author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BOHLANDER, Defendant-Appellant.
    Third District
    No. 3 — 91—0403
    Opinion filed March 4, 1992.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge, and Basil G. Greanias, of Decatur (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The trial court found the defendant, John Bohlander, guilty of unlawful delivery of cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 705(c)). The court thereafter sentenced him to 18 months’ imprisonment. Bohlander appeals, alleging the trial court erred at sentencing when it considered as an aggravating factor that he had a history of drug dependence. We disagree and affirm Bohlander’s sentence.

The record shows in relevant part that at the conclusion of a bench trial the trial court found Bohlander had sold 26.5 grams of cannabis to an undercover police officer. The presentence report shows the 39-year-old defendant had several previous traffic convictions and a burglary conviction. It also reflects he had three children from prior marriages and was $1,300 in arrears in their child support payments. Although Bohlander had enlisted in the Army, he was subsequently given an “other than honorable” discharge. While Bohlander had an associate’s degree in accounting, he held a variety of jobs, generally for short periods of time. Bohlander admitted using illegal drugs since he was 18. He reported smoking marijuana on a daily basis and also using acid, speed, cocaine and, once, heroin. He claimed he was not addicted to drugs and had quit using them in November of 1990. At the time of the presentence report, Bohlander was receiving outpatient drug treatment as a condition of bond in a pending Federal case.

At the sentencing hearing, the police officer who purchased the 26.5 grams of marijuana from Bohlander testified that 10 days prior to that purchase, he had also purchased an ounce of marijuana from Bohlander. Bohlander testified at sentencing that he was innocent of the police officer’s additional allegations. He claimed that since his 1972 burglary conviction, he had led a law-abiding life. Bohlander acknowledged, however, that he was currently facing Federal charges for welfare fraud. Bohlander admitted he frequently used illegal drugs. He also admitted that while released on bond pending trial in this case, he used marijuana and cocaine. Bohlander noted that his presentence report was inaccurate because he was actually $10,000 behind on child support. Bohlander testified he was trying to straighten his life out by going to drug rehabilitation.

The trial court found the following factors in mitigation: (1) Bohlander’s criminal conduct had not caused direct physical harm to another; (2) he had a history of mental health problems; (3) he had been forthright and honest; (4) he helped support his girl friend’s children; and (5) Bohlander was working. In aggravation, the trial court considered these factors: (1) Bohlander had a prior criminal record; (2) he had sold marijuana to an undercover officer on another occasion; (3) he was not supporting the children of his second marriage; and (4) Bohlander was an admitted regular user of marijuana and other drugs. After considering all factors, the trial court stated that it could not find Bohlander was unlikely to commit another drug-related crime. Therefore, the trial court determined that a prison sentence was appropriate and necessary to deter others.

On appeal, Bohlander contends the trial court should have considered his drug addiction as a mitigating factor. We disagree. He argues that since he is a drug addict, the court’s reliance on drug use as an aggravating factor violates the ban against making drug addiction by itself a crime. (See Robinson v. California (1962), 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417.) This argument is without merit.

We note that drug abuse is not listed in the Unified Code of Corrections (Code) as a mitigating factor or an aggravating factor. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.1, 1005—5—3.2.) However, a sentencing court may base its sentence on factors other than those listed in the Code so long as they are consistent with the Code. People v. Alim (1983), 119 Ill. App. 3d 845, 457 N.E.2d 77.

Bohlander relies on Robinson in support of his position. We find Bohlander’s reasoning is misplaced. Robinson dealt with a case in which the defendant was convicted and sentenced to jail merely because he was a drug addict. A more analogous case is People v. Whealon (1989), 185 Ill. App. 3d 570, 541 N.E.2d 865. There, the court held that drug addiction may be considered as an aggravating factor to show the defendant’s history of prior criminal activity. Also, the court held that drug addiction may be used as evidence to refute either of the following mitigating factors: (1) the defendant’s conduct was the result of circumstances not likely to recur, and (2) the defendant’s character and attitude indicate that he is unlikely to commit another crime.

Here, the trial court noted when it considered Bohlander’s drug use as an aggravating factor that Bohlander had only stayed away from drugs after the Federal charge was brought against him. The trial court commented that it wished Bohlander had quit using drugs earlier. The trial court found, based on Bohlander’s prior attitudes, lifestyle, character and conduct, that it could not find he was unlikely to commit another drug-related crime. After reviewing the trial court’s comments, we clearly find the trial court properly considered Bohlander’s drug use as part of his history of prior criminal activity and as an indication that he was likely to commit more drug-related crimes. Accordingly, we find no error in the trial court’s consideration of Bohlander’s drug use as an aggravating factor.

