5) the supplemental post-trial motion for a new trial based on newly discovered evidence was improperly denied; and (6) the sentence of 50 years’ imprisonment was excessive.

I. Facts

On March 26, 1991, at approximately 7:45 p.m., Robert Hauskins, whose residence overlooks the east edge of Lincoln Park in Decatur, heard four gunshots coming from the park below. He immediately telephoned the police. Hauskins then heard six or seven more shots, went to the window, and observed the headlights of a car turning around in the road near the parking lot in the park. Hauskins went into the park with a flashlight and met Officer George Harris, and he directed him toward the area where he had heard the gunshots and had seen the car. Both witnesses heard a voice calling “ ‘Help me. I’ve been shot.’ ” They approached the edge of an embankment and Officer Harris shined his flashlight down into the ravine. Approximately 20 to 30 feet below, they observed the victim, Tony Singleton, lying on a pile of debris and again saying “ ‘Help me. I’ve been shot.’ ” Officer Harris radioed for an ambulance and went down the embankment to take a statement from the victim. After giving his name, the victim said, “ ‘Help me. I’m dying. I’ve been shot in the back. Get me out of here. You need to get me out of here.’ ” Officer Harris asked the victim who had done this and the victim said, “ ‘Bryan Lawson is the one who did this to me.’ ” The statement was then repeated, “ ‘Bryan Lawson did this to me.’ ” As the ambulance was arriving, the victim stopped speaking and lost consciousness. At approximately 8:09 p.m., while at the scene with the emergency equipment, Officer Harris heard additional gunshots coming from another location in the park. The victim was transported to the hospital and pronounced dead at approximately 8:35 p.m. He had been shot a total of nine times and bled to death from his wounds. Officer Harris stated he searched the area and found four .380 caliber cartridges in the roadway near the ravine and a pair of shoes, later identified as belonging to the victim, near the basketball court. The following day, a 9 millimeter cartridge was found in the same general area.

At trial, the State called Owen Bates as an eyewitness. He stated that on March 26 he was drinking beer at a picnic table in Lincoln Park when the defendant, the victim, codefendant Stacy Peoples, and a male Bates did not know arrived. Bates heard the group arguing near the basketball court and saw Stacy Peoples searching the victim’s clothes and shoes. Stacy Peoples threw the shoes toward the parking lot. Bates testified that he then heard a shot and saw the victim fall down in the grass. The victim got up and ran, and the defendant ran after him shooting a gun. When Bates saw the victim and the defendant running toward the street, Bates ran up a hill toward the tennis court. He stated that two cars were parked in the parking lot when the shooting began, one of which was a little blue car, and the other a brownish-colored car.

During cross-examination, Bates stated he was on intensive probation due to a prior conviction for forgery and that he had 10 violations of probation pending at the time of trial. Bates also admitted he had given the police a number of versions of the events of March 26 regarding who was present and how the shooting had occurred. The morning following the shooting, Bates was stopped by Officer Montgomery for driving on a suspended driver's license. Bates at that time told Montgomery that he had seen Bryan Lawson shoot Tony Singleton in Lincoln Park. Bates told Officer Montgomery he was in a car with his cousin Clarence Jones when they heard shots fired. Bates also reported there were a lot of people playing basketball at the time of the shooting and everyone left when shots were fired. Bates later admitted that Clarence Jones did not exist.

On March 28, 1991, Bates was arrested on unrelated charges and interviewed by several police officers while in jail. Bates told Officer Begs he did not see the shooting. On March 30, Bates told Officer Beck that on the afternoon of March 26 he went to Lincoln Park to play basketball with Chuck Jones (but he admitted at trial that he actually had gone with his cousin “Cheeseball”). Bates also told Officer Beck that the victim arrived at Lincoln Park in a brown vehicle driven by an unknown black male and that he had played basketball with the victim, Chuck Jones, and other black males at Lincoln Park. Bates told Officer Beck that 15 minutes after the basketball game began, the defendant and Stacy Peoples arrived.

At trial, Bates admitted he had lied to Officer Beck during the investigation because “I didn’t want to do myself any more damage than what I was.” He testified that when he had given previous statements to the police about Singleton playing basketball, he had done so because he was scared. Bates acknowledged that except for the interview with Officer Begs when he denied being a witness to the shooting, every time he talked to the police he told them he saw the defendant shoot Tony Singleton.

