author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER ROBINSON, Defendant-Appellant.
    Third District
    No. 3—91—0726
    Opinion filed August 7, 1992.
    Rehearing denied September 25, 1992.

      Ira B. Goldstein, Ltd., of Joliet (Ira B. Goldstein, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Walter Robinson was convicted of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)). Defendant was sentenced to a six-year term of imprisonment. On appeal, defendant contends: (1) that the trial court erred in finding certain evidence inadmissible; (2) that defendant’s trial counsel was ineffective; and (3) that defendant was not proved guilty beyond a reasonable doubt. We affirm.

On June 30, 1988, police officers were conducting a surveillance operation on Grover Street in Joliet, Illinois. Officer Timothy Simen-son testified that he saw a person, later identified as the defendant, carrying two grocery bags and a shoulder bag. Defendant placed the grocery bags in the trunk of a silver Nissan, conversed with a man later identified as Wayne Washington, and crossed the street while still carrying the shoulder bag. Defendant and Washington walked toward a gold Oldsmobile in which they apparently drove away a short time later. Approximately 30 minutes later the car returned and parked behind the Nissan. Defendant was in the driver’s seat. Washington got out of the car and opened the trunk of the Nissan, at which time the police converged on the scene.

Officer Simenson further testified that he told the defendant to get out of the car and then asked him if he owned the shoulder bag. The bag was lying in the middle of the front seat of the car. According to Simenson, defendant stated that he did not own the bag, nor did he know who owned it. Defendant also said that he did not know who owned the Oldsmobile. Simenson opened the shoulder bag and found a bag containing 28.2 grams of cocaine, a gram scale and personal papers. The papers, including credit cards, a checkbook and driver’s license, belonged to Washington, although this was not brought out during Simenson’s testimony. Simenson also stated that he found a wallet lying next to the shoulder bag. The wallet contained $300 and various papers, including identification bearing defendant’s name. Among the items in the wallet was a piece of paper containing names and dollar amounts which Simenson stated appeared to be narcotics records. The two grocery bags in the trunk of the Nissan contained a handgun holster, a telephone pager, two or three boxes that handguns would be packaged in, and a large amount of ammunition.

Sergeant Frank Christian testified that he searched the defendant after placing him under arrest. Christian found a telephone beeper attached to the waistband of defendant’s shorts and also found $788 in defendant’s front pocket.

Officer Patrick Kerr testified that he also observed the defendant place two grocery bags in the trunk of the Nissan. Defendant was wearing the shoulder bag at the time. Kerr also testified concerning his training and experience in drug investigations, including executing more than 500 narcotics-related search warrants. Kerr stated that certain items are commonly found when narcotic distributors are arrested, including scales, records of transactions, guns, large quantities of money and telephone pagers. Kerr examined the paper allegedly found in defendant’s wallet and said that it appeared to be drug records. Kerr further testified that he searched Washington and found that he was carrying three handguns.

On cross-examination, Kerr testified that he saw the shoulder bag lying on the front seat of the Oldsmobile, but he did not ask who owned the bag. Following an objection by the State and a side-bar conference, the trial court ruled that a statement made by Washington that he owned the bag was inadmissible hearsay. This statement, according to defense counsel, was contained in Kerr’s police report.

The defendant testified that he was a student at the University of Nevada at Las Vegas. Defendant was working at his grandmother’s grocery store and the $788 was given to him to buy stock for the store at a wholesaler. Defendant stated that he went to Grover Street to pick up a friend to play basketball. Defendant honked the car’s horn but his friend was not home and Washington, carrying the shoulder bag, asked defendant for a ride. Defendant denied ever getting out of the car. Defendant gave Washington a ride to a location on Mississippi Street and they returned to Grover about 15 minutes later. Washington got out of the car and walked towards the Nissan. Defendant called out to Washington that he had forgotten his shoulder bag. Washington opened the trunk of the Nissan and the police suddenly appeared. Defendant testified that a police officer asked him who owned the car and he said he had borrowed it from Edward Dorris. Defendant was then asked who the shoulder bag belonged to and he pointed at Washington and said it was his bag. Defendant denied knowing what was in the bag. Defendant also stated that his wallet was on his person and not on the seat of the car. Defendant further testified that the paper which the police officers had characterized as drug records was not his and had not come from his wallet. Defendant denied putting the grocery bags in the trunk of the Nissan and denied carrying the shoulder bag. He stated that when he first pulled up in his car he saw Washington putting the grocery bags in the Nissan and carrying the shoulder bag. Defendant also denied owning the telephone pager and said it was on the visor of the car he had borrowed.

Defendant first contends that the trial court erred in not allowing testimony regarding Washington’s statement that he was the owner of the shoulder bag. Defendant argues that such a statement was admissible as an exception to the hearsay rule as an admission against penal interest or as an “excited utterance” or “spontaneous declaration.” The State maintains that defendant has waived this issue because he failed to present these arguments to the trial court. We agree.

In general, a party is not permitted to tender one theory of admissibility at trial and then argue an entirely different theory on appeal. (People v. Miller (1977), 55 Ill. App. 3d 136, 370 N.E.2d 639; see People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132 (defendant’s argument concerning spontaneous declaration was waived); People v. Powell (1985), 139 Ill. App. 3d 701, 487 N.E.2d 719 (defendant waived contention that evidence was admissible as a declaration against penal interest).) The trial judge in this case specifically invited defense counsel to offer some legal basis for admissibility of the hearsay statement. Defendant contends that he proffered the theories of admissibility he now argues on appeal when defense counsel stated to the trial judge at one point that “there is [an] exception that it comes in under” and by later using the word “admission.” Our review of the record clearly indicates, however, that defense counsel never offered or argued the theories of admissibility at trial which defendant now makes on appeal. This issue has been waived.

Even if we were to consider this issue on the merits, however, we would find defendant’s arguments unavailing. Defendant contends that Washington’s statement was admissible under Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, as a declaration against penal interest. Chambers was discussed by our supreme court in People v. Bowel (1986), 111 Ill. 2d 58, 66-67, 488 N.E.2d 995, 999:

“Generally an extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay though the declaration is against the declarant’s penal interest. [Citations.] Such declarations may, however, be admitted where justice requires. [Citation.] The Supreme Court of the United States, and this court as well, have held that where there are sufficient indicia of trustworthiness of such extrajudicial statements, a declaration may be admissible under the statement-against-penal-interest exception to the hearsay rule. [Citations.] In Chambers, the court, in holding a declaration admissible, stated that there were sufficient indicia of trustworthiness in that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross-examination of the declarant.”

The four factors listed in Chambers are simply indicia of trustworthiness, however, rather than requirements of admissibility. (Bowel, 111 Ill. 2d 58, 488 N.E.2d 995.) The relevant question in determining admissibility is whether the declaration was made under circumstances that provide considerable assurance of reliability by objective indicia of trustworthiness. Bowel, 111 Ill. 2d 58, 488 N.E.2d 995.

In this case the statement by Washington that he owned the shoulder bag was supported by the personal papers in the bag bearing Washington’s name. Washington’s statement was not, however, made spontaneously to a close acquaintance shortly after the crime occurred. It was, instead, made to a police officer in response to questioning after Washington’s arrest. In addition, Washington was not called as a witness and therefore was not available for cross-examination. Finally, according to an offer of proof made at the hearing on defendant’s motion for a new trial, Washington stated to Officer Kerr that he owned the shoulder bag and its contents but he specifically denied knowing about the cocaine. Therefore, we do not believe that Washington’s statement “was in a very real sense self-incriminatory and unquestionably against interest.” Chambers, 410 U.S. at 301, 35 L. Ed. 2d at 312, 93 S. Ct. at 1048.