Moreover, even if the trial court had improperly relied on Bohlander’s drug use as an aggravating factor, we would find the error to be harmless. Where a reviewing court can determine from the record that the weight placed by the trial court on an improperly considered factor did not lead to a greater sentence, remandment is not required. (People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.) Here, the trial court considered Bohlander’s criminal history, the pending Federal charge, and the numerous mitigating and aggravating factors before it. The trial court made only a passing mention of Bohlander’s history of drug use and certainly did not stress it. Based on our review of the record, we find that Bohlander would have received the same sentence even if the court had not considered his drug use in aggravation.

Finally, Bohlander argues that his $2,000 fine must be reduced by $5 to reflect a credit for the one day he spent in jail prior to trial. The State agrees, as do we, that section 110—14 of the Code of Criminal Procedure of 1963 entitles him to this credit. (HI. Rev. Stat. 1989, ch. 38, par. 110—14; People v. Baez (1990), 206 Ill. App. 3d 410, 564 N.E.2d 931.) Accordingly, pursuant to our authority under Supreme Court Rule 615(b) (134 HI. 2d R. 615(b)), we hereby reduce Bohlander’s fine to $1,995.

The judgment of the circuit court of Henry County is affirmed as modified.

Affirmed as modified.

SLATER and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY WAYNE HARRISON, Defendant-Appellant.
    Third District
    No. 3 — 91—0219
    Opinion filed March 4, 1992.
    Dan W. Evers, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Jeffrey Wayne Harrison, pled guilty to first degree murder and home invasion (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(a), 12—11). The trial court sentenced him to natural life imprisonment for the murder conviction and 40 years’ imprisonment for the home invasion conviction. On appeal, we vacated the defendant’s sentences and remanded the cause for resentencing. (People v. Harrison (1990), 196 Ill. App. 3d 298, 553 N.E.2d 746.) The trial court then sentenced him to 60 years’ imprisonment for the murder conviction and 40 years’ imprisonment for the home invasion conviction. The defendant appeals.

We must first address whether we have jurisdiction over this appeal. The State notes that following his resentencing, the defendant filed a motion to withdraw his guilty plea. On the same day, he also filed a notice of appeal. As a result, the trial court never considered the motion to withdraw the guilty plea and it remains pending. The State argues that until the trial court rules on the motion to withdraw, no appeal can be taken to this court. Since remanding would give him two shots at challenging his sentence, the defendant agrees. We agree only in part.

Supreme Court Rule 604(d) states that before an appeal from a judgment entered on a guilty plea may be taken, the defendant, within 30 days of his sentencing, must file in the trial court a motion to withdraw his guilty plea and vacate the judgment. (134 Ill. 2d R. 604(d).) However, in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the Illinois Supreme Court held that when the defendant is only complaining about his sentence, it is sufficient if prior to appeal he files a motion attacking only the sentence. People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334.

When a person convicted of a crime has taken an appeal from the judgment on a complete record, the judgment of the reviewing court is res judicata as to all issues actually decided by the reviewing court, and all issues which could have been presented to the reviewing court, if not presented, are waived. (People v. Adams (1972), 52 Ill. 2d 224, 287 N.E.2d 695.) Further, where a reviewing court remands a cause, the court to which the cause is remanded has no jurisdiction to enter any orders other than those required in furtherance of, and in conformity with, the mandate. People v. Dukett (1975), 33 Ill. App. 3d 863, 338 N.E.2d 487.

•3 Here, the defendant’s motion to withdraw his guilty plea attacked both his original guilty plea and his new sentence. We find that not only was it unnecessary for the defendant to seek to withdraw his guilty plea following resentencing, it was improper. When we remanded the cause for resentencing, the trial court was limited to that single issue. Any issues regarding the validity of the defendant’s guilty plea were res judicata. Accordingly, since the trial court only had jurisdiction to consider the defendant’s sentence, the defendant could not raise any issues concerning his guilty plea and obviously was not required to file a motion to withdraw his guilty plea prior to appealing.

As noted, the defendant also attacked his new sentence in his motion to withdraw his guilty plea. We will therefore consider the motion to be in part a motion to reconsider sentence. That being the case, the notice of appeal was premature. Until the trial court considers the part of the motion which attacks the defendant’s new sentence, the defendant cannot appeal. We therefore remand the cause for the limited purpose of allowing the trial court to consider the sentencing issues raised in the defendant’s motion.

As a matter for the trial court to consider on remand, we would note that People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, held that a defendant may only be sentenced to an extended term of imprisonment for the most serious offense of which he was convicted.

As such, the instant defendant may not receive an extended term for the home invasion conviction.

For the above reasons, this appeal from the judgment of the circuit court of Knox County is dismissed and the cause is remanded for the limited purpose of reconsidering the defendant’s sentence.

