author: JUSTICE WOODWARD

text:
    AMERICAN ELECTRIC CORDSETS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Monica B. Jankovic, Appellee).
    Second District (Industrial Commission Division)
    No. 2—89—0985WC
    Opinion filed June 7, 1990.

      William J. Catena and Ruth E. Stelzman, both of Catena & Stelzman, of Chicago, for appellant.
    Michael Lebovitz, of Michael Lebovitz, Ltd., and Ira A. Moltz, both of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The employer, American Electric Cordsets, appeals from the judgment of the circuit court of Du Page County which confirmed the Industrial Commission’s (Commission’s) decision to award compensation to claimant, Monica Jankovic.

The matter was heard by the arbitrator, who found that claimant failed to prove that her injuries arose out of and in the course of her employment. In its decision and opinion on review, the Commission reversed the arbitrator, finding that claimant’s injury arose out of and in the course of her employment. The Commission awarded 872/v weeks of temporary total disability (TTD) and $1,609.80 in medical expenses. It further found that this award would not bar compensation for claimant’s permanent disability, if any. The circuit court confirmed the Commission’s decision, and this appeal followed.

At the hearing before the arbitrator, claimant, a 40-year-old press operator, stated that, during her lunch break on June 25, 1985, she punched out of the employer’s factory and went to her car to get some change. The car was parked on asphalt pavement outside the company parking lot fence so that it would not be damaged by other employees opening their car doors into it. After several minutes in her car, claimant headed back to the factory, and after entering through the parking lot, she slipped and fell over backward, striking her head and back. At the time she was in the parking lot, she was about 30 feet from the factory door. Claimant was in such pain that she went back to her car and, instead of returning to work, drove to the office of her family physicians, Drs. Zecevic and Paunovic. The following day, claimant wrote a letter to Ann Marie Holt, the employer’s personnel manager, notifying the employer of her injuries.

Testifying for claimant, Eugeniusz Wojtanek, a general contractor corroborated claimant’s testimony that on June 25, 1985, she fell in the employer’s parking lot. Mr. Wojtanek stated that he was following a vending truck around noontime on the date in question. He parked his truck and walked to the vending truck, which was located inside the employer’s fence. After purchasing his lunch, Mr. Wojtanek saw claimant fall in the parking lot.

Ann Marie Holt, the employer’s personnel manager, acknowledged that employees parked both in the company lot and on a section of asphalt outside the fence, which surrounded the company parking lot. She also admitted that the employer maintained the company parking lot and the asphalt section outside the fence by clearing them of snow and keeping them clean. Ms. Holt further stated that she received claimant’s letter notifying the employer of her injury.

We note that in claimant’s petition for an immediate hearing and penalties, filed pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), she alleged that the condition of the asphalt upon which she fell was slippery and greasy. At no time did the employer dispute claimant’s allegation as to the condition of the asphalt.

The only issue on appeal is whether claimant’s injury arose out of her employment. The employer concedes that the accident occurred in the course of claimant’s employment. It is axiomatic that it is the province of the Commission to determine the credibility of the witnesses, weigh the testimony, and to attribute weight to be given the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401.) Decisions of the Commission will not be set aside unless they are contrary to the manifest weight of the evidence. Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236.

The employer relies primarily on Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, in support of its contention that claimant’s injury did not arise out of and in the course of her employment. In Caterpillar, claimant had completed working and walked out of the employer’s building in order to go to the parking lot. He proceeded along a sidewalk for about 30 feet and then stepped off a seven- or eight-inch curb onto the blacktop driveway. There was a modest cement slope, allegedly for drainage, between the curb and driveway. Claimant stepped off the curb, and his right foot landed partially on the cement incline and partially on the driveway, with the result that he twisted his ankle.

The claimant in Caterpillar testified that, at the time of his injury, the pavement was dry and in good condition. He did not fall, trip, or slip. Claimant merely stepped off the curb and twisted his ankle. The supreme court concluded that the only reasonable inference to be drawn was that the condition of the premises was not a contributing cause of claimant’s injury.

The employer argues that in this case the condition of the premises did not cause claimant’s fall. Claimant asserted in her section 19(b) petition that the parking lot was slippery and greasy which led to her fall. The testimony of Mr. Wojtanek (a disinterested witness) was as follows:

“Q. (MS. WEIN) At any time on June 25, 1985 did you see Mrs. Jankovic?
A. Yes.
Q. And where did you see her when you first noticed her?
A. I saw her fall in the parking lot.
Q. How far away from her were you at the time?
A. I don’t know, ten to 12 feet maybe.
Q. Could you describe that for us, please?
A. It looked like she fell backwards like she slipped on something.”

The employer offered no evidence to rebut the inference that the pavement’s condition caused claimant’s fall. From this record, the Commission could reasonably infer that the condition of the parking lot pavement led directly to her fall. In Caterpillar, the supreme court stated:

“In our opinion, the only reasonable inference which can be drawn from the evidence in the record is that the condition of the premises was not a contributing cause of Price’s injury.” Caterpillar, 129 Ill. 2d at 61.

Claimant argues Caterpillar is not controlling here. In Caterpillar, the supreme court emphasized that claimant merely stepped off a curb and twisted his ankle rather than slipping, tripping, or falling. The evidence in this case indicates that this claimant slipped on the surface of the parking lot, which was under the control of the employer. Claimant’s testimony, bolstered by that of Mr. Wojtanek’s, supports the Commission’s decision. See also Chicago Tribune Co. v. Industrial Comm’n (1985), 136 Ill. App. 3d 260, 264.

The employer also asserts that the parking lot was open to the general public, and, therefore, claimant was not exposed tq a risk greater than that of the general public. The record does not support his contention. There was no evidence to the effect that members of the public regularly used the the employer’s lot. The employer relies solely on Mr. Wojtanek’s testimony that he was attending a vendor’s truck which was parked in the the employer’s lot. The employer ignores the testimony of Ann Marie Holt, who stated that the parking lot was maintained and cleaned by the employer. From the evidence, the Commission could reasonably infer that the the employer’s parking lot was not open to and regularly used by the public.

For these reasons, we conclude that the Commission’s decision, finding the accident arose out of and in the course of claimant’s employment, was not against the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court.

Affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE STATE OF MINNESOTA ex rel. KATHLEEN M. GULLEY, PlaintiffAppellee, v. EARL NORMAN CALDWELL, Defendant-Appellant.
    Second District
    No. 2—89—0766
    Opinion filed June 1, 1990.

      James E. Caldwell, of Caldwell & Black, of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Miriam C. Goldsmith, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, the State of Minnesota ex rel. Gulley, initiated the present paternity suit in the circuit court of Lake County, Illinois, on June 6, 1986, pursuant to the uniform reciprocal child support laws of both States. The State of Minnesota on behalf of relatrix, Kathleen M. Gulley, sought to establish that defendant, Dr. Earl Caldwell, was the father of April Gulley (d.o.b. April 27, 1984) and to require defendant to provide current child support and reimbursement for public assistance previously given for the benefit of the child.

After a jury trial, the trial court entered judgment on the jury’s verdict finding that defendant was the natural father of April. The trial court reserved jurisdiction regarding issues of child support, costs and visitation. Defendant’s premature appeal was dismissed by this court in an order filed April 27, 1989. Subsequent to the trial court’s orders for child support dated June 30, 1989, defendant appealed raising three issues, which we have condensed into two issues: (1) whether there was insufficient evidence, including the results of genetic blood testing, to support a finding of paternity; and (2) whether defendant was improperly cross-examined regarding his failure to cooperate in submitting to court-ordered blood tests. We affirm.

At the outset, we note, for the second time, the inexcusably poor quality of defendant’s brief, which does not comply with the requirements of our supreme court’s rules. Defendant’s appeal was initially dismissed for lack of jurisdiction by order of this court wherein defendant was admonished regarding the inadequacy of his brief. Defendant again tests the patience of this court. Defendant’s present brief contains a statement of facts that is argumentative and has inadequate citations to the record. The argument section also contains irrelevant arguments, malapropisms, and contentions unsupported by citation to the record. (See 113 Ill. 2d Rules 341(e)(6), (e)(7).) Additionally, defendant provides no appendix to his brief (see 107 Ill. 2d R. 342(a)). Although this court has inherent authority to dismiss the appeal for noncompliance with the rules, it is within our discretion to consider the merits of the appeal, and we do so here in view of the proper presentation of the facts in plaintiff’s brief. See Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79.

According to the testimony adduced at trial, relatrix, Kathleen M. Gulley, resided in Chicago in 1972 when she first sought medical advice from defendant, Dr. Earl Caldwell. Kathleen consulted defendant several times in 1973 and then moved away from Chicago. She had no further contact with defendant until she returned to Chicago for her cousin’s wedding scheduled for August 20, 1983.

On August 18, 1983, Kathleen stopped by defendant’s office to renew her acquaintance with him. Kathleen was staying at the home of her mother, Doretha Latimore, and it was there that defendant stopped to pick up Kathleen on August 18 for a dinner date. At the conclusion of their date, Kathleen and defendant agreed to meet again the next evening, August 19, and defendant dropped Kathleen off at Latimore’s home. On August 19, Kathleen went to defendant’s office late in the afternoon and remained there until somewhere between 10 and 11 p.m., first talking and then later engaging in sexual intercourse with defendant. Kathleen and defendant went out for a late night snack before defendant dropped her off at her mother’s home. Kathleen did not see defendant again socially after August 19, nor did she engage in further sexual intercourse with him.