We are similarly unpersuaded by defendant’s argument that Washington’s statement was a spontaneous declaration. The requirements for admissibility under the spontaneous declaration exception to the hearsay rule are: (1) the occurrence of an event sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895; People v. McDade (1991), 219 Ill. App. 3d 317, 579 N.E.2d 1173.) Defendant contends that the startling event in this case was when the police converged on Washington with guns drawn and placed him under arrest. Even if we were to accept this contention, we do not believe that Washington’s statement regarding ownership of the shoulder bag was sufficiently related to this occurrence to qualify as a spontaneous declaration. Washington was confronted by the police as he opened the trunk of the Nissan. The shoulder bag was lying on the seat of the Oldsmobile next to the defendant. Furthermore, although not entirely clear from the record, it appears that the statement regarding ownership of the bag was made at the police station in response to questioning after Washington was informed of his Miranda rights. While questioning the declarant does not necessarily destroy spontaneity (Lawler, 142 Ill. 2d 548, 568 N.E.2d 895), nor does the mere passage of time alone control admissibility (McDade, 219 Ill. App. 3d 317, 579 N.E.2d 1173), we do not believe that a statement which is only tangentially related to a startling occurrence which is made in response to police questioning following Miranda warning qualifies as a spontaneous declaration.

Defendant next maintains that his defense counsel was ineffective. Claims of ineffective assistance of counsel are evaluated under the now familiar two-part test formulated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Under Strickland, a defendant must show that his counsel was deficient in that he “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In addition, defendant must demonstrate that counsel’s deficient performance resulted in substantial prejudice. To establish such prejudice, defendant must show that there is a reasonable probability that but for counsel’s error, the result of the trial would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Eddmonds (1991), 143 Ill. 2d 501, 578 N.E.2d 952.

Defendant first claims that defense counsel was deficient in failing to elicit testimony or otherwise present evidence to the jury establishing that the personal papers found in the shoulder bag belonged to Washington. We need not decide, however, whether counsel’s performance in this regard was deficient, because we find that defendant was not substantially prejudiced by counsel’s omission. “If the ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer sufficient prejudice, the court need not decide whether counsel’s errors were serious enough to constitute less than reasonably effective assistance.” (Eddmonds, 143 Ill. 2d at 512.) While defense counsel did not elicit testimony that the personal papers in the shoulder bag belonged to Washington, the bag and its contents were admitted into evidence and submitted to the jury. During closing arguments both the prosecutor and defense counsel informed the jury that the bag contained personal papers belonging to Washington and the jury was invited to examine them. Although defense counsel could certainly have placed more emphasis on the presence of Washington’s papers in the bag, we do not believe that there is a reasonable probability that such a tactic would have affected the outcome of the trial.

Defendant next argues that defense counsel failed to read a transcript of the hearing on defendant’s motion to suppress and thereby allowed defendant to be impeached with his prior testimony. Defendant had testified at a hearing on a motion to suppress evidence. At that time defendant was represented by a different attorney than the one who represented him at trial. The motion to suppress was granted by the trial court, but this court subsequently reversed that judgment. (People v. Washington (1990), 205 Ill. App. 3d 452, 563 N.E.2d 517.) During the suppression hearing defendant testified that he had not been in the vicinity of Grover Street prior to his arrest. The prosecutor used this testimony to impeach defendant’s trial testimony that he was looking for a friend on Grover, left to give Washington a ride, and then returned.

Defendant contends that his trial counsel was deficient in failing to read the transcript of the suppression hearing and thereby allowing defendant to be impeached with his prior inconsistent statement. In support of his assertion that counsel failed to read the transcript, defendant notes that during a discussion which occurred at a side-bar conference defense counsel asked the prosecutor whether Officer Si-menson testified at the suppression hearing. The transcript of the suppression hearing shows that Simenson was the first witness to testify.

Based upon the record before us, we are unable to conclude that defense counsel was unaware of defendant’s prior testimony at the suppression hearing. Although the question counsel posed to the prosecutor concerning Simenson’s testimony may have been the result of his failure to read the transcript of the suppression hearing, it may also have resulted from confusion or mere forgetfulness. We note that the following exchange occurred during the side-bar conference shortly before defense counsel asked whether Simenson had testified:

“MS. BOGGS [Assistant State’s Attorney]: *** My recollection is this defendant testified at the [suppression hearing] and [Simenson] was there both times.
MR. MONAHAN [Defendant’s attorney]: He testified.
THE COURT: He testified at the motion to suppress?
MS BOGGS: I can pull it out. I am pretty sure he did.
MR. MONAHAN: See, he had a different lawyer at that time.”

Clearly, defense counsel was aware that his client had testified previously. What is not clear is whether counsel was aware of the substance of that testimony and nevertheless chose as a matter of trial strategy to have defendant testify. No evidence was presented at the hearing on defendant’s motion for a new trial concerning this issue, and we are unwilling to speculate about possible errors given that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Furthermore, even if we were to assume that counsel failed to review the transcript of the suppression hearing, we do not believe that defendant was substantially prejudiced. The most damaging testimony linking defendant to the shoulder bag was that of Officers Simenson and Kerr that they had observed the defendant carrying two grocery bags and the shoulder bag. They saw the defendant place the grocery bags in the trunk of the Nissan, converse briefly with Washington, and cross the street while still carrying the shoulder bag. At trial, the defendant testified that he went to pick up a friend and later gave Washington a ride, but he denied ever getting out of the car or carrying the shoulder bag. While defendant was impeached by his prior statement that he had not been to Grover Street before his arrest, in view of his consistent denials that he got out of the car or carried the shoulder bag, that impeachment amounted to a minor inconsistency.

Defendant also claims that defense counsel should have called Washington as a witness. However, since Washington denied ownership of the cocaine, his testimony may have been damaging to defendant’s case. In general, the decision to call a particular witness is a matter of trial strategy which will not support a claim of ineffective assistance of counsel. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481; People v. Winchel (1987), 159 Ill. App. 3d 892, 512 N.E.2d 1298.) Defendant has failed to prove that his counsel was ineffective.

Finally, defendant maintains that he was not proved guilty beyond a reasonable doubt. Specifically, defendant contends that the State failed to prove his knowledge of the presence of the cocaine or that it was in his immediate and exclusive control.

The element of knowledge is seldom susceptible of direct proof, but may be proved by evidence of acts, declarations or conduct of the accused from which the inference may fairly be drawn that he knew of the existence of the drugs at the place where they were found. (People v. Sesmas (1992), 227 Ill. App. 3d 1040, 591 N.E.2d 918; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) Where drugs are found in an area under defendant’s control, an inference arises that the defendant had knowledge and control of the drugs, absent other facts and circumstances which might create a reasonable doubt as to defendant’s guilt. (Sesmas, 227 Ill. App. 3d 1040, 591 N.E.2d 918; People v. Wiley (1988), 174 Ill. App. 3d 444, 528 N.E.2d 26.) It is control of a vehicle where drugs are found, rather than ownership, which is pertinent to proving exclusive control of the area where the drugs were located. (People v. Whalen (1986), 145 Ill. App. 3d 125, 495 N.E.2d 122.) Possession may be joint or shared and yet still be exclusive. (People v. Embry (1960), 20 Ill. 2d 331, 169 N.E.2d 767; People v. Stupka (1992), 226 Ill. App. 3d 567, 589 N.E.2d 1068.) Whether defendant had knowledge and control of narcotics are questions of fact to be determined by the trier of fact, and its decision will not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. (Sesmas, 227 Ill. App. 3d 1040, 591 N.E.2d 918.) Moreover, when faced with a challenge to the sufficiency of the evidence, a reviewing court must examine the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

We find that sufficient evidence was presented to establish that defendant had knowledge and control of the cocaine. Officers Simenson and Kerr both saw defendant carrying the shoulder bag. At the time of defendant’s arrest, the bag was lying on the front seat of the car defendant was driving. Washington had gotten out of the car, leaving defendant alone with the bag. These circumstances strongly suggest that defendant had knowledge and control of the contents of the bag. In addition, Simenson testified that he asked the defendant if he owned the shoulder bag, and defendant replied that he did not own it and did not know who did. Defendant also denied knowing who owned the car he was driving. This questioning occurred before Simenson found the cocaine in the bag. Defendant’s responses to these questions are indicative of a consciousness of guilt. While defendant’s account of the events leading to his arrest differed in many respects from the police officers’ testimony, it is the function of the trier of fact to resolve conflicts in the evidence, and a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. (People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791.) We find there was sufficient evidence to prove knowledge and control.