The second eyewitness at the scene was a high school student named Jeremy Goucher. He testified that on the night of the shooting, he was going down to the river to go fishing with his friend David Sweet. Halfway down a hill in the park, he observed two people by the basketball court, one of whom pulled out a gun and started shooting. Goucher testified the man doing the shooting was wearing a green shirt and blue jeans with ripped knees and bleach spots all over. He also testified that the gunman’s hair was long and greasy. (A girlfriend and a sister of the defendant subsequently testified that defendant’s hair had never been worn long and greasy and they never saw him wear jeans with bleach spots and ripped knees.) Goucher testified he and Sweet dropped their fishing equipment and ran home. Goucher later returned to the scene to pick up his fishing equipment and at that time spoke to the news media, telling them he had heard shots but had not seen anything.

David Sweet testified that on the evening of March 26, he and Jeremy Goucher went over to Sandy Smothers’ house. While listening to a police scanner they heard something about the police needing assistance in Lincoln Park. He and Goucher and two other people at the Smothers residence then left to go to the park. Sweet and Goucher first stopped next door at Goucher’s house and picked up fishing equipment. As they approached the park, they heard what sounded like shots. When they arrived, they saw the rescue team lift Singleton out of the ravine. They stayed and watched the activity for approximately 10 to 15 minutes and then returned to Sandy Smothers’ house. Sweet stated that he and Goucher and four other friends returned to the scene a second time after police vehicles had left but while the news media was there. Sweet stated that before he heard the news on the police scanner, he knew nothing about a shooting in the park.

Three girls who were at the Smothers residence -with Sweet and Goucher testified they were all listening to a police scanner and, after hearing that the police needed assistance in Lincoln Park, two of the girls accompanied Sweet and Goucher to the park. Goucher first stopped next door at his own house to pick up some fishing equipment. On arrival at the park, they observed police and emergency personnel, waited about 10 minutes, and returned home. Each of the two girls stated that they later returned to the scene while the news media was there and one of the girls testified that she heard both Sweet and Goucher tell the news media they had seen the shooting.

Kim Murphy, a girlfriend of the victim, testified that Singleton had resided with her for the two nights prior to the shooting. On March 26, at 5:30 p.m., the defendant and Stacy Peoples stopped in front of her house and asked for Singleton. When she told them Singleton was asleep, the defendant responded that he would be back in 15 minutes. The defendant did not return to Murphy’s residence until 7:15 when he told her to have Singleton meet him at the liquor store in 15 minutes. The defendant was in a little blue Horizon and Murphy saw him drive to the liquor store a few hundred feet west of her house. She stated that Singleton left her house between 7:25 and 7:28 p.m., just as the television program “"Who’s the Boss?” was ending, and walked to the liquor store where he got in the blue Horizon with the defendant. She stated that they drove away from the liquor store at approximately 7:35 p.m.

Dexter Dunning was called by the State and testified that on March 26 he saw the victim and the defendant together at a barbecue stand at approximately 7 p.m. Dunning stated that he talked to Singleton while the defendant was in a blue Horizon talking on the telephone. Dunning then observed Singleton get in the blue car with defendant and another person he did not recognize and drive off.

Patrick Tyler was called as a witness to a shooting which had occurred two months prior to the murder. He testified that in the early morning hours of February 2, 1991, he was walking past a housing project in Decatur when he heard hollering and observed the defendant walking toward a maroon car and cursing. Tyler observed the defendant make a motion he called “slide action back” with what he believed to be a gun. As Tyler turned to run he heard a gunshot and was struck by a bullet in the left buttock. Tyler said he did not believe the defendant was shooting at him. The parties entered a stipulation that Tyler’s treating physician at the time of the incident would testify Tyler told him on February 2 that he had been sitting around a table drinking when an argument ensued and he was shot in the buttock as he turned to leave. Tyler denied telling his physician that version of events. The bullet was removed from Tyler’s buttock on July 19,1991, by his treating physician and entered into evidence.

On July 4, 1991, a .380 semi-automatic pistol, wrapped in duct tape and a Decatur newspaper, was found along the Illinois side of the bank of the Mississippi River in East St. Louis. On July 14, 1991, a second firearm was found in the same general location partially buried in sand and wrapped in gray duct tape. This firearm was a 9 millimeter Star automatic pistol. The blue Horizon was recovered on March 30, 1991, and a .380 caliber cartridge was removed from the backseat cushions. There was also evidence that the windshield of the car had been replaced two days after the murder.