Kathleen left Chicago on Sunday of the weekend after the wedding. In the third week of September 1983, Kathleen began to suspect that she was pregnant, and this pregnancy was later confirmed after medical examination. The pregnancy resulted in the birth of April Atwanda Gulley on April 27, 1984, after a 38-week gestation period. Kathleen believed that defendant was "April’s father because she did not engage in sexual intercourse with any other man during the 11-month period prior to April’s birth.

Kathleen further testified that she contacted defendant several times by telephone and by letter during the pregnancy to discuss it with him. Kathleen stated that defendant denied his paternity of the child throughout all conversations but the first. Shortly after April’s birth, Kathleen wrote defendant to notify him but did not receive any response from him. Subsequently, Kathleen spoke with defendant once by telephone and later met with him twice in his office to discuss the child. Defendant refused Kathleen’s suggestion that blood tests be taken.

On December 16, 1986, relatrix and the minor child appeared at the University of Minnesota Hospital and submitted to blood tests.

Doretha Latimore, Kathleen’s mother, testified that Kathleen was staying with her in August 1983 when she came home for her cousin’s wedding. Latimore met defendant at her home when he came by to call on Kathleen.

Plaintiff called defendant as an adverse witness for the limited purpose of establishing that defendant submitted to a court-ordered blood test on June 9, 1987.

Beverly Pohl testified for the plaintiff as a qualified expert witness in the area of genetic blood testing to establish paternity. Pohl reviewed all of the documents of Genetic Testing Institute of Atlanta, Georgia, related to the results of the blood tests conducted on blood samples drawn from Kathleen, April, and Earl. Based on her review of the documents and the chain of custody of the samples, Pohl opined that defendant could not be excluded as the natural father. Given certain assumptions, including the occurrence of actual intercourse during the period of conception, Pohl stated that the probability of paternity was 99.67%.

On cross-examination, when defense counsel tried to establish that the test documents were hearsay and that Pohl had not personally conducted the tests, the trial court gave a limiting instruction to the jury regarding the weight of opinion testimony and instructed the jury that the documents themselves were not substantive evidence.

Defendant testified that Kathleen did come to his office in August 1983 while he had other patients in the office. He had regular office hours between 1 p.m. and 8 p.m. on a daily basis. He denied that Kathleen was in his office on Friday August 19 or that he had sexual intercourse with her. Defendant denied having conversations with Kathleen after the birth of the child but later acknowledged receiving a letter from Kathleen in 1984 notifying him of the birth of the child.

Voncile Lockhart, defendant’s office manager, testified regarding the usual procedures and hours of operation of defendant’s office. She recalled Kathleen’s visit on August 18, 1983. She did not see Kathleen in the office on August 19. She stated that defendant regularly took her home after the office was closed, usually between 8 p.m. and 8:30 p.m.

Defendant was qualified as an expert witness and was allowed to testify only in the limited area of blood-testing procedures and protocol but was not allowed to testify regarding the interpretation of the results of HLA blood testing. Defendant’s testimony essentially challenged the timing of the tests, urging that they must all be made at the same time to be reliable. This appeared to contradict Pohl’s view that the tests need not be conducted contemporaneously.

On re-cross-examination, defendant acknowledged that he failed to appear for court-ordered testing on December 17, 1986. When defendant was asked whether he was ordered to appear for a blood test on June 9, 1987, under the threat of penalty, defense counsel objected that the order spoke for itself. Since the order was not offered into evidence, the trial court overruled the objection. On redirect examination, defendant explained that he had refused to take the test until the mother and daughter were brought to Chicago to take the test at the same time. He acknowledged that the State of Minnesota refused to bear the cost of the travel expenses for that purpose.

After the jury returned a verdict finding defendant to be the father of April, the trial court entered judgment. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied on March 28, 1988. The motion only generally alleged that the evidence was insufficient to support the verdict. Defendant has not provided this court with a report of that proceeding.

On appeal, defendant contends that the judgment is against the manifest weight of the evidence. Defendant first argues that, because the testimony of plaintiff conflicts with that of defendant, one effectively cancels the other. Defendant misunderstands the quantum and nature of proof required to show paternity. In a paternity case, the burden is on the plaintiff to establish paternity by a preponderance of the evidence, and the testimony of the plaintiff alone, if believed, is sufficient to support a finding of paternity. (Virzint v. Beranek (1983), 119 Ill. App. 3d 97, 99.) The determination of a preponderance of the evidence does not depend solely on the number of witnesses testifying for each side but, rather, is a function of the weight to be accorded to their testimony; this in turn depends on the credibility of the witnesses. (People ex rel. Lyke v. Rucker (1971), 2 Ill. App. 3d 113, 115.) The credibility of the witnesses and the weight to be afforded their testimony are for the trier of fact, and its findings will not be reversed unless they are clearly erroneous. (Watkins v. Martin (1983), 115 Ill. App. 3d 417, 422.) The trier of fact may regard all the circumstances proved at trial and may give credence to one witness or the other if the facts and circumstances warrant it. Lyke, 2 Ill. App. 3d at 115.

The alleged intercourse in a paternity case is frequently carried on clandestinely, and the complainant may be forced to prove her case by circumstantial evidence including testimony regarding the time, place, opportunity, and the relationship of the parties. (People ex rel. Dalman v. O’Malley (1963), 43 Ill. App. 2d 95, 99.) In the present case, relatrix testified that she met socially with defendant on August 18 and 19, 1983, and that she engaged in sexual intercourse with defendant on August 19 in his office. April was bom on April 27, 1984, after a pregnancy of 38 weeks’ duration. Relatrix stated that defendant was the only man with whom she had sexual relations during the probable period of conception. Doretha Latimore, the mother of relatrix, testified that she was introduced to defendant during the period of time in which the meetings with defendant took place. Defendant admitted that he had met with relatrix on August 18, 1983. He denied any further social meetings or any sexual intercourse with relatrix. Defendant’s office manager corroborated his testimony regarding the usual office routines in place at that time. The manager acknowledged the presence of relatrix in the office on August 18 but denied that relatrix was there on August 19.

We believe that the detailed testimony presented by plaintiff, which included the time, place and circumstances surrounding the alleged intercourse and the birth of the child, was sufficient to support the jury’s verdict independently of the expert’s opinion. Contrary to defendant’s contention, plaintiff’s testimony was not “cancelled” merely because it was contradicted. Defendant wrongly argues that, because of this “cancellation,” the only remaining evidence was the result of the paternity tests and this evidence was not conclusive of paternity because the probability of paternity rests on the assumption that intercourse actually took place. Based on plaintiff’s testimony, the jury was entitled to believe that intercourse did, in fact, take place. The weight assigned to the expert’s opinion was for the jury to determine in addition to the weight assigned to the testimony of the parties themselves. (See Aroonsakul v. Flanagan (1984), 124 Ill. App. 3d 626, 632.) It is clear that the test results were not the sole basis of the jury’s verdict. Defendant has not shown that the verdict of the jury was clearly erroneous, and we will not reverse on that basis.

Defendant next argues that, during re-cross-examination, plaintiff’s questions regarding defendant’s refusal to appear for court-ordered blood tests were inflammatory and constituted inadmissible evidence. (See People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 510; Ill. Rev. Stat. 1981, ch. 40, par. 1401 (repealed by Pub. Act 83—1372, §28, eff. July 1, 1985).) Although not brought to our attention by the parties, we first observe that the statutory rule regarding the inadmissibility of a defendant’s refusal to take a paternity test has been repealed and has been replaced by section 11 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2511). (See People ex rel. Brown v. Bloodworth (1987), 155 Ill. App. 3d 901.) We believe that the issue of the inadmissibility of a party’s refusal to submit to blood testing is mooted by the deletion of the relevant language from the Act. (See Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 538.) Second, the record shows that defendant did not specifically object to the line of questioning regarding his refusal to appear for blood tests. Rather, defendant merely objected to its repetition. Defendant further participated in the line of questioning by attempting to explain his reasons for the refusal. He also failed to specify this basis for error in his post-trial motion. We therefore find this issue not only moot but also waived, and we will not consider it. See Rexroat v. Devine (1987), 157 Ill. App. 3d 284, 288.

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

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD ROBERTSON, Defendant-Appellant.
    Second District
    No. 2—88—0874
    Opinion filed June 5, 1990.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Richard L. Salon, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Donald Robertson, was convicted of robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—1) following a bench trial. He was sentenced to seven years’ imprisonment with credit for time served. He appeals, contending that the State failed to prove his guilt of the charged offense beyond a reasonable doubt because of the unreliability of the testimony of the single identification witness. Defendant also contends that the State committed prejudicial errors in its numerous failed attempts to impeach defendant’s alibi witnesses. In view of the State’s repeated failure to perfect its impeachment of several defense witnesses, we reverse the conviction and remand the cause for a new trial.

The following facts were adduced at the bench trial on March 23, 1988. The complaining witness, Selma Dodson (Dodson), testified that on December 30, 1987, she was employed at a Checker gas station located at 619 North York Road in Elmhurst, Illinois. At approximately 8:20 p.m. two men walked in and asked for a water bucket. Dodson gave the men a bucket and told them they could fill it outside. The men left the station for a while and then returned. The first man walked behind the counter, and the second man, whom Dodson identified in court as defendant, stood in front of the cash register area. The first man told Dodson that they were going to rob her and instructed her to open the cash drawer and stand back. The second man placed his hand in his coat pocket and said that, as long as Dodson cooperated, nobody would be hurt. Dodson opened the drawer, and the men took a sum of cash, later determined to be $99.