Defendant also contends that there was insufficient proof of his intent to deliver the cocaine. We disagree.

Whether a person possesses the intent to deliver a controlled substance is not always subject to direct proof. (People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538.) A reasonable inference of intent is permitted where the amount of narcotics could not be viewed as designed for personal consumption. (Marshall, 165 Ill. App. 3d 968, 521 N.E.2d 538.) The inference of intent to deliver may be enhanced by the presence of drug paraphernalia and by large amounts of cash and weapons. People v. Berry (1990), 198 Ill. App. 3d 24, 555 N.E.2d 434.

While the 28.2 grams of cocaine found in the shoulder bag is not an exceedingly large amount, we note that smaller amounts have been found sufficient to support an inference of intent to deliver. (Berry, 198 Ill. App. 3d 24, 555 N.E.2d 434 (3.9 grams); People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125 (3.3 grams); Marshall, 165 Ill. App. 3d 968, 521 N.E.2d 538 (13.88 grams).) The inference of intent to deliver in this case is substantially supported by the other items found at the time of defendant’s arrest: a scale, a large amount of money, guns, ammunition, pagers and drug records. We find that there was sufficient evidence to prove that defendant intended to deliver the drugs.

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

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM A. BAHNFLETH, Defendant-Appellee.
    Third District
    No. 3—92—0007
    Opinion filed August 18, 1992.
    Rehearing denied September 25, 1992.

      Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Gary E Gnidovec, both of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Edward Orr, of Reardon, Orr & Dvorak, of East Peoria, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, William A. Bahnfleth, was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501(a)(2)). Thereafter, he received notice that his license would be summarily suspended. The defendant subsequently filed a petition to rescind (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1) alleging that he had not been properly arrested. The trial court agreed and rescinded the statutory summary suspension. The State appeals the trial court’s order. We reverse.

At the hearing on the petition, East Peoria police officer Mark Wright testified that on November 3, 1991, he investigated a traffic accident involving the defendant’s vehicle and another car driven by someone Wright identified as Mr. Eggert. Witnesses at the scene told Wright that Eggert was stopped at a stop sign, waiting to turn left, when the car driven by the defendant rear-ended Eggert’s vehicle. A Tazewell County deputy at the scene told Wright that the occupants of Eggert’s car had told him that they believed the defendant was under the influence of alcohol.

Wright observed that the defendant’s windshield was broken outward and the defendant’s forehead was bleeding. He also noticed that the defendant had trouble breathing and speaking. He later learned that the defendant had suffered a fractured larynx during the accident. Wright placed the defendant in the rear of his squad car due to his injuries. Wright noticed the odor of alcohol on the defendant’s breath. However, he did not notice any of the characteristics he had been trained to look for in intoxicated people, such as profanity, disheveled or soiled clothing, or a combative or cocky attitude.

Wright further testified that his superior officer, Sergeant Dennis Reinhart, had arrived at the accident scene a short time after Wright. Reinhart directed Wright to take the defendant to the police station and ask him to take field sobriety tests there, as the weather was inclement. Reinhart told Wright to arrest the defendant if he refused to take the tests. According to Wright, immediately after arriving at the police station, the defendant took and failed all the field sobriety tests. Wright stated that he believed that Sergeant Reinhart, who was also present, informed the defendant at this time that he was under arrest for DUI. Wright then read the “Warning to Motorist” form to the defendant (see Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1(c)) and asked him if he would submit to chemical tests for alcohol. The defendant refused any tests, and he was later issued a ticket for DUI.

Sergeant Reinhart’s testimony largely corroborated Wright’s. Reinhart stated that after the defendant failed the field sobriety tests, Reinhart told him, “We’ll have to charge you with DUI.” Reinhart explained that by this statement he meant that they would have to issue the tickets and do the proper procedures for a DUI arrest. Reinhart testified that he filled out the tickets while Wright read the “Warning to Motorist” to the defendant and asked him if he would submit to chemical tests. Reinhart stated that the ticket and a notice to appear were given to the defendant as he was leaving the police station.

Following the close of evidence, the trial court found that the defendant had not been properly arrested for purposes of the statutory summary suspension. Accordingly, it rescinded the suspension.

On appeal, the State contends that the defendant was properly placed under arrest prior to being asked to submit to chemical tests for alcohol as required by section 11—501.1(a) of the Illinois Vehicle Code (the Vehicle Code) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1(a)).

The pertinent part of section 11—501.1(a) provides:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11—501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11—501.” Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501.1(a).

The refusal to take a chemical test must be preceded by an arrest for DUI in order for such refusal to be admissible in summary suspension proceedings under section 11—501.1 of the Vehicle Code. (People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.) The issuance of a ticket is one way in which the fact of an arrest may be established. However, a ticket need not precede the officer’s request that a driver submit to tests. (People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166.) The standard for determining if and when an arrest has occurred is whether a reasonable man, innocent of any crime, would have concluded that he was not free to leave considering the surrounding circumstances. (People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.) No formal declaration of arrest is necessary for an arrest to occur. People v. Preston (1990), 205 Ill. App. 3d 35, 563 N.E.2d 80.

In the case at hand, the defendant was transported to the police station by Officer Wright. At Wright’s request, the defendant performed the field sobriety tests. After failing them, Sergeant Reinhart informed the defendant that they would have to charge him with DUI. At this point, we find that a reasonable person in the defendant’s position would have concluded that he was not free to leave. Therefore, the defendant was under arrest for purposes of the summary suspension proceedings. It was after this point that Wright read the “Warning to Motorist” to the defendant and asked him to submit to chemical tests. The fact that the ticket was not issued to the defendant until he was leaving the police station is immaterial.

We are aware that this court’s previous decision in People v. Mannon (1991), 217 Ill. App. 3d 381, 577 N.E.2d 532, appears to conflict with our present opinion. However, we note that in Mannon, the defendant was originally arrested for and charged with various driving violations other than DUI. Nothing in the facts of that case indicated that the defendant was ever placed under arrest for DUI until after he refused to take a breathalyzer test. As such, we held that the defendant there had not been properly placed under arrest for DUI. Thus, Mannon stands in sharp contrast to the instant case.

We note that Mannon went on to interpret the above-quoted statute as requiring the issuance and service of a written citation as a prerequisite for a valid arrest for DUI. We find that portion of the opinion to be dicta, and we decline to follow it in this case.

We now turn to the defendant’s contention that the fact that he was issued a notice to appear is evidence that he was not under arrest. In support of his argument, the defendant cites section 107—12 of the Code of Criminal Procedure of 1963, which provides in pertinent part:

“Notice to Appear, (a) Whenever a peace officer is authorized to arrest a person without a warrant he may instead issue to such person a notice to appear.
* * *
(c) Upon failure of the person to appear a summons or warrant of arrest may issue.” (Ill. Rev. Stat. 1991, ch. 38, par. 107-12.)

The defendant asserts that the language of the statute indicates that the two acts of making an arrest and issuing a notice to appear are mutually exclusive. Therefore, he argues, since he was issued a notice to appear, he could not have been arrested. We disagree.

As discussed above, the crucial point to focus upon is when a reasonable person in the defendant’s position would have believed that he was not free to leave. Here, this happened when Reinhart told the defendant that he would have to be charged with DUI. The fact that the defendant was later issued a notice to appear which apprised him of his court date had no bearing upon whether the defendant was properly placed under arrest prior to being asked to submit to chemical tests.