A forensic expert testified he examined the five cartridges found at the scene of the crime, the four bullets removed from the victim, the bullet removed from the buttock of Patrick Tyler, the cartridge removed from the backseat of the blue Horizon, the .380 caliber pistol, and the 9 millimeter Star pistol. The expert testified five of the cartridge cases were fired from the .380 caliber firearm found on July 4, 1991, and one of the cartridges found at the scene was fired from the 9 millimeter automatic found on July 14, 1991. Three of the bullets removed from the body of the victim were fired from the .380 caliber firearm and the fourth bullet was fired from the 9 millimeter handgun. The expert further testified the bullet removed from the chest of the victim and the bullet removed from the buttock of Patrick Tyler were fired from the same 9 millimeter handgun.

Randy Mullens, an inmate in the Department of Corrections, testified that on March 29, 1991, he was housed in the Macon County jail and overheard a conversation between defendant and an inmate named Charles Peck regarding money the victim owed the defendant and other people. Mullens testified that he heard defendant state that he did not get his money, but “he cold served the mother fucker.” He also claimed the defendant stated his favorite gun was a 9 millimeter and that a skin test analysis for gun powder would do no good because he was wearing gloves. In response, the defense called Charles Peck, who stated he was present in the county jail when defendant was a prisoner there and he never overheard defendant say he was involved in the murder in any way.

The defense called nine witnesses who stated, essentially, that at the time of the shooting, defendant was in Phoenix Park playing basketball or talking to friends. Three female high school students stated that on March 26 they were dropped off at Phoenix Park at approximately 6 p.m. and were not picked up until after 8 p.m. Each stated defendant was at the park before their arrival and that he left in a white truck no sooner than 15 minutes before they did. He was described as wearing red or black pants. One of the girls stated that it did not get dark until a little after 7:30 p.m. when people quit playing basketball and moved to the parking lot. A stipulation was entered that on March 26, 1991, in Decatur, Illinois, sunset was at 6:16 p.m. A witness who drove the three girls to the park testified that one or two days prior to hearing about the shooting she had dropped off the three girls at Phoenix Park by 6 p.m., returned home and had a phone call with her boyfriend in the military, and returned to the park to pick up the girls. She took all the girls home and was home herself by 7:30 p.m.

Another defense witness testified that he saw the defendant at Phoenix Park on March 26 as defendant walked toward the parking lot sometime before 7:30 p.m. at which time “the sun was getting ready to go down, but it wasn’t real dark.” The witness stated that after that time, he did not see defendant for the rest of the evening nor the blue car that had been parked in the parking lot.

Two other witnesses recalled seeing the defendant at Phoenix Park from 5:30 or 6 p.m. until 8 or 8:30 p.m. on the date of the shooting. Christopher Peoples, cousin of the defendant and the brother of codefendant Stacy Peoples, stated that he went to Phoenix Park at 7:45 p.m. on March 26 and he and defendant listened for 15 minutes to new speakers he had put in his car. Another witness stated he saw the defendant at the park from 5:30 or 6 p.m. until after 9 p.m. One witness testified he was certain he saw the defendant at Phoenix Park around 7:30 p.m. because he had to be at his job at the Elks Club by 8 p.m. and he had arrived late on that date. The employer testified that the witness had not been employed at the Elks Club until May or June 1991, and was not working there in March.

At the hearing on defendant’s supplemental post-trial motion, Dwayne Kirk, who is known by the name “Cheeseball,” testified that following the trial Bates told him he lied about seeing the defendant shoot Singleton. Kirk testified Bates made the same statement to his brother, Stacy Bates. Each of the brothers denied making or hearing that statement.

Kirk stated he first related Bates’ statement to codefendant Stacy Peoples, with whom he shared the same pod while both were in custody in the Macon County jail. The court denied the motion for a new trial, indicating the evidence was not of such conclusive character it would have changed the results of the trial.

II. Dying Declaration

Defendant challenges the admission of the victim’s statement “ ‘Bryan Lawson did this to me’ ” on two grounds: (1) since the victim said, “ ‘Get me out of here,’ ” he had not given up hope for his survival nor despaired of life; and (2) while the statement indicates the victim was holding the defendant accountable in some unknown manner, he never said the defendant shot him. The State claims the victim’s statements are legally sufficient as either a dying declaration or an excited utterance. We need not address the State’s latter claim as we find the statement was properly admitted as a dying declaration.

Statements of fact by the victim concerning the cause and circumstances of a homicide are admissible when (1) they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, (2) the victim is in possession of his mental faculties sufficient to understand what he is doing and to be able to give a true and correct accounting of the facts to which the statement relates, and (3) the court outside the hearing of the jury is convinced beyond all reasonable doubt the elements of a true dying declaration are present. (People v. Tilley (1950), 406 Ill. 398, 403-04, 94 N.E.2d 328, 331-32; People v. Cobb (1989), 186 Ill. App. 3d 898, 907-08, 542 N.E.2d 1171, 1178.) In determining whether a particular statement constitutes a dying declaration a court will look to all the facts and circumstances surrounding the statement, including the grievous nature of the victim’s wounds, as evidence of the victim’s state of mind. People v. Webb (1984), 125 Ill. App. 3d 924, 934-35, 466 N.E.2d 936, 943.