Dismissed.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MAX PENCE, Defendant-Appellee.
    Third District
    No. 3-91-0339
    Opinion filed March 9, 1992.

      William Herzog, State’s Attorney, of Kankakee (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Max Pence was charged with unlawful possession of a weapon by a felon, unlawful use of weapons, theft and resisting a peace officer. The trial court granted defendant’s motion to quash his arrest and suppress evidence. The State appeals. We affirm.

Patrolman Robin Passwater of the Kankakee police department testified at the suppression hearing that he and patrolman James Alrandi were on patrol at 2:45 a.m. on September 30, 1990, when they saw defendant’s car go through a stop sign. After the car was stopped, Alrandi obtained defendant’s driver’s license and returned to the squad car to run a license check and write a warning ticket. Passwater conversed briefly with defendant, who was alone in the car, and asked defendant for permission to search the car. Defendant agreed. By that time, another police unit was at the scene and patrolman Patrick Kane was standing on the other side of defendant’s car. Passwater had defendant step out of the car and then asked him to turn around and put his hands on the car. A pat-down search of defendant revealed a handgun in defendant’s jacket pocket. When asked why he frisked the defendant, Passwater responded:

“Just common procedure. It is for our own safety. Anybody steps out of a vehicle and is going to be standing next to you, we have to make sure they don’t have anything on them.”

Passwater noted that he would ask permission to search a vehicle if he was “suspicious at all.” His suspicions were aroused in this case because of the time of night, the fact that the area was known for narcotics activity and because defendant’s explanation that he was in the area to meet someone “just wasn’t flowing right.” Passwater agreed, however, that defendant was cooperative. When asked whether there were any other reasons that he was suspicious, Passwater answered:

“I don’t know. I can’t remember the way [defendant] was acting or anything. I believe he was pretty clam [sic] about the whole situation other than that, no. It’s just basically because it’s done on every stop over there now.”

Defendant testified that the police turned on their lights before he reached the stop sign and that he stopped and then turned at the corner and pulled over. After giving his license to Alrandi, Passwater asked the defendant if he had any marijuana or cocaine in the car. After defendant denied having any drugs, Passwater asked for permission to search the car and defendant agreed. Defendant was then asked to get out of the car and was searched.

In granting defendant’s motion, the trial court found that defendant was properly stopped for a traffic violation. The court also found, however, that the search was unlawful, noting that “[t]here seems to have been an amendment to the Constitution [which] says the Constitution shall not apply at night in high crime areas.”

The fact that a police officer has reason to stop an individual does not necessarily justify the intrusion of a search for weapons. (People v. Brown (1989), 190 Ill. App. 3d 511, 546 N.E.2d 95.) A police officer is permitted to search for weapons when he has reason to believe that he is dealing with an armed and dangerous individual. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.)

“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicions or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.

At a hearing on a motion to suppress, it is the trial court’s function to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.) A trial court’s decision on a motion to suppress evidence will not be reversed unless it is manifestly erroneous. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837; Brown, 190 Ill. App. 3d 511, 546 N.E.2d 95.

Under the facts of this case, we are unable to find that the trial court’s decision to grant the motion to suppress was manifestly erroneous. Officer Passwater admitted that the defendant was calm and cooperative. There is nothing in the record to indicate that defendant acted in a manner which would lead a reasonably prudent person to suspect that he was armed. Indeed, Passwater did not testify that he felt the defendant was dangerous. Instead, Passwater searched the defendant because it was “[j]ust common procedure” and “basically because it’s done on every stop over there now.” While a police officer’s subjective feelings do not determine whether a frisk is valid, “the testimony of an officer as to his subjective feelings is one of the factors which may be considered in the totality of the circumstances known to the officer at the time of the frisk.” (Galvin, 127 Ill. 2d at 168, 535 N.E.2d at 843.) While Passwater testified that he was suspicious because the hour was late, there was a high level of narcotics activity in the area, and defendant’s explanation that he was in the area to meet someone “wasn’t flowing right,” those circumstances do not rise to the level of specific and articulable facts necessary to justify a search for weapons. (See People v. Kramer (1991), 208 Ill. App. 3d 818, 566 N.E.2d 756.) While we are cognizant of the dangers faced by police officers and the difficulties they encounter in attempting to balance their risk of harm against a citizen’s constitutional rights, we are nevertheless duty bound to uphold those rights. The judgment of the circuit court is affirmed.

Affirmed.