Finally, the defendant asserts that he was not properly warned by the arresting officer of the consequences of a refusal to take the breathalyzer test. Specifically, the defendant complains that Officer Wright did not testify concerning the particular warnings that he read to the defendant. Additionally, he complains that the “Warning to Motorist” form which was filed in the trial court was not properly introduced into evidence at the hearing below.

In support of his argument, the defendant cites In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614. In Trainor, the court addressed this issue in an advisory portion of the opinion. The court determined that since the police must advise a driver of the consequences of refusing to take a chemical test (Ill. Rev. Stat. 1991, ch. 951/2, par. 2—118.1(b)(3)), the evidence should contain testimony that the officer read the “Warning to Motorist” form to the defendant as well as the properly introduced form itself. Based on Trainor, the defendant contends that the warning requirement was not met and, therefore, the summary suspension was properly rescinded.

We note that since the decision in Trainor, our supreme court has held that in a summary suspension hearing, the burden of proof is on the motorist to present a prima facie case for rescission. People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.

In applying this standard to the case at hand, we note that it was incumbent upon the defendant to present some evidence that he did not receive the proper warnings. The defendant, however, failed to present any evidence that the warnings were not read to him. He merely made the assertion in his petition to rescind, and, following the close of evidence, argued that he had not been properly warned. Officer Wright, on the other hand, testified that he had read the “Warning to Motorist” to the defendant. A copy of this document was properly filed with the court of venue and is contained in the record on appeal. Under these circumstances, we find that the defendant did not satisfy his burden of proof in the instant case. Therefore, we cannot sustain the rescission of the statutory summary suspension on this ground.

For all the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST HIGGINS, Defendant-Appellant.
    Third District
    No. 3—91—0318
    Opinion filed July 30, 1992.
    Rehearing denied September 25, 1992.
    Rita K. Peterson, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Ernest Higgins, appeals his conviction for aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12—4.2). The sole issue on appeal is whether his trial counsel rendered effective assistance. We find that he did and affirm.

The record shows that the information alleged that the defendant had committed the offense by knowingly shooting Matthew Wood with a handgun. At trial, defense counsel argued in his opening statement that the defendant had not been involved in the shooting.

The State then presented testimony from Matthew Wood, Je-rianne Wells, Ruthie Renee Wren (Ruthie Renee), Ruthie Denise Wren (Ruthie Denise), Maggie Wren, and Albert Billups regarding the events surrounding the shooting. Their testimony tended to establish that around September 19, 1990, the defendant fought with Billups and James Wren over a car stereo. As a result, the police took the defendant and Billups to jail.

On the evening of September 22, 1990, a number of people gathered at Albert Billups’ apartment. Ruthie Denise, Ruthie Renee, and Wells were at the house next door. At one point, the defendant stood across the street from Billups’ apartment and shouted at the people there. When Billups and two other men left the apartment to go to the store, the defendant taunted them. Later, Matthew Wood went out onto the balcony of the apartment, and the defendant yelled at him to come down.

When James Wren left to go to the store, the defendant followed him and called him names. The defendant and two other men then got into a car. When James returned, Maggie Wren left to call the police. Wood was seated in the front room of Billups’ second-floor apartment with his back to the window, when he testified he heard shots. One of the shots went through his left side and his right wrist. He did not see who had fired the shots.

On cross-examination, Wood stated that the entry and exit wounds in his side were on a fairly level plane. He also admitted that he had told a number of different versions of the shooting to people because he did not like discussing it.

The witnesses differed as to whether three or four shots were fired. Only two witnesses testified that they had seen the defendant fire any shots. Ruthie Renee testified that she saw the defendant take up a position across the street from Billups’ apartment, pull out a gun from his waistband, and fire a shot at Billups’ window. She testified on cross-examination that the defendant was standing between 912 Garfield and 842 Windom when he fired the first shot. She also admitted that it was dark out at the time of the shooting. Lastly, she conceded that she did not know if the two men with the defendant had also carried guns. Billups made the same admission on his cross-examination.

Wells testified that she saw the defendant fire the last shot. On cross-examination, she admitted that she did not see who had fired the other shots.

Ruthie Denise testified under cross-examination that prior to the shooting she had seen the defendant standing with his jacket open, but she had not seen a gun in his waistband.

Dr. Kevin Paulsen testified that he examined Wood following the shooting. He noted that Wood had an entry and exit wound in the left chest. In addition, Wood had a wound to his right wrist. On cross-examination, Paulsen admitted that if Wood had been shot from the left side, the bullet would have apparently entered at a higher spot on Wood’s abdomen than it would have exited.

Officer Mark Chittick testified that he investigated the scene following the shooting. He found evidence that only one bullet had gone through the apartment. On cross-examination, he stated that because of the bullet’s trajectory, he did not believe that someone standing at the comer of 912 Garfield could have fired that shot.

William Lininger testified on behalf of the defendant. He said that Wood had told him that he was standing on a street comer “minding his own business” when he was shot.

During closing arguments, defense counsel contended that the State had failed to prove the defendant guilty beyond a reasonable doubt. Counsel pointed out the inconsistencies and omissions in the testimonies of the occurrence witnesses. He also argued that the objective evidence showed that the shooting could not have occurred in the way the State’s witnesses had testified to.

Thereafter, the jury found the defendant guilty as charged. The defendant subsequently filed a post-trial motion. At the hearing on the motion, the trial judge found that defense counsel had rendered effective assistance. The judge noted that counsel had effectively cross-examined Officer Chittick and that the jury had deliberated for a long time.

On appeal, the defendant argues that there was some evidence that he acted recklessly. Consequently, he contends that his counsel was ineffective for failing to tender instructions on the lesser offense of reckless conduct. The State argues that defense counsel’s decision on instruction was a matter of trial strategy and that he had rendered effective assistance of counsel to defendant.

In order to establish ineffective assistance of counsel, a defendant must show both that his counsel’s representation fell below an objective standard of reasonableness and a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Competency of counsel is presumed, and alleged incompetency arising from a matter of trial strategy will not, by itself, support a claim of ineffective assistance of counsel. People v. Austin (1991), 215 Ill. App. 3d 323, 574 N.E.2d 1297.

It is well settled that decisions on a substantial group of matters which do not involve fundamental rights are within defense counsel’s control and are said to involve matters of trial strategy. (People v. Whittaker (1990), 199 Ill. App. 3d 621, 557 N.E.2d 468.) The decision to offer an instruction on a lesser included offense is one of strategy which has no bearing on competency of counsel. People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.

Here, the record clearly shows that defense counsel’s theory of defense was that the defendant had not committed the shooting. Based on the evidence presented, counsel could have reasonably elected to forego presenting a reckless conduct instruction in order not to weaken his position that the defendant did not commit the charged felony and should be acquitted. Consequently, we find that counsel’s decision was a matter of trial strategy and did not constitute ineffective assistance.

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

Affirmed.

SLATER and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS GREEN, Defendant-Appellant.
    Third District
    No. 3—91—0483
    Opinion filed August 21, 1992.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a jury trial, the defendant, Curtis Green, was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9—1). He was sentenced to a term of natural life imprisonment. He appeals.

At trial, Lenette Barth testified that she was the sister of the victim, Sandra Mason. Mason had lived with the defendant for several years but had ended the relationship. On November 18, 1990, Barth, her husband Bernard, and Mason went to a home that Mason had shared with the defendant. Mason needed to pick up some personal items, and Bernard wished to disconnect the telephone so that the defendant could not continue making harassing calls to Mason. The defendant was there when they arrived. He became angry and argued with Mason. Mason subsequently left.