After Dodson had surrendered the money, the robbers told her to go into a back room, and she complied. When she heard the robbers leave, Dodson emerged from the back room and ran outside the station, where she encountered a customer. She told the customer that she had been robbed and asked whether he had seen the men or their license plate number. She saw the robbers’ car driving away from the station and making a right-hand turn. She described the vehicle as dark colored, possibly black or dark blue, and said that the car had two or three individual taillights on either side of the rear end mounted above the place for the license plate. She did not see a license plate and could not identify the make or model of the car.

Dodson said that police officers arrived within minutes of the robbery, and she assisted them in preparing composite sketches of the two offenders. She identified the two sketches in court. She said that the police officer preparing the sketch of the second robber asked her specifically whether the second robber had a mustache, and she told the officer that he did not. Dodson’s further description to the police specified that the second robber had long, black, greasy hair, a fair complexion, and a medium to slender build. She told the officer that the second robber wore a blue nylon jacket and blue jeans and spoke with a southern accent. She described the first robber as having sandy brown hair, a full and scraggly mustache, and wearing a tan knit cap and a green nylon arctic parka with a hood. Both sketches of the two offenders described their vehicle as a 1976 or 1977 Chevrolet Malibu which was dark or possibly black in color.

Testifying for defendant, Michael Cushing stated that he went to the Checker gas station for a pack of cigarettes on the night in question. As he approached the station, he saw two men leave and get into a car. Then the girl in the gas station came running out and told Cushing that she had just been robbed. Cushing said that he was bewildered and spun around to look at the men’s car. He described the car as a very dark blue or black Chevrolet Chevelle or Malibu. He thought the car had an Illinois license plate but could not make out the number. He said the car lights were not on, but he described the rear end of the car as resembling a Chevrolet Malibu because of its sloping back end and the round body contour as well as the thin taillight which ran across the rear of the car.

Cushing testified that he was a route salesman for an auto parts company. He stated that he works on cars and restores them in the evenings and has done so for approximately 13 years. He also stated that he used to own a 1975 Chevelle. On cross-examination, Cushing admitted that he was completely unable to identify the men but was certain of his description and identification of the make and model of the car.

Officer Paul Carney of the Elmhurst police department testified that at about 3:15 a.m. or 3:50 a.m. on December 31, 1987, he was on a routine patrol in the area of York Road and Crestview in Elmhurst. He saw a dark car proceeding at a slow pace right in front of the Checker station. The car continued eastbound onto a side street and then pulled into a private driveway at 567 Indiana, where it remained for several minutes. Carney approached the car and observed four occupants, three men and one woman. The driver exited and Carney spoke with him. Carney identified defendant as the driver.

Carney testified that he inquired as to the occupants’ activities, and the driver responded that his passenger thought he knew a girl who lived at that residence. Carney asked the driver for identification, and the driver said he had none; however, the driver stated his name was Clifford Robertson and provided Carney with a birth date. Carney returned to his squad car to call in the driver’s name and birth date. While he was waiting for a radio response, he noticed that the driver bore a resemblance to an “identisketch” of a robbery suspect he had picked up when he had gone on shift earlier in the evening. Carney returned to the car and told the driver he was under arrest for having a suspended driver’s license and informed the driver that he would be questioned in connection with a robbery. Carney identified a photograph of the driver’s car which depicts a blue 1976 Dodge Dart with no license plate.

Gary Fuller, another Elmhurst police officer, testified that he performed an inventory of the Dodge Dart at police headquarters. He found a brown wallet under the front seat on the passenger side of the car containing $350 in currency and no identification. Fuller stated that the car and the wallet, including its contents, were returned to their owner, Ed Schroader. Fuller also testified that the car contained numerous items of clothing, two overnight bags, toys and an army helmet. He did not see any blue or green nylon parkas in the car.

Michael Lullo, a third Elmhurst police officer, questioned defendant at around 5 a.m. at the police station. Lullo advised defendant that he was a suspect in a robbery. Defendant denied having committed a robbery and told Lullo that he had been in his parents’ home in Carpentersville between 3 p.m. and midnight with his parents and others. Defendant said that he went to Elgin at midnight to pick up his cousin, Charles Schroader. Defendant told Lullo that Schroader lives in Addison. He also stated that he and his cousin were attempting to get on an expressway to head to Kentucky when they got lost in Elmhurst. Defendant initially told Lullo that he had pulled into the driveway on Indiana because he thought he knew a girl at the residence. He later told Lullo that the reason he had pulled into the driveway was because he did not have a driver’s license and wanted to avoid Officer Carney.

Charles Schroader testified for defendant. He stated that he went by the name of Ed or Eddie and he is defendant’s cousin. He said that he was employed in Elgin on December 30, 1987, and that he owned a 1976 Dodge Dart. He testified that his car did not yet have license plates but did have a registration sticker. Schroader said that defendant had dropped him off at work that day and later picked him up at approximately 1:10 a.m. Schroader, defendant and a friend went to Schroader’s apartment in Addison where they picked up Schroader’s personal belongings and his wife Janet. They then left for Kentucky.

At the time of defendant’s arrest, defendant had been driving Schroader’s car, and Schroader had been riding in the front passenger seat. At this time, the police asked Schroader for identification, which he supplied from his wallet. His wallet, which contained $350 cash, remained in the car at the time the police towed the car away. Schroader stated that he had been paid the day before defendant’s arrest and the $350 were the proceeds from his pay. The police later returned to Schroader his wallet and money.

Sometime after defendant’s arrest, Selma Dodson went to the Elmhurst police station to view a lineup in connection with the robbery. While waiting at the station, she saw defendant and another man, both in handcuffs, in the custody of Elmhurst police officers. Dodson testified, “I figured I shouldn’t see that, so, I went straight to the rest room, and started wondering, you know.” Approximately one hour later, Dodson identified defendant as the second robber from the December 30 robbery.

At trial, Dodson described the second robber as about 5 feet 8 inches tall, wearing a blue parka, jeans and gloves. She stated that he had longer, blackish, greasy hair and a light mustache. She identified defendant in court as this individual. She testified that she had not told the police about defendant’s mustache because it must have slipped her mind. She admitted that seeing defendant prior to the lineup made her more cautious in her identification at the lineup because:

“I knew I shouldn’t have seen these guys before and it made me start to wonder if I am. picking him out because I saw him with the police officers or if I was picking them [sic] out because he was the one, and in my opinion, I picked him out because he is the one because the second individual that was with him [in the police station lobby area], there was no way he was involved in it.”

Dodson stated that she was certain that defendant was involved in the robbery.

Defendant’s mother, Anna Robertson, testified that she lives in Carpentersville, Illinois, with her husband, three foster children, defendant, and defendant’s son. She stated that she saw defendant at 3:30 p.m and again at 7 p.m. on December 30, 1987. That evening, various family members, including defendant and his friend, Dave Halbert, were watching a movie about a white supremacy group on HBO entitled “Into the Homeland.” Mrs. Robertson said that the movie began at 7 and ended at 9 p.m. She testified that shortly after the movie began, defendant left the house to go to a nearby store. He was gone for 10 to 15 minutes. Defendant returned and left again to go to a nearby McDonald’s restaurant.

Mrs. Robertson also stated that defendant left the house at approximately 8:15 to visit a neighbor and was gone for 15 to 20 minutes. After the movie was over, the family discussed the movie for a time, and defendant said he would lie down to rest before he left for Kentucky. Mrs. Robertson said that defendant left at 11:17 p.m.

On cross-examination, Mrs. Robertson denied telling an investigator that defendant had left at 11:15 p.m. She also denied telling the investigator that defendant was gone between 8 and 9 p.m to go to a liquor store. She denied telling the investigator that defendant went out to McDonald’s a second time. Further, she did not confirm that she had told the investigator that her son was a white supremacist thinker and had been aware of the organization depicted in the movie prior to having seen the movie.

John Richter testified that he lives three doors away from the Robertsons in Carpentersville, Illinois. He testified that he and defendant were friends and defendant stopped by his home at approximately 8:15 on December 30, 1987, and stayed for 25 minutes. On cross-examination, Richter testified that he was watching the 8 o’clock movie on channel seven but could not recall the movie’s title. The prosecutor suggested the title “Into the Homeland,” and Richter agreed. On redirect examination, Richter admitted he was not positive of the name of the movie.

Defendant took the stand and testified that he lives in Carpenters-ville with his parents and his son. On December 30, 1987, he borrowed his cousin’s car. That day, he took Schroader to work in Elgin and returned to Carpentersville at about 3:30 p.m. That evening, while at home, he watched a television movie entitled “Into the Homeland” with Dave Halbert. The movie began at 7 p.m. and was about a white supremacy group. He did not find the movie interesting and left the house to get some beer. After returning, he left again to go to a McDonald’s restaurant. Still later, he left the house to visit John Richter, a neighbor. At approximately 11:30 p.m., defendant and Dave Halbert left the house to buy another case of beer and to pick up Schroader at work in Elgin. They arrived at Schroader’s place of employment at about midnight.

Defendant testified that he was familiar with the area of Addison, Illinois, where Schroader lived. However, at the time he encountered the police, he was lost and had been trying to find the expressway to go to Kentucky. Defendant further stated that when the police officer approached him at approximately 3 a.m., he gave the officer his brother’s name because he himself did not have a driver’s license. He was unaware at the time that his brother’s license had been suspended.