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


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PIOTR RUTKOWSKI, Defendant-Appellant.
    Second District
    No. 2 — 91—0381
    Opinion filed March 11, 1992.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Stephen E. Norris, Kenneth R. Boyle, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Piotr Rutkowski, appeals from the dismissal of his pro se post-conviction petition by the circuit court of Du Page County. We have jurisdiction pursuant to section 122—7 of the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122—7) and Supreme Court Rule 651 (134 Ill. 2d R. 651). The sole issue on appeal is whether the trial court erred by considering the State’s motion to strike the post-conviction petition during the 30-day period in which the court is to determine, without input from the parties, whether the petition has merit. We reverse and remand.

Defendant was found guilty of the July 13, 1983, murder of Frederick Thode and sentenced to 22 years’ imprisonment. We affirmed the conviction in People v. Rutkowski (1986), 141 Ill. App. 3d 713. Defendant filed his first post-conviction petitions in 1987 which were dismissed without an evidentiary hearing. We affirmed the dismissal in People v. Rutkowski (1989), 181 Ill. App. 3d 1120 (unpublished order under Supreme Court Rule 23).

On February 25, 1991, defendant filed a second amended post-conviction petition pro se. The State made an oral motion to strike the petition on March 20, 1991. On March 22, 1991, the trial court dismissed defendant’s second amended post-conviction petition as being frivolous and without merit. Defendant filed a timely appeal on April 3,1991.

Defendant contends that the trial court erred by considering the State’s oral motion to strike before independently determining that defendant’s petition was frivolous and lacked merit. Defendant seeks reversal of the trial court’s order dismissing the petition and a remand for further proceedings pursuant to sections 122—4 through 122—6 of the Act. Ill. Rev. Stat. 1989, ch. 38, pars. 122—4 through 122-6.

The State contends that its oral motion to strike concerned primarily the procedural matter of required supporting affidavits and was not a motion attacking the substance of the petition. The State also contends that defendant was represented by counsel at the hearing, so defendant suffered no prejudice when the State presented the motion.

Section 122—2.1 of the Act states, in pertinent part:

“(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.
***
(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. ***
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122—4 through 122—6.” Ill. Rev. Stat. 1989, ch. 38, pars. 122-2.1(a)(2), (b).

The requirement that the written order specify the findings of fact and conclusions of law is directory rather than mandatory. (People v. Porter (1988), 122 Ill. 2d 64, 82-83.) However, the requirement that the court enter a written order of dismissal within 30 days after filing is a mandatory requirement. (Porter, 122 Ill. 2d at 85.) “A trial judge alone is to consider whether a petition for post-conviction relief is frivolous or patently without merit in the absence of pleadings or input from either side.” (Emphasis added.) (People v. Brothers (1989), 179 Ill. App. 3d 788, 791.) Dismissal of the post-conviction petition is void if the trial court fails to comply with the provisions of section 122 —2.1. People v. Magdaleno (1989), 188 Ill. App. 3d 384, 386.

In Magdaleno, the State filed a motion to strike less than two weeks after the post-conviction petition was filed. This court held that the record indicated that the judge improperly considered the State’s arguments in dismissing the petition, thus making the dismissal void. The situation in the case at hand is strikingly similar. At the March 20 hearing, the State orally moved to strike the petition. The State argued that defendant had not presented an affidavit to prove that a psychiatrist, who testified at defendant’s trial, was not properly licensed. The trial judge heard the State’s arguments and said “[w]e will set this matter for this Friday, March 22, at 9:00 o’clock, for decision.” The record reflects that the trial court considered the State’s arguments of March 20, 1991, when rendering its decision on March 22, 1991. We hold that the trial court violated the provisions of section 122— 2.1, rendering the dismissal of defendant’s post-conviction petition void.

The State’s argument that its motion to strike concerned primarily a procedural matter does not negate the fact that the trial court is to consider whether the petition is frivolous or patently meritless without input from either side. Even though a written motion was not filed, the State had oral input concerning defendant’s petition. Also, the State’s claim that defendant suffered no prejudice because he was represented by counsel at the March 20 hearing is tenuous. Defendant correctly states that neither an appointment of counsel nor a Supreme Court Rule 651(c) certificate (134 Ill. 2d R. 651(c)) appears in the record to support the State’s claim that defendant had representation at the March 20 hearing. The mere presence of the Du Page County public defender on March 20 does not mean that defendant was represented by an attorney safeguarding his interest. As stated in People v. Alexander (1985), 136 Ill. App. 3d 1047, 1052:

“[I]t could not have been the legislative intent to sanction ex parte hearings of the type which were held in the case at bar prior to dismissal of [defendant’s] petition. Rather, at this preliminary stage of the proceedings, the trial judge alone must consider the petition in view of the relevant court files. The State is to have no input with regard to the circuit court decision at this stage of the proceedings.”

The March 20 hearing was equivalent to the ex parte hearing that occurred in Alexander. Instead of a hearing, the judge was to evaluate the frivolity of the petition based on the court files.