Lisa Bowers testified that she worked with Mason as a nurse at the Good Samaritan Nursing Home in East Peoria. On November 18, 1990, at approximately 6 p.m., Bowers saw the defendant enter the nursing home carrying a knife. Mason, who had been standing near the door, screamed, “Oh, my God, help me!” The defendant ran up to Mason, hit her, pushed her against the wall, and started stabbing her. Mason fell to the floor and struggled to get up, but after the defendant stabbed her some more, she fell to the floor again. Bowers called the police and ran into a back room.

There were several other witnesses to the stabbing. None of them observed the beginning of the incident. However, after the stabbing began, one of the witnesses, Ronald Sarver, ran forward and hit the defendant with a lamp. The defendant stopped momentarily but then continued to stab Mason. Sarver also threw a chair at the defendant, yet the stabbing continued. Ultimately, though, the defendant stopped, walked over to the nurse’s station, and stood there until the police arrived.

East Peoria Officer Pete Fisher was one of the first to reach the scene. He found the defendant standing at the nurse’s station bleeding from his hands. He then found Mason lying in a pool of blood down the hall. The officer asked where the knife was, and the defendant told him that he did not know.

Other East Peoria officers also arrived after Officer Fisher. Officer Lee Mauschbaugh found the defendant to be slow moving but cooperative. He heard the defendant say, “I’m already dead, why don’t you shoot me?” Lieutenant Charles Morgan also heard the defendant ask police to shoot him.

Mason was taken from the scene and transported to the hospital, where she was declared dead. Dr. Mary Jumbelic, a forensic pathologist, performed an autopsy on Mason’s body. Dr. Jumbelic found 30 stab wounds, over 100 incised wounds, and 4 puncture wounds. The witness concluded that these wounds had caused Mason’s death.

The defense called several witnesses who indicated that the defendant had a good reputation for peacefulness and nonviolence.

Dr. Robert A. Chapman, a practicing psychiatrist, testified that he found the defendant to be illiterate and educationally disabled. Dr. Chapman concluded that the defendant suffered from a substantial disorder which would have impaired his judgment on November 18. However, the disorder did not rise to the level of insanity.

The defendant testified on his own behalf. He recalled that Mason and two of her relatives came to his house on November 17. He did not argue with Mason at that time. He later noticed that his telephone had been disconnected. Still later, after leaving the house and coming back, he noticed that his furniture was gone and the gas was off. He spent that night at an ex-girlfriend’s home and left the next morning. He smoked cocaine and rode around for some time before calling Mason at work. Mason said she was busy and did not have time to talk.

At approximately 6 p.m., he drove to the nursing home to talk to Mason. He walked into the nursing home, quickly found Mason, and tried to speak to her. Mason told him she was “prepared for him.” She ran to the nurse’s station, came back with a knife, and cut the defendant’s hand. The defendant grabbed for the knife and was able to take it away from Mason after they fell. The defendant then stabbed Mason with the knife several times. Afterwards, he waited for the police to come. The defendant insisted that he had not come to the nursing home to hurt Mason and that he was surprised when she came at him with the knife.

Following the defendant’s testimony, the State presented evidence in rebuttal.

Dr. James A. Thomas testified that following the incident, he treated the defendant for cut wounds to his hands. Dr. Thomas indicated that the locations of the defendant’s cuts were not consistent with the cuts someone would suffer when he grabbed a knife away from another person. Rather, they were consistent with the wounds someone would suffer when his hands slipped while stabbing someone.

Yolanda Richards testified that the defendant had a bad reputation for peacefulness.

Lisa Bowers and Officer Lee Mauschbaugh offered testimony regarding the defendant’s telephone conversation with Mason on November 18. The defense objected to the testimony. The court heard argument on the point and ultimately ruled that the evidence was admissible to establish Mason’s state of mind.

Bowers testified that on November 18 Mason received a call at the nursing home. Bowers heard Mason use the name “Curtis” and say, “Don’t bother me, leave me alone, and don’t call me at work.” Upon leaving the telephone, Mason told Bowers that the defendant had threatened her. Mason also told Bowers that she should call 911 if the defendant came to the nursing home.

Officer Mauschbaugh testified that he was called to the nursing home on the afternoon of the 18th. After he arrived, Mason reported to him that the defendant had threatened her in the course of a telephone call.

The jury subsequently found the defendant guilty of murder. At the sentencing hearing, the State presented evidence in aggravation. Teresa Porter and James E. Jordan recalled an incident in March of 1990 in which the defendant dragged Mason from a bar and hit her. The defense responded with testimony showing that the defendant was a good father and worker and that he was peaceful and quiet. The defendant also assumed the stand and denied dragging Mason from the bar and hitting her. The presentence investigation report disclosed that the defendant had previously been convicted of various traffic offenses and unlawful use of weapons.

The court then ordered the defendant to serve a term of natural life imprisonment. The defendant appeals.

The defendant first argues that the trial court erred in admitting the testimony of Bowers and Officer Mauschbaugh regarding the defendant’s threatening telephone call to Mason. The defendant contends that this testimony was inadmissible hearsay.

Statements which indicate the declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify, there is a reasonable probability that the proffered hearsay statements are truthful, and the statements are relevant to a material issue in the case. People v. Floyd (1984), 103 Ill. 2d 541, 470 N.E.2d 293.

In the instant case, the declarant was unavailable to testify due to her death. Accordingly, we find that the first requirement for admissibility was satisfied.

Turning to the requirement of the probability of truthfulness, we note that Mason was overheard talking to the defendant at the time the threats were allegedly made. Additionally, immediately after finishing her conversation with the defendant, Mason told Bowers that the defendant had threatened her. Finally, we note that Mason took the extra step of reporting the threat to the police. While it is possible that Mason might lie to Bowers, it is doubtful that she would have bothered to report the incident to the police had she not genuinely been threatened by the defendant. Accordingly, we find that there was a reasonable probability that the proffered statements were truthful.

We now turn our attention to whether the statements were relevant to a material issue in the case. We note that throughout the trial, the theory of the defense was that the defendant was guilty of second degree murder rather than first degree murder. The defendant contended that he was acting under a sudden and intense passion resulting from serious provocation by the deceased. By suggesting that Mason provoked the attack, the defendant made Mason’s state of mind a material issue. Additionally, the testimony in question was relevant because it tended to establish that Mason was so intimidated by the defendant that she sought the protection of a co-worker and the police. It implied that Mason would act defensively when confronted by the defendant rather than aggressively. Accordingly, we conclude that the testimony in question was not inadmissible hearsay.

The defendant also argues that the testimony regarding the threatening telephone call should not have been admitted because it violated the confrontation clauses of the both the Illinois Constitution (Ill. Const. 1970, art. I, §8) and the United States Constitution (U.S. Const., amend. VI). We disagree.

When a hearsay declarant is not present for cross-examination at trial, the confrontation clause normally requires a showing that he is unavailable and that the statement bears adequate indicia of reliability. Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531.

As we previously noted, the declarant in the instant case was unavailable because she was dead. Further, we find that the statements bore adequate indicia of reliability for reasons set forth in our discussion of the probable truthfulness of the testimony. Accordingly, we conclude that the admission of the statements in question did not constitute a violation of the confrontation clauses of either our State’s Constitution or the Federal Constitution.

The defendant’s final contention on appeal is that the trial court abused its discretion when it sentenced him to natural life imprisonment.

It is presumed that the trial judge considered any mitigating evidence before him. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.) Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial judge, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) When a reviewing court is requested to exercise its power to reduce a sentence, that power must be exercised cautiously and the court will not engage in mere judicial clemency. (People v. Clark (1980), 82 Ill. App. 3d 490, 402 N.E.2d 437.) A reviewing court cannot substitute its judgment for that of the trial court simply because it would have balanced the factors differently. People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

In the instant case, the court noted that the defendant was retarded and had children who might suffer as a result of the defendant’s incarceration. The trial court also noted that the defendant’s criminal history was not extensive. However, the trial court found that the instant crime was brutal, heinous, and indicative of wanton cruelty. The court further concluded that the defendant was likely to commit another crime. Based on the aggravating factors, we find that the sentence was not an abuse of discretion.