On cross-examination, the following exchange took place between the defendant and the prosecutor:

“Q. Did you spend the night at Charles Schroader’s apartment on December 29th, yes or no?
A. Yes.
Q. And if Schroader were to come into court and say that you didn’t spend the night and that you arrived at his apartment at 12:00 o’clock on December 30th, would that be a lie on the part of Mr. Schroader, yes or no?
A. I wouldn’t say it is a lie. I would say — well, I would say ask him.”

In rebuttal, the State called Schroader, who testified that he believed defendant had spent the night at his apartment on December 29.

The evidence closed with the admission of certified copies of defendant’s convictions of burglary, theft and obstructing justice. Both sides presented closing argument. In rebuttal argument by the State, the prosecutor discounted the credibility and reliability of defendant’s alibi witnesses due to alleged inconsistencies and contradictions in their testimony. With regard to Mrs. Robertson, the prosecutor argued, “there were inconsistencies in her testimony. There were certain things that she said today that when she spoke with the investigator ***, she did not tell him.”

The trial court found defendant guilty, stating specifically that defendant’s alibi witnesses were lacking in credibility and “[t]heir factual basis is not consistent.” The court also noted that Dodson, the single witness able to identify defendant, had had a good opportunity to observe the robbers at the time of the crime; and she had subsequently identified defendant at a lineup and in open court.

Defendant filed a timely motion for a new trial in which he alleged, inter alia, that Dodson’s original identification of defendant was tainted because she saw defendant in police custody prior to identifying him in the lineup. Defendant also alleged that his alibi witnesses were unimpeached and unrebutted and that the trial court had erred in allowing the State to question defendant’s witnesses impeaching questions and then failing to perfect the attempted impeachments. The court heard both sides’ arguments and ultimately denied defendant’s motion for a new trial. The trial court later sentenced defendant to seven years’ imprisonment with credit for time served.

Defendant raises two issues on appeal: (1) whether the defendant was proved guilty beyond a reasonable doubt, and (2) whether the defendant was denied a fair trial by improper impeachment of defense witnesses.

As to the first issue, the defendant argues that Selma Dodson’s identification of the defendant is untrustworthy and must be discounted. Dodson testified that she told police the defendant had long, black, greasy hair and no mustache. Defendant argues the photograph of him admitted at the hearing on defendant’s post-trial motion shows that he had a prominent mustache and also reveals that his hair is not black or greasy.

Dodson also described her assailants as wearing parkas, jackets equipped with a “fuzzy” hood. The defendant allegedly wore a blue parka. Upon the defendant’s arrest, however, police did not find such a coat.

Dodson described defendant’s car as dark colored. However, the car defendant was driving at the time of his arrest was bright blue. That car was identified as a 1976 four-door Dodge. An after-occurrence eyewitness identified the getaway car as a 1975-77 Chevrolet dark blue or black.

Defendant contrasts the uncertainty of the above proofs with the testimony of his mother and Dave Richter, that at the time of the robbery defendant was in or near his Carpentersville home. He argues that because of this he was not proved guilty beyond a reasonable doubt of robbery.

The People point out that the testimony of Selma Dodson, that she had an adequate opportunity to observe the robber and her in-court identification of the defendant as that man, was positive, credible and reliable.

The People argue that the slight variance as to defendant’s actual appearance does not require reversal of defendant’s conviction, nor does the slight discrepancy in the identification of the motor vehicle require reversal.

In all criminal prosecutions the due process clause requires that the State has the burden of proving the defendant’s guilt beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072-73.

In weighing the sufficiency of the evidence in a criminal case, the finding of the trier of fact will be affirmed unless the court of review can form a reasonable and well-founded doubt as to the defendant’s guilt. People v. Smith (1977), 52 Ill. App. 3d 583, 587.

It is settled that a single positive and credible witness, who had an ample opportunity to observe the accused, is sufficient to support a conviction even though such testimony is contradicted by the alibi testimony of the accused. People v. Jones (1975), 60 Ill. 2d 300; People v. Rosa (1981), 93 Ill. App. 3d 1010, 1016.

In this case, the trial court was faced with two conflicting versions of the incident. The State’s witness identified the defendant as the robber and placed him at the scene of the crime. The defendant offered evidence of an alibi. The trial court was required to decide which of the two versions was entitled to greater credibility. The trial court concluded that the People’s evidence proved the defendant guilty beyond a reasonable doubt. We cannot say the trial court was in error. People v. Beasley (1977), 54 Ill. App. 3d 109.

Next, the defendant contends he was denied a fair trial by improper impeachment of defense witnesses. He contends that the cross-examination of the defendant and defense witnesses was characterized by repeated questions suggesting inconsistent utterances, misconduct and racism. He suggests that since the cross-examination was not perfected or was irrelevant, the defendant was denied a fair trial.

The trial court rejected defendant’s alibi evidence because it found that his witnesses were lacking in credibility and their testimony was not consistent. We determine that the prosecution’s improper impeachment technique materially contributed to these findings. There is no question that the State erred repeatedly in its attempts to impeach defendant’s witnesses. In People v. Olinger (1986), 112 Ill. 2d 324, 341, our supreme court stated, “[i]t is improper for the prosecutor to ask a witness questions for purposes of impeachment unless the prosecutor is prepared to offer proof of the impeaching information.” In the instant matter, the prosecutor insinuated that Mrs. Robertson had made several statements to an investigator which she either denied or could not recall. The State never offered the testimony of the investigator or his report to complete its impeachment of this witness. The State similarly failed to impeach defendant concerning his whereabouts on December 29, 1987, and failed to impeach Schroader on several points. Additionally, the State attempted to impeach Schroader by eliciting testimony concerning his prior arrests. It is well established that a judgment of conviction may be used for impeachment purposes but evidence of arrests, indictments, or the actual commission of crimes may not be used. People v. Charleston (1985), 132 Ill. App. 3d 769, 775.

Admittedly, the trier of fact is obliged to determine the credibility of a defendant’s alibi witnesses (People v. Slim (1989), 127 Ill. 2d 302, 315), and, generally speaking, a trial judge is presumed to disregard incompetent evidence. (People v. Nuccio (1969), 43 Ill. 2d 375, 394-95.) Our supreme court has observed that a trial judge’s presumed immunity to improper or prejudicial evidence and insinuations does in fact have its limits. (Nuccio, 43 Ill. 2d at 396.) We believe the limits were reached in this case.

In stating its finding of defendant’s guilt, the instant trial court relied, apparently wholly, upon the credibility of the witnesses. The judge commented, while considering defendant’s motion for a new trial: “I indicated, over and over again, the issue really boils down to the creditibility [sic] of the witnesses.” Thus, we conclude that the State’s repeated use of unsupported insinuations of conflicts in the testimony of defendant’s witnesses seriously damaged their credibility. Further, the record does not demonstrate that the trial court was aware of the numerous improprieties, even though defendant presented them in his motion for a new trial. (See Nuccio, 43 Ill. 2d at 396.) Under these circumstances, we cannot conclude that defendant was given a fair trial.

For the reasons stated above, we reverse defendant’s conviction and remand the cause for a new trial.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HAMILTON, Defendant-Appellant.
    Second District
    No. 2—88—0440
    Opinion filed March 2, 1990.
    Modified on denial of rehearing June 6, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Louis Hamilton, was found guilty by a jury of residential burglary and robbery. He was sentenced on the residential burglary conviction to a term of 20 years’ imprisonment. No sentence was imposed on the robbery conviction. Residential burglary is a Class 1 felony carrying a sentencing range of not less than 4 years and not more than 15 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(4)). The trial court did not sentence defendant as a Class 1 felon, however, because it found defendant’s prior convictions elevated his sentencing range to that of a Class X felon. The sentencing range for a Class X felony is not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3)). Defendant was also ordered to pay $571.87 in restitution to Ms. Collingwood and was fined $25.

Defendant appeals from his sentence, contending the court erred in sentencing him as a Class X offender and in ordering him to pay restitution. For the reasons stated below, we reverse and remand for new sentencing.

The trial court sentenced defendant as a Class X offender pursuant to section 5—5—3(c)(8) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(8)) after finding defendant had two prior Class 2 felony convictions. Section 5—5—3(c)(8) provides:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3(c)(8).

Defendant contends the State failed to offer competent evidence to prove the elements stated in section 5—5—3(c)(8). At the sentencing hearing, the State did not offer evidence to prove defendant’s prior convictions. The trial court relied on the presentence report, which listed defendant’s convictions. The State contends defendant’s prior convictions were sufficiently established by the presentence report, to which defendant did not object, and by defendant’s motion to suppress prior convictions, in which he stated his prior convictions.

We need not decide whether the presentence report or defendant’s motion to suppress his convictions sufficiently prove the prior convictions because, even if we accepted this proof, we still find no evidence to prove when the offenses were committed, which is a prerequisite to application of the statute. The provision only applies if “(1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(8).) The presentence report lists the dates of defendant’s arrests and convictions, but it is not possible to tell when the past offenses were committed. Thus, without this proof, it was error to sentence defendant as a Class X offender. (People v. Parks (1988), 168 Ill. App. 3d 978, 987.) The sentence is reversed and the cause is remanded for new sentencing.

Next, we must address whether defendant may be sentenced as a Class X felon on remand. Defendant contends this would be a violation of the double jeopardy clause of the fifth amendment. We agree.