Because the trial court’s dismissal of defendant’s petition is reversed, the case must be remanded for further proceedings. Defendant asks this court to remand for further consideration pursuant to sections 122 —4 through 122—6 of the Act, citing, among other cases, Magdaleno. However, in Magdaleno, the case was remanded for substantive consideration of the petition under sections 122—4 through 122—6 because there was no written order dismissing the petition. Here, the court issued a written order dismissing the petition as frivolous and without merit.

In Brothers, we remanded for further determination as to the frivolity of the defendant’s petition pursuant to section 122—2.1(a) of the Act. However, Brothers is also distinguishable because the trial court never made a determination that the petition was frivolous, as the trial judge did here. The trial judge in Brothers granted the State’s motion to dismiss the petition. In a subsequent decision, People v. Nelson (1989), 182 Ill. App. 3d 1071, we held that the trial court lost authority to dismiss the petition by failing to rule on the petition within 30 days of its filing. The cause was remanded for further proceedings pursuant to sections 122—4 through 122—6 of the Act.

We agree with defendant’s claim that the situation at hand is analogous to Magdaleno and Nelson. In effect, 'defendant would have no remedy for the court’s procedural violation if we were to remand and allow the trial court to again determine that the petition was frivolous and without merit. Section 122—2.1(b) states that the petition shall be docketed for further consideration in accordance with sections 122—4 through 122—6 if the petition is not dismissed pursuant to section 122—2.1. We hold that since the petition was improperly dismissed pursuant to section 122—2.1, section 122—2.1(b) applies and the case should be continued in accordance with sections 122—4 through 122—6 of the Act.

For the foregoing reasons, the order of the circuit court of Du Page County is reversed, and this cause is remanded with directions that the court docket the petition for consideration in accordance with sections 122—4 through 122—6 of the Act.

Reversed and remanded with directions.

UNVERZAGT and GEIGER, JJ„ concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZACHARY WOODARD, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0471
    Opinion filed March 13, 1992.
    ehearing denied April 14, 1992.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Zachary Woodard, was charged with aggravated battery and armed violence based on aggravated battery. On May 17, 1990, a jury found the defendant guilty of the crimes charged. His motion for a new trial was denied, and he was sentenced on July 12, 1990. The court vacated the aggravated battery conviction and imposed a nine-year sentence of imprisonment for the armed violence conviction. The defendant contends that there was insufficient evidence presented to prove him guilty beyond a reasonable doubt and that the trial court improperly excluded a corroborating alibi witness for the defendant, thereby denying him a fair trial. We affirm.

The victim, Willie Spates, testified that on January 21, 1990, he was at the house of Lamont Wells in East St. Louis with his brothers, L.C. and Donnie Spates. The four men, according to his testimony, began drinking about 6:30 p.m. that evening consuming some wine, gin and beer over a period of approximately five hours. Sometime before midnight Emmell Taylor, Lamont Wells’ grandmother, asked the young men to leave because they were making too much noise. Willie Spates testified that he and his brother L.C. left the house, headed down to a liquor store owned by Chester Haymore, and bought some chicken on the way. Willie sent his brother in to buy the beer because he was not welcome in Mr. Haymore’s store. While waiting for L.C., Willie was approached by his friend, Anthony Cooper. Cooper, according to Willie Spates, offered to buy four pieces of chicken from him for $4 and also offered him a pair of earrings. After the exchange, Willie sent his brother back in to buy more beer with the money. The three men then proceeded to walk back to Lamont Wells’ house. As the men were walking up the street, Willie Spates and Anthony Cooper were in front while L.C. trailed farther behind. Willie testified that he heard a voice say, “Don’t you remember this?” Willie Spates recognized the voice as that of the defendant, Zachary Woodard. At that moment a shot rang out. The bullet passed through Willie’s right arm and lodged in his chest. Willie Spates turned and claimed he saw the defendant standing at the curb across the street. He estimated the distance at about 40 feet and said the area was lit by a street lamp. He testified the defendant was holding a pistol. As more shots rang out Willie Spates ran to the house of Lamont Wells. He pushed in the door, ran through the home and up into the attic. He was later taken to the hospital where he identified the defendant as the man who shot him. Willie Spates claimed that several months prior to the incident the defendant had accused him of stealing his food and had threatened to shoot him for it. Spates testified that he had also seen a man named Cortez Prater at the scene.

Crime scene technician William Brandon and Detective Marion Hubbard spoke to Willie Spates at the hospital at about 1:30 a.m. that evening. They said he appeared to have been drinking, but did not seem drunk and was not out of control.