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

Affirmed.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF CHERYL A. ELLER, Petitioner-Appellant, and WALTER A. ELLER, Respondent-Appellee.
    Third District
    No. 3—91—0937
    Opinion filed August 21, 1992.
    Susan D. Lyons, of Andreano & Lyons, of Joliet, for appellant.

      Douglas W. Schlak and Annette Murrie, both of Wirt, Schlak & Lauter-bach, of New Lenox, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Cheryl A. Eller, appeals from the trial court’s order denying her continued rehabilitative maintenance. We reverse the decision and remand the cause for proceedings consistent with this opinion.

The record shows that Cheryl and the respondent, Walter A. El-ler, were divorced in 1989. The divorce decree provided in relevant part:

“That Walter shall pay to Cheryl through the Clerk of this Court the sum of $150 per week commencing Friday, August 11, 1989, and each and every Friday thereafter, as and for maintenance until August 7, 1991. Cheryl may make application to the Court in order to continue said payments beyond August 7, 1991, by filing a Petition no later than July 7, 1991. That Walter’s obligation to pay maintenance to Cheryl shall terminate on August 7, 1991, if a Petition is not filed by July 7, 1991. At the time of filing of the Petition, the Court shall make a determination as to whether Walter shall be obligated to continue to make maintenance payments to Cheryl beyond August 7, 1991. In any event, if the Petition to continue maintenance payments is timely filed pursuant to this paragraph, Walter shall be obligated to continue to make maintenance payments to Cheryl until an Order is entered by this Court terminating all maintenance obligations from Walter to Cheryl.”

Prior to July 7, 1991, Cheryl filed a petition seeking to continue the rehabilitative maintenance. She alleged that continued maintenance was necessary because she was suffering from a medical disability. Specifically, she said that she had double and triple vision.

A hearing on the petition was set for September 19, 1991. However, on that date the court, on its own motion, ordered a continuance because Cheryl did not plan to call a medical expert to testify regarding her condition. Although Cheryl explained that she could not afford to pay an expert to testify, the court nonetheless stated that she should get one because it was unlikely to award continued maintenance if she did not.

Thereafter, on November 4, 1991, Cheryl informed the court that she still did not have the funds to pay an expert to testify. She stated that her treating ophthalmologist would not testify until she paid her past-due bills and agreed to pay him an expert witness fee. She then asked for a continuance, which was denied.

Cheryl then testified that she has been unable to maintain steady employment or to complete her education because she has eye problems. Due to her cataract condition, at times she suffers from double and triple vision. She stated that since the divorce she has worked periodically for her father in his business and as a cleaning woman in homes. She has also obtained 17 credit hours at Joliet Junior College. However, her ability to both work and attend classes is affected by her inability to see well. She also testified that she has trouble driving and is usually driven around by her daughter Heather. Heather testified that she drives her mother wherever she needs to go.

We note that Heather’s remaining testimony corroborated Cheryl’s testimony. We also note that Walter does not contest the fact that Cheryl suffers from vision problems. However, he does contest her conclusion that her disability limits her ability to obtain employment.

Following the hearing, the trial court found that Cheryl failed to prove she could not get employment or be a full-time student. It held that “Cheryl Eller didn’t prove it, because Cheryl Eller chose not to produce expert testimony.”

On appeal, Cheryl argues that the trial court erred as a matter of law in finding that she was required to present expert testimony in order to prove she was suffering from vision disabilities. We agree.

Although we were unable to find a case on point, we note that this case is analogous to personal injury cases in which plaintiffs commonly testify as to their injuries. In such cases, we have consistently held that a plaintiff need not produce expert medical testimony to prove damages. See Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865; Wiacek v. Hospital Service Corp. (1973), 15 Ill. App. 3d 698, 304 N.E.2d 730.

Applying the above principle to the case at hand, we hold that the trial court erred in finding that expert medical testimony was necessary for Cheryl to prove her need for continued maintenance. In addition, we find that such testimony was unnecessary in light of the fact that Walter presented no evidence disputing Cheryl’s testimony regarding her vision problems. In conclusion, we hold that the trial court should have evaluated the evidence presented by Cheryl and her daughter on its own merits to determine if it was sufficient to meet Cheryl’s burden of proof.

Accordingly, we find that this cause should be remanded for a new hearing. We also find that since our decision puts the parties in the same position they were in prior to the trial court’s decision, Cheryl is entitled to continued maintenance. She should receive this support under the terms of the parties’ divorce decree until a trial court finds that it must be terminated.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for proceedings consistent with this decision.

Reversed and remanded.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE BOWMAN

text:
    THE CITY OF De KALB, Plaintiff-Appellee, v. THE TOWN OF CORTLAND, Defendant-Appellant.
    Second District
    No. 2—91—0562
    Opinion filed August 28, 1992.

      T. Jordan Gallagher, of Gallagher, Klein & Brady, of De Kalb, for appellant.
    Richard L. Turner, Jr., of Sycamore, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, the Town of Cortland (Town or Cortland), appeals from an order of the circuit court of De Kalb County granting the petition of plaintiff, the City of De Kalb (City or De Kalb), for disconnection of a parcel of land from Cortland. The Town asserts that the trial court erred because De Kalb did not present sufficient evidence to support its petition.

This case originated with a complaint filed by the treasurer/collector and county clerk of De Kalb County (No. 87—MR—74). The county officials sought a declaratory judgment as to whether the Town of Cortland or the City of De Kalb was entitled to recover tax revenues generated by a parcel of real estate located in the county and generally known as the Clara Kern Farm. According to the complaint, the parcel in question, which lay between Cortland and De Kalb, was annexed by Cortland in July 1981 and annexed by De Kalb in October 1986. Both municipalities claimed the right to receive tax revenues from the property.

In September 1989 De Kalb filed a petition for disconnection of the Kern property from Cortland (No. 89—MR—85). That cause was consolidated with the declaratory judgment action, and, in October 1989, De Kalb and Cortland entered into a settlement whereby they agreed, and the court ordered, that the Kern farm lay within Cortland’s territorial limits. The order also recited that, since the property was acquired by De Kalb for airport purposes, pursuant to section 11—103—1 et seq. of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11—103—1 et seq.) (a division of the statute pertinent to airports for municipalities of less than 500,000), the Town of Cortland had no authority to control, by zoning or regulatory authority, the means or methods of construction upon or improvements to or the uses of the property, to the extent that the property is used as part of the De Kalb Taylor Municipal Airport for airport and landing field purposes. (See Village of Schiller Park v. City of Chicago (1962), 26 Ill. 2d 278.) The County of De Kalb was then dismissed as a party, and the case ultimately proceeded to a bench trial on De Kalb’s petition for disconnection.

For many years Cortland went quietly about its business as a small rural community lying in a generally southwesterly direction from the City of De Kalb. Unincorporated territory separated the two communities. For the most part the Town had grown up along either side of the Chicago and Northwestern Railroad tracks, following a compact pattern of development which helped to retain a strong neighborhood atmosphere. Toward the end of the 1970’s, nearby communities began growing and expanding their boundaries toward Cortland—De Kalb from the west and Sycamore from the north.

In 1978 Cortland annexed a strip of land running northwest from the existing Town, along Loves Road, and a large parcel extending north and east from the Loves Road strip. Over the next 13 years Cortland continued to expand to the north and the west, from time to time annexing various parcels lying between itself and De Kalb or Sycamore. All of the annexations resulted from petitions for annexation by the landowners. By the time of the trial on De Kalb’s petition in 1991, Cortland consisted of a southeast section and a northwest section connected by a corridor paralleling Loves Road. (See figure No. 1.) The Clara Kern Farm property is located in the northwest section. See figure No. 1.