The double jeopardy clause does not prevent the retrial of a defendant who succeeds in getting his first conviction set aside on appeal because of a trial error. (Lockhart v. Nelson (1988), 488 U.S. 33, _, 102 L. Ed. 2d 265, 272, 109 S. Ct. 285, 289; Ball v. United States (1896), 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192.) But, when a conviction is reversed on appeal on the sole ground that the evidence was insufficient to sustain the verdict, the double jeopardy clause bars retrial on the same charge. (Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) In regard to sentencing, the Supreme Court has generally held that the double jeopardy clause imposes no absolute prohibition against imposition of harsher sentences at retrial after defendant has succeeded in having his original conviction set aside. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) But, the Court has recognized one exception for sentencing determinations involving the death penalty. (Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852.) The double jeopardy clause bars a State from seeking the death penalty against a defendant on retrial where, in a death sentencing procedure that resembles a trial on the issue of guilt or innocence, the jury decides against a death sentence after the original conviction. 451 U.S. at 446. 68 L. Ed. 2d at 284. 101 S. Ct. at 1862.

In Bullington, Missouri sought to impose the death penalty against a defendant on trial for murder after remand from a successful appeal. After the original conviction, a sentencing hearing was held to determine whether defendant should receive the death penalty. Missouri’s statute required the State to prove certain factors beyond a reasonable doubt before the jury could return a death sentence. (451 U.S. at 434, 68 L. Ed. 2d at 276, 101 S. Ct. at 1855-56.) The jury sentenced defendant to life imprisonment. (451 U.S. at 435-36, 68 L. Ed. 2d at 277, 101 S. Ct. at 1856.) The Court held that, because the sentencing proceeding at defendant’s first trial was like the trial on the question of guilt in that certain factors had to be proved beyond a reasonable doubt, the protection afforded by the double jeopardy clause to one acquitted by a jury is available to a defendant with respect to the death penalty at defendant’s retrial. 451 U.S. at 446, 68 L. Ed. 2d at 284, 101 S. Ct. at 1862.

Bullington involved the unique proceedings of Missouri’s death-penalty sentencing procedure. The Supreme Court has not decided whether the double jeopardy clause may apply to similar sentencing proceedings that do not involve the death penalty. At issue in this case is whether the double jeopardy clause applies to a sentencing proceeding where the State may prove certain facts that will cause defendant’s possible sentence range to be elevated beyond the range for the crime of which he stands convicted.

In Lockhart v. Nelson (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285, the court applied the double jeopardy clause to a sentencing proceeding under a habitual criminal statute that did not involve the death penalty, but it stated in a footnote that, because the lower courts had decided that the double jeopardy clause applied, and the State had conceded the issue, it assumed, though it did not decide, that the double jeopardy clause applied to the case. 488 U.S. at _ n.6, 102 L. Ed. 2d at 271 n.6, 109 S. Ct. at 289 n.6.

The Supreme Court’s reservation aside, we believe it is clear, given the Court’s decision in Bullington, that the double jeopardy clause applies to the sentencing procedure in this case. In Bullington, the Court applied the double jeopardy clause because of the procedure used to arrive at the sentence. The Court stated that, unlike the normal sentencing proceeding where the majority of facts considered are nonadversarial in nature, the State was required to prove certain facts beyond a reasonable doubt. Thus, the jury was required to determine whether the State had proved its case. This procedure divested the court of the wide discretion it usually has in sentencing. As a result, the decision differed from the normal sentencing decision where, if the trial court failed to impose the maximum sentence, it could, not be said that the State failed to prove its case. Bullington, 451 U.S. at 438-44, 68 L. Ed. 2d at 278-82, 101 S. Ct. at 1857-61.

These factors are present in proceedings where a defendant is sentenced pursuant to section 5—5—3(c)(8). Though the statute is silent as to the burden of proof, it has been held that proof must be beyond a reasonable doubt. (People v. Harris (1987), 157 Ill. App. 3d 70, 74, citing People v. Casey (1948), 399 Ill. 374, 378-80.) Thus, the trial court must determine whether the State has proved its case. If the State has proved its case, the trial court must use the greater sentencing range in imposing a sentence. The statute provides that where a defendant has certain prior convictions, a defendant’s sentence shall be elevated to a Class X offender. The statute thus takes away some of the normal discretion of the sentencing court. Because we find that sentencing under section 5—5—3(c)(8) involves the same factors outlined in Bullington, we must apply the double jeopardy clause to this case.

The State argues that Bullington only prohibits a State from imposing a harsher sentence on remand. Therefore, defendant may be sentenced again as a Class X offender as long as the sentence does not exceed 20 years. We disagree. We believe the thrust of the Bullington opinion is that, in sentencing proceedings that involve the unique circumstances outlined above, a State cannot have a second chance to impose a sentence when it failed to prove defendant’s prior convictions the first time.

The State also argues that the Illinois Supreme Court has implied that Bullington applies only to capital cases. (People v. Davis (1986), 112 Ill. 2d 78.) In Davis, the court discussed the supreme court’s general reluctance to apply the double jeopardy clause to sentencing procedures except those unique to the death penalty. (Davis, 112 Ill. 2d at 81-82.) Davis did not discuss whether the double jeopardy clause may apply to other sentencing proceedings. Therefore, we find no merit to the State’s argument.

Finally, we disagree with the State’s contention that this case is similar to Lockhart. In Lockhart, defendant was sentenced as a habitual offender upon proof beyond a reasonable doubt at sentencing of four prior convictions. (Lockhart, 488 U.S. at 34-35, 102 L. Ed. 2d at 270, 109 S. Ct. at 287.) The sentence was reversed, however, because it turned out that one of the prior convictions had been pardoned. The State declared that it would attempt to resentence defendant as a habitual offender using a different prior conviction. (488 U.S. at 37, 102 L. Ed. 2d at 271, 109 S. Ct. at 289.) The Court held that, where the evidence offered by the State, whether erroneously or not, would have been sufficient to sustain the verdict, the double jeopardy clause does not bar retrial. 488 U.S. at 34, 102 L. Ed. 2d at 269-70, 109 S. Ct. at 287.

Lockhart does not apply to the case at bar. As already discussed, the record fails to show any proof of the dates of the prior offenses that led to convictions. Thus, this is not a case where the evidence, sufficient at trial, is later declared insufficient. Here, there clearly was not sufficient evidence presented at trial. Because the State failed to meet its burden of proof, the double jeopardy clause precludes the State from attempting to resentence defendant as a Class X offender on remand.

Defendant next contends, offering three reasons, that the court erred in sentencing him to pay $571.87 restitution.

First, defendant argues he has no ability to pay the restitution; therefore, it must be vacated. The statute covering restitution, section 5—5—6 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6), however, does not require the court to find defendant has an ability to pay before ordering restitution. (People v. Whitfield (1986), 146 Ill. App. 3d 322, 324-25; People v. White (1985), 135 Ill. App. 3d 563, 566.) The only guideline provided by statute states that a court must determine whether restitution is appropriate. Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6.

Prior to July 1984, the statute did require a court to consider defendant’s ability to pay in considering whether to impose restitution. The deleted portion of the statute stated: “A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court’s discretion.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005—5—6(a).) The present section 5—5—6(f) provides: “[tjaking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6(f).) This section requires a court to consider the ability to pay only in conjunction with the method of payment, not in consideration of whether restitution should be ordered. Since the legislature has deleted that part of the statute requiring a court to consider whether defendant has the ability to make restitution, we find there is no longer such a requirement. Thus, the trial court did not err in failing to make this consideration.

Next, defendant contends the trial court failed to appropriately value the damaged property of the victim, Anita Collingwood. The court arrived at an amount of $571.87 from figures listed on Ms. Collingwood’s victim impact statement. In that statement she listed the following damaged or stolen items and the cost of replacement: cash— $30; telephone — $116.82; telephone cord — $9.51; inside and outside back doors — $415.54; totaling $571.87. Defense counsel remarked to the court that restitution damages should be determined by the comparable value and questioned whether Ms. Collingwood bought “something enhanced to replace the value [sic] of the door.” Counsel continued: “If she enhanced or improved the door, I don’t think that should be credited towards replacement, should be value of comparable.” Defendant’s objection arises from Ms. Collingwood’s testimony that she replaced her wooden door with a steel door. Because counsel objected only to evidence for replacement of the door, we find defendant has waived objection to the amounts credited for the other property. (E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 38.) We address only the evidence concerning the doors.

Section 5—5—6(b) provides that, in fixing the amount of restitution, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6(b).) This court has held that out-of-pocket losses should be determined by the fair market value of the property at the time of the crime. (In re F.D. (1980), 89 Ill. App. 3d 223.) We believe the replacement costs listed in Ms. Collingwood’s victim impact statement are sufficient in this case to prove the fair market value of the doors. Ms. Collingwood stated in her victim impact statement that she had insurance that covered only equal value replacement, and she noted that her insurance company covered the full cost of replacing the doors. We think this is sufficient to establish that the doors were replaced with doors of equal fair market value. We point out that defendant had an opportunity to object to any representations in the presentence report, including the victim impact statement, and defendant had an opportunity to offer evidence to prove that the replacement expenses were not fair market value. Defendant did neither. Thus, we find no error by the trial court.

We do agree, however, with defendant’s third point, that the cause must be remanded because the trial court failed to fix a definite method and time for payment pursuant to section 5—5—6(f) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6(f)). Section 5—5—6(f) provides that the court, taking into consideration defendant’s ability to pay, must determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of five years within which payment is to be paid in full. Compliance with this statute is mandatory. People v. White (1986), 146 Ill. App. 3d 998.