Officer Hubbard took statements from several witnesses of the crime. Anthony Cooper stated that he could not say the defendant had done the shooting because Cooper had covered his head when the incident occurred and then took off running. In his statement to the police, Cortez Prater said that he had seen the defendant argue with the Spates brothers, run back into the poolroom, come out of the poolroom with a revolver, and shoot the Spates brothers. Hubbard also took a statement from Chester Haymore. Haymore said in the statement that the defendant did not enter his poolroom until a few minutes before the shooting was reported by a girl.

At trial the witnesses’ testimony varied dramatically from their statements. Anthony Cooper testified that on the night of the shooting he had been standing in front of the liquor store when he saw Willie and L.C. Spates coming down the street. Cooper said that he offered to trade a pair of earrings he had for some of Willie Spates’ chicken. He denied that any money was exchanged. As he and Willie Spates walked down the street followed by L.C., a small young man around 17 or 18 ran out of the dark carrying a .22 rifle and said, “Spates, why you do that to me like that?” At this point Willie Spates took off running to Wells’ house. Cooper testified that he said, “I ain’t got nothing to do with it, man,” at which point the assailant responded, “I know Cooper.” Anthony Cooper identified this smaller man as “Willie,” a janitor at a local school, but did not know his full name. Cooper said that as he ran home he heard more shots fired at L.C. Spates. He testified that he had not seen the defendant on the street that night. At trial Anthony Cooper insisted that he had tried to tell the police about “little Willie,” but that he was pressured and threatened by Officer Hubbard into signing the statement without knowing what it said.

After this testimony the State requested a short continuance to locate “little Willie,” subpoena him, and have him testify. The court denied the request.

Cortez Prater testified at trial that, contrary to his statement, he had not witnessed the shooting. He claimed that Detective Hubbard had threatened him and that he signed the statement only because he was scared and wanted to go home.

Chester Haymore testified that he owned the poolroom and the adjacent liquor store. At trial he said that he saw the defendant enter the pool hall sometime after 9 or 10 p.m. on the night of the shooting. He claimed that the defendant was playing pool with a man named “Bear” when a girl ran in and announced that there had been a shooting. Haymore said he told the defendant to close and bar the door at which time the defendant answered the phone just inside the door. Mr. Haymore testified that his statement to Detective Hubbard was inaccurate to the extent it indicated he had seen the defendant enter the pool hall only minutes before the shooting was reported.

The defendant testified at trial that he had gone to Haymore’s Pool Hall that evening. While he was there shooting pool with a man named Tyrone, nicknamed “Bear,” the telephone rang. The defendant answered it and found it was Carrie Williams calling, a friend of his who lived down the block from the pool hall. Just after he finished speaking on the phone, a woman entered the hall saying that two men had been shot nearby. Mr. Haymore, the defendant said, told him to bar the door, and shortly after this Carrie Williams called again asking him to come over to her house as the shooting had occurred near her home. Defendant went to her home immediately after the call. As the defendant was standing at the scene of the shooting talking with police detective Levy, a call came in to arrest Zachary Woodard as a suspect in the shooting. The officer then placed the defendant under arrest. While the defendant denied having a gun that night or having seen the shooting, he did say that he had told Willie Spates not to hang out in front of the pool hall that evening.

Carrie Williams also testified. She said that on the night of the shooting she and her children got down on the floor of their home when they heard the shots. She then telephoned the pool hall to find out what was happening. The defendant answered the phone and she spoke with him. After hanging up she heard another gun shot and called the pool hall again. She testified that she thought she had called a third time as well.

Before the close of their case, the defense attempted to call Raymond Tyrone Livingston, nicknamed “Bear.” Livingston was allegedly the man who had been playing pool with the defendant the night of the shooting. The State objected on the basis of surprise as the witness was not named in discovery, and the court sustained the objection. The defense made an offer of proof that the witness would testify that he had been playing pool with the defendant for a period of hours before the shooting was reported.

The defendant first alleges that the evidence presented by the State was inadequate to prove him guilty beyond a reasonable doubt since the defendant’s alibi was corroborated, witnesses testified that their statements to police were untrue and coerced, and the victim’s ability to identify the defendant was doubtful.

When presented with a challenge to the sufficiency of evidence, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The night of the shooting and at trial, Willie Spates, without hesitation, identified the defendant as the man who shot him. Testimony of a single witness, if positive and credible, may be sufficient to sustain a conviction even though the testimony is contradicted by the accused. (People v. Mehelic (1987), 152 Ill. App. 3d 843, 850, 504 N.E.2d 1310, 1315.) While there was evidence to suggest that the victim’s opportunity to observe the defendant was less than ideal, the sufficiency of identification testimony is a question of fact for the jury to decide (People v. Palmer (1984), 125 Ill. App. 3d 703, 709, 466 N.E.2d 640, 645). It is not the function of this court to retry the defendant. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