The City of De Kalb operates and maintains the De Kalb Taylor Municipal Airport. The east end of the airport, including an existing runway, extended into and partially bisected the Kern property at the time it was annexed by Cortland in 1981. (See figure No. 1.) In 1982, in accordance with a master plan for development of the airport, De Kalb became the owner of the 82-acre Clara Kern Farm. De Kalb now seeks to disconnect about 72 of those acres from Cortland. The portion of the property fronting on Loves Road, which forms part of the corridor connecting the northwest and southeast sections of Cortland, is not included in De Kalb’s petition.

De Kalb seeks disconnection pursuant to section 7—3—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7— 3—6), which provides that owners of land lying within a municipality may have such territory disconnected if the disconnection meets certain requirements. On appeal, Cortland focuses on two of the requirements: if the territory is disconnected “the growth prospects and plan and zoning ordinances *** of such municipality will not be unreasonably disrupted” and “the municipality will not be unduly harmed through loss of tax revenue in the future.” (Ill. Rev. Stat. 1989, ch. 24, pars. 7—3—6(4), (6).) The courts have liberally construed disconnection statutes in favor of disconnection when the statutory requirements are met, regardless of the petitioner’s purpose, the common theme being to permit disconnection absent hardship or impairment to the municipality. Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill. 2d 146, 154-55; Indian Valley Golf Club, Inc. v. Village of Long Grove (1988), 173 Ill. App. 3d 909, 915; In re Disconnection of Certain Territory (1984), 122 Ill. App. 3d 960, 965; In re Disconnection of Certain Territory from the Sanitary District (1982), 111 Ill. App. 3d 339, 347.

The burden of proving the statutory elements rests on the party seeking disconnection. (Village of Barrington Hills, 133 Ill. 2d at 155.) A trial court finding that the statutory requisites for disconnection were established is not to be disturbed unless it is clearly contrary to the manifest weight of the evidence. (Anderson v. City of Rolling Meadows (1956), 10 Ill. 2d 54, 58; First National Bank v. Village of Mount Prospect (1990), 197 Ill. App. 3d 855, 859; Sun Electric Corp. v. Village of Prairie Grove (1978), 59 Ill. App. 3d 608, 612; La Salle National Bank v. Village of Burr Ridge (1967), 81 Ill. App. 2d 209, 214.) The trial court found that De Kalb had met all of the requirements necessary to prevail in this action. Cortland contends that the findings on the two requirements it raises on appeal were against the manifest weight of the evidence and the trial court, therefore, erred in granting the petition for disconnection. We disagree.

Unquestionably, the statute focuses on the effect of disconnection on a municipality’s growth prospects and plan and zoning ordinances. However, the legislature called for a showing only that disconnection will not be “unreasonably” disruptive to the municipality. Thus, while the legislature recognized that any disconnection may have some disruptive effect, only those that are unreasonably so will be prohibited. (Village of Barrington Hills, 133 Ill. 2d at 158.) The evidence presented at trial adequately demonstrated that Cortland’s growth, planning and zoning would not be unreasonably disrupted by this disconnection.

Cortland does not dispute that the Kern site is now being used for airport purposes. Nor does it contest that, as long as the property is used for such purposes, the Town cannot regulate it through zoning. Hence, given its present use, the site is going to be an airport regardless of whether it is located in Cortland or De Kalb and regardless of what Cortland’s zoning ordinance indicates. Cortland’s zoning classification for the site, along with any restrictions on use due to zoning, is irrelevant.

Cortland can neither prohibit or regulate the airport nor restrict the property to any other particular classification. The presence of the airport, in turn, was taken into account in Cortland’s planning and zoning decisions for surrounding properties, according to the testimony of David Dockus, a former Cortland zoning administrator. Under these circumstances it is difficult to see how disconnection could disrupt the Town’s zoning ordinance. On the contrary, it appears that disconnection would have no effect at all either on the site itself or on the use of adjoining parcels located in Cortland.

Much the same argument applies to any planning ordinance Cortland may have. Cortland produced evidence to show that the primary thrust of its plan is to maintain the residential identity of the Town. To achieve this end its plan provided for the creation of a high density residential buffer zone, located on the Kern site but in the perimeter around the airport runway. This zone would shield the nearby low density residential areas from the airport noise and aviation activity. However, completely aside from any plan developed by Cortland, once De Kalb acquired the property and began using it for airport purposes, Cortland was powerless to control its development through zoning or to conform its use to the Town plan. Cortland could do nothing to bring about the particular buffer zone addressed in its plan, since it was proposed to be located on what is now the site of the airport.

Cortland suggests that De Kalb may at some time in the future put the property, or at least portions thereof, to other uses which would be incompatible with the zoning classifications on surrounding parcels located within Cortland. As we have said in the past, we will not speculate regarding future events. It is the state of affairs at the time of the hearing which controls, not the factual situation a litigant might desire. Indian Valley Golf Club, Inc. v. Village of Long Grove (1988), 173 Ill. App. 3d 909, 919.

The trial exhibits show that the Kern land is contiguous to Cortland on only two sides and is the site of a municipal airport. Ronald Naylor, De Kalb director of public works, testified that a fixed-base operator’s facility, a terminal building and two T-hangars have already been built on the site, in proximity to the existing runway. A third hangar location is ready and available, but, as yet, no additional hangar has been erected because of insufficient need or demand. Some parking-lot and runway extensions are in progress. Moreover, De Kalb has an existing master plan for development and expansion of the airport, as shown on the airport layout plan. (See figure No. 2.) De Kalb has already acquired the majority of the land needed to implement the master plan and is in the process of acquiring the remainder. Naylor testified that the land acquired by the City was intended to be used only for airport purposes. Residential structures located in the various acquisitions were being removed or relocated and the land returned to open space. Naylor estimated that about $10 million had already been spent on implementing the airport master plan, with $2 million of that provided by the City. Collectively, the evidence is clear that the land is being used for airport purposes and is not subject to any plans Cortland may have. It is equally apparent that Cortland has recognized the uniqueness and significance of the airport by taking it into account in developing land use plans for nearby property. Under the circumstances, we do not think disconnection of the site will disrupt Cortland’s plan.

As for the question of disruption of growth, as is evident from our discussion above, there could be no municipal growth on the Kern parcel. Consequently, disconnection would have no effect in terms of expansion into the site itself. With regard to the rest of the Town, David Dockus testified that, although Cortland had been initiating approximately 15 new residential housing starts per year for the previous four or five years, the Town had experienced a 5% decrease in population between the 1980 census and the 1990 census. There was evidence that Cortland sought to retain the site in order to maintain the residential character of the Town and that there were only a few vacant lots already platted and readily available for new home construction. However, the Town president, Kenneth Hetchler, and David Dockus gave testimony showing that there were areas available for residential development other than the subject site. Those areas were zoned residential and some were incorporated in Cortland, as reflected in the Town’s 1990 zoning map. Other areas, extensive in size, were not incorporated but were depicted on Cortland’s land use plan. The current zoning administrator also testified to substantial, although unplatted, room for additional single family homes in areas zoned residential and located near existing subdivisions which were already served by municipal water, sewer, and street lighting. Cortland was not providing any such services to the Kern site. Finally, De Kalb elicited the expert opinion of Michael Weber, a professional planner, who was currently working on development of a comprehensive plan for De Kalb. Weber opined that disconnection of the Kern property would not have any effect on the growth prospects of the remaining areas of incorporated Cortland.

Cortland attacks Weber’s testimony on the ground that it lacked an adequate foundation because Weber did not rely on specific, detailed information about Cortland itself. For example, Weber had not talked to Cortland officials, did not have a parcel-by-parcel survey of existing land uses in Cortland, and did not know Cortland’s geographical size or the number of housing units or housing starts in the Town. However, Weber’s testimony was directed at the effect of the airport, as shown in the airport layout plan (see figure No. 2), on the development of the surrounding area. Cortland lies in a portion of that area.