In this instance, at the time the statement was made, the victim had been shot a total of nine times with powerful handguns and he was bleeding to death as a result of those wounds. It is reasonable to conclude he knew of the seriousness of his condition. (See Webb, 125 Ill. App. 3d at 935, 466 N.E.2d at 943; People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1119, 443 N.E.2d 673, 683.) When discovered by Officer Harris and Hauskins, he was conscious, coherent, and crying out for help. Prior to naming the defendant, he repeatedly stated he had been shot in the back and was dying. The fact the victim insisted on being removed from the ravine is insufficient to refute his stated belief he was going to die based on the dire circumstance of his condition.

“To require that the declarant should have lost every scintilla of a hope of recovery would be to require the impossible.
In most cases, a dying person will cling to whatever hope of recovery exists, no matter how unreasonable, even until his last desperate breath has expired. Thus, if we were to hold that the declarant is required to have absolutely no hope of recovery, no matter how unreasonable that hope is, we would have to hold that no such thing as a dying declaration exists. A statement should not be rejected as a dying declaration when only nebulous rays of hope exist.” (People v. Davis (1981), 93 Ill. App. 3d 217, 232, 416 N.E.2d 1197, 1208.)

Defendant takes exception to the form of the accusation uttered by the victim, i.e., the defendant “ ‘did this,’ ” and argues an uncertainty therefore exists as to the meaning of the declaration. Given the context of the statement — made while the victim lay bleeding to death in the ravine from nine bullet wounds — any lack of specificity in the accusation creates no reasonable doubt the victim was naming defendant as his murderer.

A court’s determination of the admissibility of the statement may not be disturbed on appeal unless it is palpably contrary to the manifest weight of the evidence. (People ex rel. Hatch v. Elrod (1989), 190 Ill. App. 3d 1004, 1015, 547 N.E.2d 1264, 1270, cert. denied (1990), 498 U.S. 845, 112 L. Ed. 2d 96, 111 S. Ct. 128; Webb, 125 Ill. App. 3d at 934, 466 N.E.2d at 942.) This was a dying declaration and was properly admitted.

III. Other Crimes Evidence

Defendant contends that both the testimony as to the prior shooting of Patrick Tyler and the bullet removed from his buttock were improperly admitted into evidence because (1) defendant was never charged with the shooting of Tyler and (2) the evidence was insufficient to indicate defendant had in fact shot Tyler. Evidence of other crimes may be admitted if relevant to establish any fact material to the prosecution other than the propensity of the defendant to commit a crime. (People v. Rigen (1991), 145 Ill. 2d 353, 583 N.E.2d 515; People v. Summers (1990), 202 Ill. App. 3d 1, 559 N.E.2d 1133.) The decision of the trial court regarding the admissibility of other crimes evidence will not be disturbed on review unless it constitutes a clear abuse of discretion. (Summers, 202 Ill. App. 3d at 18, 559 N.E.2d at 1143.) The testimonial evidence by Tyler identifying defendant as the gunman responsible for his injury together with the forensic evidence linking the bullets used in the shootings of both Tyler and the murder victim was highly probative in identifying the weapon and its possessor at the time of the March 26 shooting. In People v. Carter (1967), 38 Ill. 2d 496, 232 N.E.2d 692, the court admitted testimony concerning an assault and robbery involving the same handgun which was used in a murder committed seven years earlier. The court determined that testimony regarding the later attack and the identification of the assailant was properly admitted because it tended to establish the identity and ownership of the weapon used in the murder. Carter, 38 Ill. 2d at 504-05, 232 N.E.2d at 697.

In People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, the court admitted evidence linking the weapon used in a shooting at a tavern and the identity of the perpetrator of that shooting to a murder committed four days prior to the tavern shooting. The court noted that expert testimony had established the same gun fired the bullet recovered from the decedent and the bullet recovered from the wounded bartender. Moreover, eyewitness testimony identifying defendant as the gunman in the tavern shooting was relevant to the determination of whether he was the gunman in the previous murder. (Richardson, 123 Ill. 2d at 339-40, 528 N.E.2d at 617.) Similarly, in this case, the bullet removed from Tyler’s buttock and testimony identifying defendant as the gunman in February 1991 were relevant in determining whether he was the gunman in the murder of Singleton.