The testimonies of Anthony Cooper, Cortez Prater, and Chester Haymore were all contradicted to one degree or another by their pretrial statements to the police. It is the jury’s prerogative to weigh testimony in light of its discrepancies and conflicts, to accept or reject as much or as little of the witnesses’ testimony as it pleases, and to draw reasonable inferences from that testimony. (People v. Kosyla (1984), 129 Ill. App. 3d 685, 701, 472 N.E.2d 1207, 1218.) The pretrial statements given by these men implicated the defendant at least as much as their testimony at trial exculpated him. This court will not substitute its judgment as to the weight of disputed evidence or the credibility of witnesses. People v. Collins (1988), 176 Ill. App. 3d 169, 173, 530 N.E.2d 1143, 1146.

As regards the defendant’s alibi, it must be noted that a jury is never required to accept alibi testimony over the positive identification of the accused even if the alibi testimony is given by a greater number of witnesses. The jury is in a superior position to observe the witnesses and consider their interest in exonerating the defendant. (Palmer, 125 Ill. App. 3d at 711, 466 N.E.2d at 647.) Thus, after viewing the evidence in a light most favorable to the prosecution, we cannot say that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The defendant also argues that he was denied a fair trial when the court, over objection, refused to allow the defense to call Raymond Tyrone Livingston as a witness to corroborate the defendant’s alibi.

Supreme Court Rule 413(d)(i) requires that defendant disclose prior to trial a list of the witnesses that defendant intends to call. (134 Ill. 2d R. 413(d)(i).) Failure to comply with this disclosure requirement subjects the defendant to the possibility of sanctions, including the exclusion of an undisclosed witness. 134 Ill. 2d R. 415(g).

It is undisputed that Livingston was not listed in discovery as a possible witness by the defendant. It is reasonable to presume that there is something suspect about a defense witness who is not identified until after the eleventh hour has passed. (Taylor v. Illinois (1988), 484 U.S. 400, 414, 98 L. Ed. 2d 798, 813-14, 108 S. Ct. 646, 655.) There is no apparent reason why Livingston could not have been listed as a possible witness for the defense, even if only as “Bear.” Properly conducted discovery minimizes the risk that a judgment will be predicated on incomplete, misleading or even deliberately fabricated testimony. (Taylor, 484 U.S. at 411-12, 98 L. Ed. 2d at 812, 108 S. Ct. at 653-54.) Defendants who are willing to fabricate a defense may also be willing to fabricate excuses for failing to comply with a discovery requirement. (Taylor, 484 U.S. at 413, 98 L. Ed. 2d at 813, 108 S. Ct. at 655.) The record also suggests that Livingston’s testimony was cumulative as, at trial, the defendant, Chester Haymore and Carrie Williams all gave testimony supporting the defendant’s alibi that he was in the pool hall at the time of the shooting; therefore, no prejudice was shown.

Whether or not to impose the sanction of exclusion is a matter within the trial court’s discretion, and the trial court’s decision will not be disturbed absent a showing of prejudice or surprise. (People v. McKinney (1983), 117 Ill. App. 3d 591, 596, 453 N.E.2d 926, 929.) The defendant can claim no surprise and has failed to show any prejudice. We therefore will not disturb the trial court’s decision.

While the defense has correctly pointed out that the exclusion of a witness in Taylor was based upon a showing of willful discovery violation, they incorrectly presume that Taylor precludes all other grounds for such exclusion. They mistake Taylor’s specific holding for a broader standard.

Affirmed.

GOLDENHERSH, P.J., and LEWIS, J., concur.


author: JUSTICE LEWIS

text:
    ROBERT D. SIMS et al., Coexecutors of the Estate of Lucille Sims, Plaintiffs-Appellants and Cross-Appellees, v. DALE BROUGHTON, DefendantAppellee and Cross-Appellant.
    Fifth District
    No. 5 — 91—0052
    Opinion filed March 23, 1992.
    David Y. Eberspacher, of Heller, Holmes, Hefner & Eberspacher, Ltd., of Mattoon, for appellants.
    Michael P. Kiley, of Dove & Dove, of Shelbyville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Plaintiffs, Robert D. Sims and Ronald C. Sims, coexecutors of the estate of Lucille Sims (Robert Sims and Ronald Sims were substituted as plaintiffs following the death of Lucille Sims, the sole owner of the real estate herein involved at the time of the filing of this lawsuit), appeal the circuit court’s order granting the defendant’s, Dale Broughton’s, motion to dismiss their complaint pursuant to section 2 —619(a)(7) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(7)). On appeal, the plaintiffs contend that the court erred in granting the defendant’s motion to dismiss their complaint on the grounds that they had an unenforceable contract under the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 2). We affirm.