Weber’s credentials and expertise as a planning professional were not challenged by Cortland. The witness was personally familiar with De Kalb and the airport expansion because of his work on De Kalb’s comprehensive plan. In the course of his work Weber had reviewed De Kalb County’s existing land use plan for the area, Cortland’s own land use plan, Cortland’s zoning ordinance, and Cortland’s zoning map. He had studied aerial photos of the locality, including Cortland, and had driven through the general vicinity of the airport and through Cortland specifically, observing the land uses. Just recently, he had reviewed the 1990 census figures for Cortland and data regarding building permits in Cortland township, though not specifically for the Town of Cortland. All in all, despite some shortcomings, for its intended purpose Weber’s testimony rested on a sound foundation and was properly admitted by the trial court.

In summary, although Cortland focuses heavily on the limitations of Weber’s testimony, much other significant evidence was also offered: the expansion of the airport is already underway, and Cortland cannot control the use of the airport; Cortland’s rate of growth is, at best, unclear, i.e., although housing starts continue, population has decreased; Cortland already has or is planning to have substantial other, more amenable areas available for residential use, in directions away from rather than toward De Kalb and the airport. We are persuaded that the trial court’s finding that disconnection will not unreasonably disrupt Cortland's growth prospects, plan or zoning ordinances was not against the manifest weight of the evidence and will not be disturbed.

Cortland also challenges the trial court’s determination that, if the Kern parcel is disconnected, the Town will not be unduly harmed through the loss of tax revenue in the future. We find it significant that, just as the statute specifies that disconnection will be disallowed only if it “unreasonably” disrupts a municipality’s growth prospects, the statute also establishes that disconnection will be disallowed only when it “unduly” harms a municipality through the loss of tax revenue. The legislature thus recognized that some detriment to a municipality due to revenue loss is anticipated, and even inevitable, when property is disconnected. At the very least, the municipality will no longer receive the property tax generated by the parcel. Here, however, we do not believe Cortland will be “unduly” harmed by disconnection of the Kern site.

The trial court found, with support in the record, that Cortland could reasonably expect to receive just under $3,000 per year in property tax, sales tax, and utility tax from the parcel. The bulk of that amount—$2,144.64—would be in the form of sales tax. The sales tax figure was the City’s projection for all of 1990, based on actual airport sales receipts for eight months of 1990. De Kalb, rather than Cortland, had been receiving the sales tax revenues generated by the site, and Cortland had never included revenue from airport sales in its budget calculations. Hence, as De Kalb contends, Cortland could not be harmed by the loss of revenue it never had or relied upon in the first place. However, the statute speaks of the loss of tax revenues in the future, and we think it is more significant to measure the $3,000 against the current and prospective overall financial condition of the Town.

The evidence demonstrated that Cortland had experienced significant growth in assessed valuation and corresponding tax revenue as a result of recent annexations and new industrial and commercial development. In fact, although the corporate tax rate had decreased, tax revenue increased. Cortland’s current tax rate was set at .2672 cents, well below the maximum available rate of $1. The treasurer of Cortland testified that she expected virtually every fund in the township’s budget to show a positive cash balance at the close of the 1990-91 fiscal year, as had been the case in 1989 to 1990. She also indicated that Cortland had not committed to any present or anticipated deficit spending.

As for the Kern parcel, it had been assessed only as a leasehold because it was owned by a public body. The assessed value of the site, which was negotiated between the Illinois Department of Revenue, the De Kalb County supervisor of assessments, and the City of De Kalb, had been set at $64,198 and was estimated to be the same for the next five years. The negotiated valuation took into account both the decreasing value of the leasehold and increasing leasehold revenue. Ronald Naylor testified, without contradiction, that the City had no current plans for public improvements on the site which might increase the assessed value of the leasehold, for private improvements which might give rise to a property tax assessment, or for any activities that might increase sales tax revenue. In cross-examination Nay-lor indicated that, while aircraft were not currently being sold at the site, the fixed-based operator had the right to make such sales. Also, the sales of fuel, oil and aircraft parts had increased since the end of 1989 when the fixed-base operator had moved from a trailer at the west end of the runway to a new, permanent facility at the east end.

Cumulatively, the evidence demonstrates that, at the time of trial, Cortland was in sound and solid financial condition, even without the tax it should have been receiving from the airport sales. There was little to indicate that the Town’s fiscal health would be significantly affected by the disconnection. Only a nominal amount of property and utility tax revenue was currently being generated by the Kern parcel, and there was no evidence that the value of the leasehold would increase or that the use of the property would change and produce either a significant property tax assessment or a substantial increase in utility tax revenue. In this regard we observe, too, that Cortland evidently was not expending revenues to provide municipal services to the site. De Kalb had run both a water and a sewer line to the property and had installed driveway and parking lot lighting to service the airport facilities. While it was not altogether clear which jurisdiction was providing police protection, De Kalb had been providing at least some measure of fire protection. No testimony was offered to show that Cortland was providing any services to the Kern property.

In addition, while airport sales tax revenue had increased in 1990, the projected, increased figure was the one used by the trial court. It appears the increase occurred after the fixed-base operator moved to a permanent facility provided as part of the upgrading of the airport. The evidence did not point to any sources of further, meaningful increases. Under all these circumstances, we cannot say the trial court’s conclusion that Cortland would not be unduly harmed by loss of future tax revenue was contrary to the manifest weight of the evidence.

Cortland’s reliance on Desmond v. Regional Board of School Trustees, Malta Community Unit School District No. 433 (1989), 183 Ill. App. 3d 316, is misplaced. While De Kalb seeks to disconnect its property from a municipality, plaintiffs in Desmond sought the detachment of their property from a school district. Such a detachment was to be allowed only if the benefits to the annexing district and the detachment area clearly outweighed the detriment to the detaching district and the surrounding community as a whole. (Desmond, 183 Ill. App. 3d at 327.) Moreover, the petitioners’ burden of proof required them to show support of their petition with substantial evidence. (Desmond, 183 Ill. App. 3d at 332, citing Fixmer v. Regional Board of School Trustees (1986), 146 Ill. App. 3d 660, 664.) These rules appear to favor the maintenance of existing school districts and to discourage detachments. In contrast, the statute controlling disconnection from a municipality is to be liberally construed in favor of disconnection. (Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill. 2d 146, 154-55.) Hence, upon review the two proceedings are subject to distinctly different standards.

We denied the petition for detachment in Desmond even though the tax revenue generated by petitioner’s property seemed relatively small. Cortland emphasizes that it will lose far more, in relation to its general operating fund, than the school district in Desmond would have lost relative to its overall budget. However, we question first of all whether Cortland is comparing apples to apples. Cortland’s operating fund is not its entire budget, just as the total budget of the school district in Desmond did not consist solely of its operating fund. Aside from that question, we point out that the effect on tax revenues is not the only factor to be considered, in either a school detachment or a municipal disconnection. The loss of tax revenue will be given weight in accord with its consequences in either setting. As we expressed it in Phillips v. Special Hearing Board (1986), 154 Ill. App. 3d 799, a case relied upon in Desmond, “[a] financial detriment to the losing district alone *** is not a sufficient basis for denying a detachment petition unless the loss would be a serious one.” Phillips, 154 Ill. App. 3d at 803.

In Desmond we could not say that, for the particular detaching school district, the loss of funds was not serious in that it would not affect the district’s financial health and ability to meet the statutory standards for recognition. (Desmond, 183 Ill. App. 3d at 330-31.) In contrast, we are confident that Cortland’s current, sound financial health and viability as a municipality will not be endangered by the future loss of $3,000 in tax revenue. This is particularly so since more than $2,000 of that amount has not previously been available for Cortland’s use and will not be felt as a “loss” at all. Desmond is not persuasive on the loss of tax revenue issue as it occurs in this case.

For the reasons set forth above, the order of the circuit court of De Kalb County granting plaintiff’s petition for disconnection is affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.