Finally, since the State has conceded defendant’s last issue, that the $25 fine imposed pursuant to the Violent Crime Victim’s Assistance Act (Ill. Rev. Stat. 1987, ch. 70, pars. 510(c)(1), (c)(2)) must be reduced to $20 because defendant was not sentenced for a crime of violence, we reduce the fine to $20.

In summary, we reverse defendant’s 20-year sentence of imprisonment and remand for resentencing with instructions that the court may not sentence defendant under section 5—5—3(c)(8) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(8)). We also remand the order of restitution to enable the court to fix the method and time for payment according to section 5—5—6(f) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6(f)), and we reduce defendant’s fine from $25 to $20.

Reversed and remanded.

McLaren and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRIS FROIO, Defendant-Appellee.
    Second District
    No. 2—89—0371
    Opinion filed June 5, 1990.

      Fred L. Foreman, State’s Attorney, of Waukegan (Peter A. Speranza, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Sherry R. Engelstad, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The defendant, Chris Froio, was charged in the circuit court of Kane County with the unlawful possession of (Ill. Rev. Stat. 1987, ch. 56½, par. 704(e)) and intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 705(e)) more than 500 grams of cannabis. The charges rose from the November 6, 1988, traffic stop which led to the discovery of the cannabis in the trunk of the defendant’s automobile. The trial court granted the defendant’s motion to suppress the evidence obtained as a result of the traffic stop, and the State now appeals.

At issue on appeal is the propriety of the trial court’s findings that: (1) the search of the passenger compartment of the defendant’s car was not justified to protect the safety of the police officers; and (2) the defendant did not consent to the search of the trunk of his car.

The following evidence was adduced at the hearing on the defendant’s motion to suppress evidence. We note that, although all parties testifying at the hearing indicated that the following events took place on the evening of November 7, 1989, the complaints and information filed in this cause indicate that the actual date of these occurrences was November 6, 1989. This discrepancy is immaterial here.

Officer Edward Roncone, a patrolman with the Village of Lindenhurst, testified that he was on patrol alone in his squad car on the night in question. While traveling west on Grand Avenue, Officer Ron-cone noticed a vehicle swerve from its lane and cross the center line. Officer Roncone decided to stop the vehicle because of this traffic violation, and he activated the mars lights on his squad car. As he was pulling the vehicle over to the side of the road, Officer Roncone flashed a spotlight through the car’s rear window and noticed the driver reach down. After the two vehicles came to a stop, both the driver and Officer Roncone exited their automobiles and approached each other. Officer Roncone identified the defendant as the driver of the other automobile.

Officer Roncone testified that he and defendant stood near the rear end of the defendant’s automobile. Officer Roncone asked to see the defendant’s driver’s license, and the defendant handed him a Lake County sheriff’s citation. Officer Roncone then proceeded to walk past the defendant to the door of the defendant’s automobile, which had been left open when the defendant exited the car. At this point, Officer Roncone observed a large knife wedged between the upper and lower driver’s side seat cushions in the defendant’s automobile, and he reached his arm into the vehicle and removed the knife. The officer testified that it was not illegal for the defendant to possess the knife. Officer Roncone then conducted a pat-down search of the defendant for any further weapons, but the defendant had none. Officer Roncone asked the defendant why he had the knife, and the defendant stated that he worked in a bad neighborhood in Chicago.

At this point, Officer Roy McNally, another Lindenhurst police officer who had been summoned by Officer Roncone, arrived at the scene. Officer Roncone asked Officer McNally to “keep an eye on” the defendant while Roncone entered the vehicle to search for any further weapons. Officer Roncone stated that, after he entered the defendant’s vehicle, he detected a strong odor of unburnt cannabis which he had not been able to smell when standing outside the car. The officer then “looked down to where [the defendant] made the move on the initial action of the stop” and found a plastic Tupperware container covered with a white lid. Officer Roncone opened the plastic container and detected a green, leafy residue and strong odor of unburnt cannabis. Officer Roncone found no other weapons in the automobile.

Officer Roncone stated that he asked the defendant if he would object to opening the trunk of the automobile so the officers could look inside. According to Officer Roncone, the defendant stated that, although he had no objection, he did not have the key to the trunk. The officer asked the defendant if a key which was sitting on the front seat of the car was the key to the trunk, and the defendant said that it was. When asked again whether he would object to opening the trunk, the defendant did not object. The defendant then took the key and opened the trunk of the car. The officers present saw in the trunk a bag of cannabis in the spare tire. The defendant was placed under arrest at this time.

Officer McNally also testified on behalf of the State. Officer McNally substantially corroborated Officer Roncone’s version of events and indicated that the defendant had no objection to opening the trunk.

Testifying in support of the motion to suppress evidence, the defendant stated that he was told to open the trunk and that he did not feel he could refuse.

During argument on the motion, the State suggested that the police officer’s search of the defendant’s automobile was justified per the Supreme Court’s decision in Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469. The trial court, stating that Long was factually distinguishable from the case at bar, disagreed. The court stated:

“In this case it seems to me we have a simple traffic violation. I mean the only reason that the officer said that he went back into the car was to search for weapons for his own safety and, quite frankly, I don’t understand that. I think he had the right to give him a ticket and take him into custody if he couldn’t post bail, or let him go. I don’t think he had a right to go in the car the second time and I will grant the motion to suppress.”

The trial court also found that the defendant did not voluntarily consent to the search of the trunk of the automobile. The State filed a certificate of impairment and now appeals from the order of suppression pursuant to Supreme Court Rule 640(a)(1) (107 Ill. 2d R. 604(a)(1)).

The stop and search of the defendant’s automobile in the instant case involved five distinct components: (1) the initial stop for the traffic violation; (2) the removal of the knife which was spotted on the driver’s seat; (3) the pat-down search of the defendant; (4) the search of the passenger compartment for weapons; and (5) the search of the trunk. The propriety of the first three components is not at issue. However, the State contends that the trial court erred when it concluded that the weapons search was not justified and that the defendant did not consent to the search of the trunk.

We note that, in reviewing the trial court’s ruling on the defendant’s motion to suppress evidence, the court’s findings normally will not be disturbed on review unless they are manifestly erroneous. (Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69.) However, where neither the facts nor the credibility of the witnesses is in dispute, the question is a legal one subject to de novo consideration on review. People v. Graves (1990), 196 Ill. App. 3d 273, 276.

In Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880, the Supreme Court held that a police officer may make a valid investigatory stop, absent probable cause for an arrest, provided that the officer’s decision is based on specific, articulable facts and reasonable inferences therefrom which warrant the investigative intrusion. Where the officer making a Terry stop reasonably believes, again based on specific, articulable facts, that his safety or the safety of others is in danger, the officer may also conduct a limited search of an individual to search for weapons. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) The protective search may extend beyond the individual’s person to the area within his immediate control from which he might gain access to a weapon. (Michigan v. Long (1983), 463 U.S. 1032, 1048, 77 L. Ed. 2d 1201, 1219, 103 S. Ct. 3469, 3480.) It is permissible for an officer making a Terry stop to search the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, so long as the officer possesses a reasonable belief, based on specific, articulable facts which, taken together with the rational inferences therefrom, warrant the belief that the suspect is dangerous and may gain immediate control of a weapon. Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1219-20, 103 S. Ct. at 3481.

In the instant case, the trial court concluded that Officer Roncone failed to demonstrate a sufficient basis for his belief that the weapons search of the defendant’s passenger compartment was necessary to protect the officers’ safety. Since neither the facts nor the credibility of the witnesses is at issue in this portion of our inquiry, however, we may make a de novo determination of whether the circumstances of this case presented the police officers with sufficiently specific and articulable facts to support their decision to search the passenger compartment. (Graves, 196 Ill. App. 3d at 276.) We believe that the Supreme Court’s decision in Michigan v. Long requires us to conclude that the officers were justified in conducting a search of the passenger compartment of the defendant’s automobile to search for weapons.

The facts in Long are strikingly similar to those in the case at bar. Long, the defendant, was the driver of the automobile which swerved into a ditch. The police officers arriving at the scene met Long, who had exited his automobile and left its driver’s side door open, at the rear of his car. Long was uncooperative with the police and soon began to walk back toward his car. At this point, the police officers noticed a knife in Long’s automobile, so they frisked him and searched those areas of his car’s passenger compartment which would be within his immediate control and in which a weapon could be hidden. The search produced a pouch which contained marijuana. (Long, 463 U.S. at 1035-36, 77 L. Ed. 2d at 1210-11, 103 S. Ct. at 3473-74.) The Supreme Court held that the police officers were in possession of specific, articulable facts which would justify a belief that Long was dangerous and that a limited search of the automobile was necessary to protect the officers’ safety. (Long, 463 U.S. at 1050, 77 L. Ed. 2d at 1220-21, 103 S. Ct. at 3481.) Because these facts virtually mirror those in the instant case, we believe it is clear that the officers here were also possessed of specific, articulable facts which justified their belief that the defendant was potentially dangerous and that a limited search of the driver’s area of the automobile was necessary to protect the officers’ safety.