Defendant’s argument on this issue appears to be in reference to the rule that evidence of other crimes cannot be admitted unless it is first shown that a crime actually occurred and the defendant committed it. (Summers, 202 Ill. App. 3d at 17, 559 N.E.2d at 1143; see People v. Gugliotta (1980), 81 Ill. App. 3d 362, 365, 401 N.E.2d 262, 264.) However, there is no requirement that defendant be charged with the other offense (see People v. Peebles (1983), 114 Ill. App. 3d 684, 449 N.E.2d 230 (other crimes evidence was admissible when prosecution of those other charges was barred by the statute of limitations); People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608 (charges were dismissed at the preliminary hearing)); nor is there any doubt the shooting of Tyler was a criminal offense even if he was not the intended victim. Tyler testified he saw defendant make a sliding or cocking motion with an object Tyler did not see but believed was a gun. He heard the defendant cursing as defendant approached someone near a maroon car. Tyler turned to run, apparently the other person moved out of the way, and Tyler received a bullet in his buttock.

Evidence of other crimes need not be proved beyond a reasonable doubt. (Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 477 N.E.2d 231; Summers, 202 Ill. App. 3d at 17, 559 N.E.2d at 1143.) We find the evidence was sufficient to show a crime had been committed and defendant had fired the shot which struck Tyler. Accordingly, this evidence was properly admitted.

IV. The Prosecutor’s Closing Argument

Defendant next claims the prosecutor’s closing argument mischar-acterized the evidence by stating Hauskins observed a “small vehicle” in the parking lot at the time he reported the gunshots to the police. Counsel for the defense objected that the comment was a misstatement of the evidence. The court sustained the objection and admonished the jury to recall the evidence for itself. Hauskins actually had testified he saw the headlights of a car turning around to leave the park. Hauskins was certain the vehicle was not a large truck but felt it could have been a pickup truck. Defendant contends the prosecutor again misstated the evidence by claiming three defense witnesses were constantly looking at their watches during the time defendant allegedly was present in Phoenix Park. Counsel objected, noting one witness was uncertain of the time. The court overruled the objection, instructing the jury to recall the evidence. The State claims this comment actually benefits the defendant by making his alibi stronger than it was, while defendant claims the statement was made to discredit the alibi witnesses by suggesting their testimony was incredible.

Prosecutors have a great deal of latitude in making closing arguments and absent a clear abuse of discretion, determinations as to their propriety and possible prejudicial effect will be followed. (People v. Morgan (1991), 142 III. 2d 410, 452-53, 568 N.E.2d 755, 770.) In order for a prosecutorial remark to be deemed reversible error, it must have resulted in substantial prejudice to the accused such that the verdict would have been different had it not been made. (Morgan, 142 Ill. 2d at 453, 568 N.E.2d at 770.) At both the beginning and the end of closing arguments, the court instructed the jury that the attorneys’ statements were not evidence in the case and any statement made by an attorney not based on the evidence should be disregarded. The prosecutor as well as the defense counsel told the jury that what they said was not evidence and anything not based on the evidence should be disregarded. Jurors are presumed to have followed the court’s instructions. People v. Bratton (1989), 178 Ill. App. 3d 718, 726, 533 N.E.2d 572, 578.

We conclude the prosecutor’s characterization of Hauskins’ testimony was a reasonable inference drawn from the evidence presented (People v. Thompkins (1988), 121 Ill. 2d 401, 445, 521 N.E.2d 38, 57), and any mischaracterization of the three defense witnesses’ testimony that they were all checking their watches would not have changed the outcome had this statement not been made. Therefore, neither of the remarks constitutes reversible error.

V. Sufficiency Of The Evidence

Defendant points to the following inconsistent evidence presented at trial to show he was not proved guilty beyond a reasonable doubt: (1) conflicting statements were given by Owen Bates to the police prior to trial; (2) alibi testimony of defense witnesses placed the defendant at Phoenix Park rather than Lincoln Park at the time of the shooting; and (3) Jeremy Goucher’s description of the shooter as having long, greasy hair and wearing jeans with bleach spots and holes in the knees was in contrast to the other witnesses’ description of defendant as having short hair and wearing red or black pants. When faced with a challenge to the sufficiency of the evidence, it is not the reviewing court’s function to retry the defendant. (Illgen, 145 Ill. 2d at 376, 583 N.E.2d at 525.) Our standard of review is limited to determining if any rational trier of fact when reviewing the evidence in the light most favorable to the prosecution could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290.

It is evident Owen Bates’ trial testimony was contradicted by previous statements he had given to various police officers investigating the case. He admitted that he lied at one point during the investí-gation when he denied witnessing the shooting. Other inconsistencies went to the identification of persons he had been with on the afternoon of the shooting, eyewitnesses to the shooting who either were not present or never existed, whether he left the scene by car or bicycle, and whether the defendant, the victim, and others were playing basketball at the park prior to the shooting.

Defense witnesses who testified they saw the defendant at Phoenix Park during the relevant time span were in turn contradicted by witnesses for the State who placed the victim in the company of the defendant between 10 and 40 minutes before the shooting took place. Jeremy Goucher gave a description of the shooter that did not match that of the defendant, but his three companions gave testimony indicating none of them were present at Lincoln Park at the time of the shooting and first went to the scene after hearing a report on the police scanner.

Inconsistencies in testimony are to be resolved by the trier of fact. (People v. Hoffman (1970), 45 Ill. 2d 221, 258 N.E.2d 326.) “[D]e-terminations of the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact.” (People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 796, 110 S. Ct. 3288.) Moreover, the contradictory testimony presented by each of the parties was not the only evidence in the case. Evidence of the defendant’s identity as the murderer was first presented by the final words of the victim: “ ‘Bryan Lawson did this to me.’ ” The jury is not required to accept contradictory alibi testimony over positive identification by the victim, and the testimony of a single witness, if positive and credible, is sufficient for a conviction. (People v. Palmer (1989), 188 Ill. App. 3d 414, 420-21, 545 N.E.2d 743, 749.) Additionally, the State linked the defendant to the murder weapon through evidence of the shooting of Tyler less than two months before the murder. In reviewing the record as a whole, there is no doubt a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

VI. Motion For A New Trial Based On Recantation And Newly Discovered Evidence

Defendant’s supplemental post-trial motion requested a new trial based on newly discovered evidence which contradicted Bates’ testimony he had been playing basketball with “Cheeseball” at Lincoln Park on the day of the shooting and on an alleged recantation by Owen Bates. Dwayne Kirk, known as “Cheeseball,” testified he had been with Bates on the afternoon of the shooting and they had played basketball at Phoenix Park. He stated he left Bates at approximately 7 p.m. when Bates stated he was going home to comply with the terms of his intensive probation.

Generally, newly discovered evidence must be material and not merely cumulative, so conclusive it would probably have changed the outcome and incapable of discovery prior to trial by the exercise of due diligence. (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) In this case, the newly discovered evidence would merely have contradicted some of Bates’ testimony regarding his activities prior to the shooting; it provided no information as to the circumstances of the shooting or impeachment of Bates’ observations in Lincoln Park. It could not have changed the jury’s verdict. Kirk claimed Bates told him he had lied during his trial testimony because he was already in deep trouble and Stacy Bates, Owen's brother, had also heard this statement. Stacy Bates testified that Owen had never discussed the trial in his presence and he had never heard Owen say that he lied during his trial testimony. Owen Bates denied making any statement to Kirk that he had lied during his trial testimony.

Recantation of trial testimony is generally viewed as unreliable, and a determination as to the credibility of a witness recanting prior testimony lies within the discretionary authority of the trial judge. (See People v. Fields (1990), 135 Ill. 2d 18, 43, 552 N.E.2d 791, 801-02, cert. denied (1990), 498 U.S. 881, 112 L. Ed. 2d 182, 111 S. Ct. 227.) In this instance, we are presented with nothing more than an alleged recantation which was denied by both Owen Bates and his brother. It is apparent the trial court afforded little weight to either the recantation testimony or the newly discovered evidence, as it noted: “The jury did not find [defendant] guilty of murder on the basis of the testimony of Mr. Bates. At the very most, it was cumulative if [it] chose to give any weight to what he said. And this Court is of the opinion that even without that testimony, that the result of the trial probably would not have been other than what it was.” Decisions of the trial judge on a motion for a new trial based on newly discovered evidence will not be disturbed on appeal absent an abuse of discretion. (Miller, 79 Ill. 2d at 464, 404 N.E.2d at 204.) We find no abuse of discretion in the denial of the motion for a new trial.

VII. Excessive Sentence

Defendant contends his sentence of 50 years’ imprisonment was excessive based on the trial court’s failure to consider mitigating factors and his rehabilitative potential. Pursuant to defendant’s conviction for first degree murder, he was eligible for a sentence of imprisonment for a term not less than 20 nor more than 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aXl).) Defendant bases his potential for rehabilitation on his young age (21) and the absence of any acts of violence in connection with his prior criminal convictions. As factors in mitigation, defendant lists the death of his mother when he was only 10 years old and the fact he helped his elderly grandparents by working in the garden and running errands. The court found a lack of factors in mitigation, noting that while defendant was a young man, he was not a child and was capable of appreciating the seriousness of his actions, which were not the result of events unlikely to recur. The court also considered defendant’s three prior adult criminal convictions as factors in aggravation, and noted that deterrence was a proper sentencing factor.