The trial court felt that Long was not controlling because of a number of dissimilarities between it and the instant case. The court noted that the defendant in Long was not cooperative with the police and was headed back toward his automobile when the officers decided to search his car. We do not find these differences to be significant. Just as was the case in Long, the police officer here saw a dangerous weapon on the seat of the defendant’s automobile. Even if the defendant here was more cooperative than the defendant in Long, it is difficult to imagine a more specific and articulable basis for concluding that an individual may be dangerous than the open presence of a dangerous weapon in his automobile. Again, here, as in Long, the fact that it was legal to possess the knife does not detract from the officer’s reasonable conclusion that the knife’s owner was potentially dangerous. (See Long, 463 U.S. at 1052 n.16, 77 L. Ed. 2d at 1222 n.16, 103 S. Ct. at 3482 n.16.) In addition, here, unlike in Long, the officer saw the driver of the car reach down as the car was being pulled over; this kind of furtive gesture is a factor which supports the inference that there might have been other weapons in the car. See People v. Poole (1988), 167 Ill. App. 3d 7, 14.

Moreover, it is not particularly relevant whether the investigatory search for weapons is conducted before or after the driver begins to return to the car. Under circumstances such as those in the case at bar, “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” (Long, 463 U.S. at 1052, 77 L. Ed. 2d at 1221, 103 S. Ct. at 3482.) “Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.” Long, 463 U.S. at 1051, 77 L. Ed. 2d at 1221, 103 S. Ct. at 3482.

Accordingly, we believe that the search of the vehicle’s passenger compartment was reasonable under these circumstances. Since the search of the passenger compartment was valid, it would not be proper to suppress any contraband discovered during the search. (Long, 463 U.S. at 1050, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481.) Thus, it was improper for the trial court to suppress the plastic Tupperware bowl which contained cannabis residue.

The further search of the trunk, however, presents an entirely different question. The defendant was not arrested until after the trunk was opened, and the State concedes that the search of the trunk is not justified as an inventory search (see, e.g., People v. Moffitt (1985), 138 Ill. App. 3d 106, 113). Instead, the State contends that the defendant consented to the search of the trunk. Unlike our prior inquiry, the testimony presented to the trial court on this point is in conflict. The facts are not, then, undisputed, and the trial court’s ruling rests in part on its assessment of the witnessess’ credibility. Therefore, the trial court’s finding that the defendant did not consent to the search of the trunk will not be disturbed on appeal unless it is manifestly erroneous. Graves, 196 Ill. App. 3d at 276; Gross, 174 Ill. App. 3d at 69.

Consent to a search must be given voluntarily. Whether consent is voluntarily given must be determined from the totality of the circumstances. (People v. Branham (1985), 137 Ill. App. 3d 896, 900.) Consent is not voluntary if it is solely the product of acquiescence or submission to an assertion of lawful police authority. (Branham, 137 Ill. App. 3d at 901.) Here, the trial court was entitled to credit the defendant’s testimony that the officers directed him to open the trunk and that he felt compelled to do so. We cannot say that the trial court’s finding that the defendant did not voluntarily consent to the search of the trunk was manifestly erroneous. Therefore, the trial court properly suppressed the evidence which was found in the trunk.

The portion of the judgment of the circuit court of Lake County suppressing the evidence found in the search of the passenger compartment of the defendant’s vehicle is reversed; the portion of the order suppressing the evidence found in the trunk of the car is affirmed.

Affirmed in part; reversed in part.

UNVERZAGT, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID STOUDT et al., Defendants-Appellees.
    Second District
    Nos. 2—88—1184, 2—88—1216, 2—88—1219 cons.
    Opinion filed June 8, 1990.

      Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from an order entered by the circuit court dismissing three identical criminal complaints. The State claims that the court improperly considered evidentiary matters not needed to evaluate the legal sufficiency of the complaints. We affirm.

We initially note that we agree with the State’s contention that a trial court should not look beyond the charging instrument when deciding if it should dismiss a charge for failure to state an offense. However, assuming the trial court committed this error, it does not follow that its decision must be reversed. A complaint that fails to charge an offense cannot be validated simply by a court improperly considering evidence when deciding a motion to dismiss. (People v. Fink (1982), 91 Ill. 2d 237, 241.) Moreover, this court may affirm the trial court decision for any reason appearing in the record even if the trial court’s decision was based on incorrect reasoning. People v. Treece (1987), 159 Ill. App. 3d 397, 413.

On June 13 and June 14, 1988, defendants, David Stoudt, Paul Crawford and Steven Weindorf, were charged by amended complaint with resisting a peace officer (Ill. Rev. Stat. 1987, ch. 38, par. 31—1), mob action (Ill. Rev. Stat. 1987, ch. 38, par. 25—1(d)), and obstructing persons in the highway (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1416). Defendants filed a joint motion to dismiss count I, resisting a peace officer. After hearing arguments, the court granted defendants’ motion, stating:

“The allegation that the Defendant stayed on the street after being ordered by the police officer to remove himself/herself does not state the offense of Resisting or Obstructing a Peace Officer pursuant to Illinois Revised Statutes, Chapter 38 Sec. 31-1.
Resistance requires some actual physical act which would impose an obstacle which may impede, hinder interrupt, prevent or delay the performance of the officers’ duties.”

The State appeals from the dismissal of count I of the complaint.

Section 114—1(a)(8) of the Code of Criminal Procedure of 1963 (the Code) provides:

“Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
* * *
(8) The charge does not state an offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 114-1(a)(8).)

When reviewing the grant of a motion pursuant to section 114—1, the question is whether the charging instrument complied with the requisites of section 111—3 of the Code. (People v. Gerdes (1988), 173 Ill. App. 3d 1024, 1028.) Section 111—3 provides:

“A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” Ill. Rev. Stat. 1987, ch. 38, par. 111—3(a).

In the case at bar, defendants were charged with resisting or obstructing a peace officer. (Ill. Rev. Stat. 1987, ch. 38, par. 31—1.) Section 31—1 provides:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” (Ill. Rev. Stat. 1987, ch. 38, par. 31—1.)

The complaint states in relevant part:

“Complainant, Sgt. Donald Berke, De Kalb Police Department, 200 S. Fourth Street, De Kalb, Illinois, charges that on or about April 13, 1988, David Stoudt committed the offense of RESISTING A PEACE OFFICER in violation of Chapter •38, Section 31 — 1, Illinois Revised Statutes, as amended, in that in De Kalb County, Illinois, said defendant did knowingly refused [sic] to remove himself from the 400 block of Lincoln Highway, De Kalb, De Kalb County, Illinois, after being instructed to do so by Sgt. Berke of De Kalb City Police, knowing Sgt. Berke to be a peace officer engaged in the execution of his official duties.”

The State argues that the complaint complies with section 111—3 and is sufficient to state the offense charged. The defendants argue that the complaint does not sufficiently set forth the elements of the offense charged. Therefore, the complaint is deficient. We agree with the defendants.

A violation of section 31—1 requires an act of physical resistance. (People v. Pruitt (1988), 166 Ill. App. 3d 679, 682.) Additionally, performance by a peace officer of an authorized act within his official authority is also an element of the offense. (People v. Leach (1972), 3 Ill. App. 3d 389, 394.) We find that neither of the above elements was sufficiently set forth in the complaint.

The State argues that the physical act of resistance is that each defendant “refused to remove himself from the 400 block of Lincoln highway.” This is not a physical act of resistance. Defendants refrained from any physical action. If the officer had attempted to escort defendants from the 400 block of Lincoln Highway and the defendants pushed or struck the officers or fell to the ground or tied themselves to a tree, then there may have been a physical act of resistance. An allegation of failure to cooperate with an officer is not necessarily the same as resisting or obstructing an officer.

In People v. Weathington (1980), 82 Ill. 2d 183, the defendant was arrested for aggravated battery. At the jail, an officer asked the defendant several questions pertaining to his identity. The defendant refused to give any information to the officer and was subsequently charged with resisting a peace officer. The court held:

“[WJhere the defendant merely argued with the officer as to when he would answer the booking questions and then, after an indefinite but certainly a brief time, did answer the questions, no offense took place. No physical act of resistance or obstruction occurred; merely argument coupled with eventual cooperation. The defendant is therefore not guilty of violating section 31—1.” Weathington, 82 Ill. 2d at 187.

In the case at bar, defendants, like the defendant in Weathington, simply refused to comply with the request of an officer. Without more, this conduct does not constitute a violation of section 31—1.

Additionally, we find that the State did not sufficiently allege the officer was performing an authorized act within his official capacity. The complaint simply stated the defendants “[knew] Sgt. Berke to be a peace officer engaged in the execution of his official duties.” In Gerdes, the court stated:

“Where *** the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the information may simply set out the offense in the language of the statute. Where, on the other hand, the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient.” (Gerdes, 173 Ill. App. 3d at 1029.)

This portion of the charge is alleged in the language of the statute. The complaint at bar does not contain sufficient allegations of the authorized act the officer was performing. Since section 31—1 does not particularize the offense, the complaints which contain a charge solely in the language of the statute are not sufficient.

For the reasons stated above, the decision of the circuit court of De Kalb County is affirmed.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE REINHARD

text:
    ROBERT D. GREENWALT, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    Second District
    No. 2—89—0872
    Opinion filed June 5, 1990.

      Robert D. Greenwalt, of West Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Michael J. Goldrick and Jan E. Hughes, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Robert D. Greenwalt, brought this action in the circuit court of Du Page County against defendants, the Department of Revenue and Jerome Cosentino, Treasurer of the State of Illinois, seeking a declaration that section 3—1001 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 3—1001), which imposes a tax on the privilege of using certain automobiles in this State, is unconstitutional. Plaintiff further sought a refund of his payment of the tax paid under protest. Plaintiff’s amended complaint alleged that during 1988 he purchased a used 1986 model year automobile from a private party for $17,000 and that section 3 — 1001 imposed a tax of $750 on the transaction. Cross-motions for summary judgment were filed, and the trial court entered summary judgment in defendants’ favor, from which plaintiff now appeals.