While the court is required to consider rehabilitative potential, this factor need not be accorded more weight than the seriousness of the offense or the other factors considered. (People v. Waud (1977), 69 Ill. 2d 588, 373 N.E.2d 1; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) The responsibility for striking the balance between the competing factors is for the determination of the trial court. People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307.

The trial court expressly reviewed the statutory factors, both in mitigation and in aggravation, including defendant’s rehabilitative potential, his prior convictions, the evidence regarding the shooting of Tyler, and the seriousness of the offense. We find no abuse of discretion in the sentence imposed.

The decision of the circuit court of Macon County is affirmed.

Affirmed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    MAGNA BANK OF McLEAN COUNTY, Plaintiff-Appellant, v. GILBERT COMER, JR., Defendant-Appellee.
    Fourth District
    No. 4—92—0020
    Opinion filed July 9, 1992.

      George C. Wood, of Luedtke, Hartweg & Turner, of Bloomington, for appellant.
    No brief filed for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Magna Bank of McLean County appeals from an order of the circuit court of McLean County dismissing its cause of action against Gilbert Comer, Jr. Plaintiff sued to recover from defendant the balance due on a motor vehicle retail installment contract, plus interest, attorney fees, and costs. Determining defendant was a cosigner who was not a spouse or parent of the person who had possession of a 1984 Buick Le Sabre automobile, the trial court decided section 18 of the Motor Vehicle Retail Installment Sales Act (Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 578) rendered defendant not liable since he did not also sign as a guarantor. The only issue presented on review is whether the trial court’s application of the statute to this case was incorrect. We reverse and remand for further proceedings.

On appeal, the defendant has not filed an appellee’s brief. However, this case is not being reversed for that reason. While this court will not act as an advocate for the appellee, the record is simple, and the claimed error is such that this court can decide the case on the merits without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

Section 18 of the Act reads as follows:

“Each person, other than a seller or holder, who signs a retail installment contract may be held liable only to the extent that he actually receives the motor vehicle described or identified in the contract, except that a parent or spouse who cosigns such retail installment contract may be held liable to the full extent of the deferred payment price notwithstanding such parent or spouse has not actually received the motor vehicle described or identified in the contract and except to the extent such person other than a seller or holder, signs in the capacity of a guarantor of collection.
The obligation of such guarantor is secondary, and not primary. The obligation arises only after the seller or holder has diligently taken all ordinary legal means to collect the debt from the primary obligor, but has not received full payment from such primary obligor or obligors.
No provisions in a retail installment contract obligating such guarantor is valid unless:
(1) there appears below the signature space provided for such guarantor the following:
T hereby guarantee the collection of the above described amount upon failure of the seller named herein to collect said amount from the buyer named herein.’; and
(2) unless the guarantor, in addition to signing the retail installment contract, signs a separate instrument in the following form:
‘EXPLANATION OF GUARANTOR’S OBLIGATION
You ... (name of guarantor) by signing the retail installment contract and this document are agreeing that you will pay ... (total deferred payment price) for the purchase of ... (description of goods or services) purchased by ... (name of buyer) from ... (name of seller).
Your obligation arises only after the seller or holder has attempted through the use of the court system to collect this amount from the buyer.
If the seller cannot collect this amount from the buyer, you will be obligated to pay even though you are not entitled to any of the goods or services furnished. The seller is entitled to sue you in court for the payment of the amount due.’
The instrument must be printed, typed, or otherwise reproduced in a size and style equal to at least 8 point bold type, may contain no other matter (except a union printing label) than above set forth and must bear the signature of the cosigner and no other person. The seller must give the co-signer a copy of the retail installment contract and a copy of the cosigner statement.” (Ill. Rev. Stat. 1989, ch. 121V2, par. 578.)

Section 2.2 of the Act defines a “buyer” in this way:

“ ‘Retail buyer’ or ‘buyer’ means a person who buys a motor vehicle from a retail seller, primarily for personal, family, household or agricultural purposes in a retail installment transaction, but does not include a buyer for use in business (not including farming or a profession).” Ill. Rev. Stat. 1989, ch. 121V2, par. 562.2.