While plaintiff’s appellate brief is somewhat imprecise, we perceive therein the following contentions: (1) the statutory scheme for taxation of the use of automobiles unfairly discriminates against purchasers in nonretail transactions by failing in such transactions to take into account the value of a vehicle traded in, or the value of a vehicle sold by the purchaser where the proceeds of such sale are applied to the purchase; (2) the scheme discriminates against nonretail purchasers by imposing on them the burden of contributing to the Build Illinois Fund; (3) the two-tier rate structure under section 3—1001 is arbitrary; and (4) the tax imposed is an improper ad valorem tax.

At the outset, we briefly examine the several taxation statutes involved in this appeal and their operation in transactions involving vehicles. The Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 440 et seq.), with certain exceptions, imposes a tax upon “persons engaged in the business of selling tangible personal property at retail at the rate of 5% of the gross receipts from such sales of tangible personal property made in the course of such business.” (Ill. Rev. Stat. 1987, ch. 120, par. 441.) The retailers’ occupation tax is not a privilege tax on the consumer, a property tax on the goods or a sales tax on the transaction, but, rather, it is a tax on the business of selling tangible personal property at retail. H. Kohnstamm & Co. v. Department of Revenue (1956), 9 Ill. 2d 182, 183-84, 137 N.E.2d 354; United Technical Corp. v. Department of Revenue (1982), 107 Ill. App. 3d 1062, 1064, 438 N.E.2d 535.

The Use Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 439.1 et seq.), subject to certain exceptions, imposes a tax upon “the privilege of using in this State tangible personal property *** purchased at retail from a retailer.” (Ill. Rev. Stat. 1987, ch. 120, par. 439.3.) Where the property functionally used or consumed is the same as the property which was purchased at retail (as opposed to a by-product or waste product refined, manufactured or produced from the property purchased at retail), the tax is imposed at the rate of 5% of the selling price of such property. Ill. Rev. Stat. 1987, ch. 120, par. 439.3.

Illinois retailers are required to collect the use tax from purchasers by adding the tax to the selling price of property sold. (Ill. Rev. Stat. 1987, ch. 120, par. 439.3.) However, “[a] retailer need not remit that part of any tax collected by him to the extent that he is required to remit and does remit the tax imposed by the ‘Retailers’ Occupation Tax Act,’ with respect to the sale of the same property.” (Ill. Rev. Stat. 1987, ch. 120, par. 439.9.) With respect to property acquired in another State, a person may deduct from his use tax obligation the amount of tax he has paid in the other State with respect to the sale, purchase or use of the property. (Ill. Rev. Stat. 1987, ch. 120, par. 439.3(d).) “Functionally, the Use Tax Act serves to tax property purchased out of State by Illinois residents that is not taxable under the Retailers’ Occupation Tax Act, or the tax act of another State. The Use Tax Act thus prevents the avoidance of the Retailers’ Occupation Tax Act and at the same time attempts to eliminate the competitive disadvantage of in-State businesses.” Chicago Tribune Co. v. Johnson (1985), 106 Ill. 2d 63, 68, 477 N.E.2d 482.

An important feature of both the Retailers’ Occupation Tax Act and the Use Tax Act is that, for purposes of determining tax owed, the value of property traded in of like kind to the property purchased is deducted from the purchase price. Ill. Rev. Stat. 1987, ch. 120, pars. 439.1, 440.

The statutory provision under challenge here, section 3—1001 of the Illinois Vehicle Code as amended effective January 1, 1988 (Ill. Rev. Stat. 1987, ch. 95½, par. 3—1001), imposes a tax on the privilege of using in Illinois a motor vehicle acquired by purchase. Essentially, the tax applies to the sale and purchase of vehicles between parties not usually engaged in the business of selling vehicles. With the exception of certain transactions taxed at a lower rate, the tax is imposed according to the following schedule:

”[T]he rate of tax shall be as follows for transactions in which the selling price of the motor vehicle is less than $15,000:
Number of Years Transpired After Applicable Tax Model Year of Motor Vehicle
1 or less $390
2 290
3 215
4 165
5 115
6 90
7 80
8 65
9 50
10 40
over 10 25
*** the rate of tax shall be as follows for transactions in which the selling price of the motor vehicle is $15,000 or more:
Selling Price Applicable Tax
$15,000 - $19,999 $ 750
$20,000 - $24,999 $1,000
$25,000 - $29,999 $1,250
$30,000 and over $1,500”
Ill. Rev. Stat. 1987, ch. 95½, par. 3—1001(vi).

No tax is imposed, however, if the use of the motor vehicle is taxed under the Use Tax Act or if the use of the motor vehicle is not subject to the Use Tax Act by reason of provisions dealing with the prevention of actual or likely multistate taxation. (Ill. Rev. Stat. 1987, ch. 95½, par. 3—1001.) Accordingly, section 3—1001 imposes a tax only on the use of vehicles not purchased at retail, whereas retail sales are taxed under the Use Tax Act.

It is to be observed that for transactions over $15,000, such as the transaction in the instant case, the rate of taxation will always be 5% or less of the. selling price in contrast to the 5% assessed across the board under the Usé Tax Act. However, unlike the Use Tax Act, section 3—1001 does not exclude the value of a trade-in vehicle from the “selling price.” Accordingly, under section 3—1001, a transaction involving like kind property worth more than the amount by which the selling price exceeds the lower amount of the bracket in which the transaction is taxed will give rise to a greater tax than a similar transaction taxed under the Use Tax Act. Plaintiff contends that such disparate treatment violates the requirement of uniform taxation in the Illinois Constitution of 1970 (Ill. Const. 1970, art. IX, §2).

In connection with this inquiry, we first consider plaintiff’s standing to challenge the tax on this basis. The parties have not raised the issue of standing. Nonetheless, as the doctrine of standing is of straightforward application, we find it appropriate to consider the question of standing sua sponte. See Pre-School Owners Association of Illinois, Inc. v. Department of Children & Family Services (1988), 119 Ill. 2d 268, 287, 518 N.E.2d 1018.

Plaintiff contends that section 3—1001 unfairly discriminates against nonretail purchasers of vehicles who negotiate a trade-in with their sellers. However, nothing in the record suggests that plaintiff is within this class. Plaintiff did not allege that his transaction included a trade-in. In fact, plaintiff’s memorandum in support of his motion for summary judgment suggests that plaintiff sold his previous vehicle to a third party in order to finance the purchase in question here. “Generally, a person to whom a statute may constitutionally be applied will not be permitted to challenge the statute on the ground that it could in another context be applied unconstitutionally to another party.” (People v. Holder (1983), 96 Ill. 2d 444, 449, 451 N.E.2d 831; see also People v. Capitol News, Inc. (May 1990), Nos. 67480, 67481, 67482, 67483, cons., slip op. at 5; Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 259, 263 N.E.2d 833; Acme Brick & Supply Co. v. Department of Revenue (1985), 133 Ill. App. 3d 757, 766, 478 N.E.2d 1380.) We, therefore, decline to consider whether section 3—1001 operates in an unconstitutional manner in a hypothetical situation involving a trade-in in a nonretail transaction.

Plaintiff also asserts that section 3—1001 is unconstitutional because it does not account for “three party transactions,” wherein the purchase of a vehicle is funded by the purchaser’s sale to a third party of another vehicle, as apparently occurred in the instant case. Plaintiff supports this assertion with neither citation of authority nor substantial argument in violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). Accordingly, the contention is waived. Similarly, the bare assertion that, “[b]y not recognizing trade-ins, the Vehicle Use Tax is nothing but an ad valorem (personal property) tax and is unconstitutional per se,” is waived. See Spinelli v. Immanuel Lu theran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401, 515 N.E.2d 1222.

Plaintiff also contends that the statutory scheme for taxation of use of motor vehicles is unconstitutional because portions of the revenues collected under section 3 — 1001 go to the Build Illinois Fund whereas revenues under the Use Tax Act go to the general fund. However, plaintiff ignores the fact that a portion of the revenues under the Use Tax Act does indeed go into the Build Illinois Fund. Ill. Rev. Stat. 1987, ch. 120, par. 439.9.

Plaintiff also maintains that the two-tier rate structure under section 3—1001 is arbitrary because, for example, a two-year-old vehicle purchased for $14,999 would result in a $290 tax, whereas if the price were a dollar higher, the tax owed would be $750.

Article IX, section 2, of the Illinois Constitution of 1970 provides:

“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exceptions, deductions, credits, refunds and other allowances shall be reasonable.” (Ill. Const. 1970, art. IX, §2.)

A classification is valid if based on a real and substantial difference between the people taxed and those not taxed, and the classification must bear some reasonable relationship to the object of the legislation or to public policy. Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 468, 512 N.E.2d 1240.

We believe the legislature could reasonably distinguish between purchasers of higher and lower priced motor vehicles for the purpose of taxing their use. While section 3 — 1001 may result in somewhat disparate taxation in some circumstances, we find no constitutional infirmity.

Plaintiff also challenges the legislature’s choice to tax the use of vehicles sold at nonretail while imposing no tax in connection with nonretail transactions involving other types of personal property. We believe the legislature could reasonably distinguish motor vehicles from other types of personal property.

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

Affirmed.

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