In the trial court, the parties entered into the following stipulations:

“1. That the copy of the Retail Installment Contract, attached to the Complaint and referenced as Exhibit A, is a true and accurate copy/reproduction of the original document under which a 1984 Buick LaSabre automobile was purchased from Sam Leman Dodge City.
2. That under the retail Installment Contract, Linda Jenkins is listed as a buyer of the 1984 Buick LaSabre automobile and signed as a buyer on October 29,1989.
3. That under the Retail Installment Contract, Gilbert S Comer, Jr., is listed as buyer of the 1984 Buick LaSabre automobile and signed as a buyer on October 29,1989.
4. The title to the 1984 Buick LaSabre automobile, attached to the answer to Affirmative Defenses and referenced as Exhibit B, is a true and accurate copy/reproduction of the original.
5. On the title to the 1984 Buick LaSabre automobile, Linda Jenkins and Gilbert Comer, Jr., are listed as owners.
6. That the rights of Sam Leman Dodge City, under the Retail Installment Contract, were effectively assigned to Magna Bank of McLean County on November 2, 1989, under the ‘assignment’ clause/section of the Retail Installment Contract.
7. As of August 28, 1991, there is an outstanding balance due under the Retail Installment Contract of $4,027.87.
8. That Gilbert S. Comer, Jr., did not sign the Retail Installment Contract as a Guarantor. That Gilbert S. Comer, Jr., did not sign a separate instrument detailing the explanation of the guarantor’s obligations.
9. That Gilbert S. Comer, Jr., is not a parent or spouse of Linda Jenkins.
10. That the Defendant does not dispute the existence of the debt, nor the balance thereof, as it would be against Linda Jenkins under the Retail Installment Contract.
11. The Defendant’s sole defense is that he did not receive the 1984 Buick LaSabre automobile, and therefore, would not be liable for any balance due on said vehicle under Illinois Revised Statutes, Ch. 121V2, §578.
12. The defendant did not during the term of the contract have physical possession of the car.
13. Plaintiff’s attorney fees are $780.00 plus costs of $62.00.”

In entering the order dismissing this cause, the trial court found as follows: (1) defendant never received possession of the vehicle; (2) defendant is not a parent or spouse of a person receiving possession of the vehicle; (3) there is no evidence the person receiving the vehicle was sued or that plaintiff was unable to collect from that person; and (4) section 18 of the Act therefore bars recovery.

The construction of a statute is a question of law, and on review, the appellate comb will construe the statute independently of the trial court’s judgment. (Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 367, 561 N.E.2d 295, 297.) In construing a statute, the court is to determine and give effect to the legislative intent underlying the statute, considering its nature and purpose and ascribing a reasonable meaning to each word, clause, or sentence, but where the statute is unambiguous and the legislative intent can be ascertained from the statutory language, resort to extrinsic construction aids is unnecessary. Village of South Elgin, 203 Ill. App. 3d at 368, 561 N.E.2d at 297.

It is clear from a reading of section 18 of the Act that the legislature did not intend to limit the contractual obligation of a “buyer.” Section 18 employs the term “co-signer,” but the Act does not define that term separately. In the context of the statute, it is clear a guarantor is a cosigner since only a cosigner may sign the form entitled “Explanation of Guarantor’s Obligation” and the seller must provide a copy of that document and a copy of the retail installment contract to the “co-signer.” A cosigner is generally a person who signs the contract, but is not listed in the body of the contract as a buyer or principal obligor, where some other person has been so designated. (See R.S. Boston Co. v. Chapman (1970), 131 Ill. App. 2d 385, 386-87, 266 N.E.2d 767, 768-69.) The purpose of the statute is obviously to limit the liability of persons, not buyers, who sign a retail installment contract, but to whom the extent of their personal liability in so doing has not been fully disclosed prior to or at the time of signing the contract. This is a laudable purpose, but the Act does not alter the liability of a buyer. Nowhere in the definition of the term “buyer” is it required that the buyer receive possession of the automobile. Any person can purchase an automobile for a friend, with the expectation that the friend will have possession of the automobile. In so inducing a retail seller of motor vehicles to relinquish possession of an automobile, that is sufficient receipt to impose liability. We are particularly mindful that the stipulations do not suggest any fraud or misrepresentation on the part of the seller which induced defendant to sign as a buyer rather than in some other capacity.

Since plaintiff has demonstrated prima facie reversible error (Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495), the order of the circuit court of McLean County dismissing the plaintiff’s cause of action against defendant is reversed and the cause is remanded for further proceedings not inconsistent with this court’s ruling.

Reversed and remanded.

KNECHT and LUND, JJ., concur.