It is well established that, in reviewing a court’s dismissal of a complaint, an appellate court must take all well- and properly pleaded facts as true. (Sturm v. Block (1979), 72 Ill. App. 3d 306, 390 N.E.2d 912.) The facts obtained from a review of the pleadings and other supporting materials (primarily affidavits) contained in the record are as follows: The plaintiffs offered a parcel of real estate containing 35.74 acres, referred to as tract I, for sale at a public auction on March 8, 1989. Two other parcels of real estate, tract II and tract III, were also offered for sale at this auction. A handbill advertising the public auction had been distributed prior to the sale. In the handbill, the legal description of each of the parcels of real estate was given, and the terms of the sale were stated. The terms for the sale were listed as follows:

“10% down day of sale, balance in 30 days or when deed and abstract are brought up to date. Each tract will be sold separately to the highest bidder for a final sale. Buyers will receive a title policy.”

The defendant attended the auction and was the highest bidder for tract I. According to the plaintiffs, the defendant bid $1,800 per acre, for a total price of $64,332. The auctioneer accepted the defendant’s bid, and after the sale, the defendant was requested to execute an agreement for the purchase of the property “pursuant to the terms and conditions of the sale bill and announcements made at the sale.” The defendant refused to sign the agreement for the purchase of the property. Subsequently, plaintiffs made demands upon the defendant to complete the purchase of tract I, but the defendant continued to refuse to do so. Later, in September or November 1989, the plaintiffs sold tract I to Agri-Serve, Inc., for $1,275 per acre. In their complaint, the plaintiffs sought damages for the difference in the sale price and the price bid by the defendant plus costs.

In support of the plaintiffs’ complaint, they filed the affidavits of Gordon Price, Paul Stone, and Leon Lane. In Gordon Price’s affidavit, he stated that he has been engaged in the auction of real estate for many years, and he is familiar with the custom and practice of such auctions. On March 8, 1989, he conducted the public auction of the plaintiffs’ three parcels of real estate. At that auction, the defendant bid $1,800 per acre for tract I as described in the handbill advertising the auction. Price accepted the bid of defendant as the highest bid and announced that tract I was “sold” to the defendant for $1,800 per acre. Immediately after accepting the defendant’s bid, Price wrote the defendant’s name on his (Price’s) copy of the handbill. After the sale of tract II and tract III, he also wrote the names of the purchasers of these parcels on this same document. Subsequently, Price threw away his handbill on which he had noted the names of the purchasers, believing this document to be of no use or import. A copy of the handbill without Price’s notations was attached to Price’s affidavit as an exhibit.

Paul Stone stated in his affidavit that he was the attorney for the plaintiffs for the sale of the real estate. Stone’s affidavit revealed that the plaintiffs had arranged for the public auction of the three tracts of real estate, and that Gordon Price had prepared, posted and distributed the handbill advertising the sale. Stone stated the terms of the sale were included on the handbill.

Prior to the sale of the real estate on March 8, 1989, Stone prepared a written agreement for the sale of real estate for each of the three tracts being sold, and these agreements were available for review before the commencement of the sale on that date. Stone was present at the sale, he heard Price announce the terms of the sale as they were stated on the handbill, and he himself repeated the terms of the sale. Stone announced that the buyers were to sign a written agreement for sale of the real estate at the conclusion of the auction.

According to Stone, Price announced that tract I was being sold and that the property was being sold by the acre. Although there were several initial bidders for tract I, the defendant was the highest bidder with $1,800 per acre. The defendant’s bid was received and accepted by Price. When Stone approached the defendant to ascertain his name to place on the written agreement, the defendant stated to Stone that he thought he “got a bargain.” Stone advised the defendant that his bid was $1,800 per acre, then Stone left to attend to the sale of the other two tracts of real estate.

At the conclusion of the auction, Stone filled in the blanks on the written agreement for the sale of tract I, and the plaintiffs signed the document. The blanks on the agreements for tracts II and III were filled in and the purchasers and the plaintiffs signed these documents. However, the defendant refused to sign the written agreement for the sale of tract I, stating that he did not bid $1,800 per acre. The written agreement prepared by Stone for tract I, with the blanks filled in, was attached to Stone’s affidavit as an exhibit.

A third affidavit by Leon Lane was also filed by the plaintiffs. In his affidavit, Lane stated that he has been engaged in the profession of auction sales since 1954. Lane further stated that he is familiar with the custom and practice of the manner in which sales of real estate are conducted, and that it is not the custom and practice of auctioneers to sign written agreements or written purchase offers on behalf of a bidder in the course of the auction.

The defendant moved to dismiss the plaintiffs’ complaint claiming that the plaintiffs had no cause of action based upon the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 2). In the defendant’s motion to dismiss, he stated that there was no written contract or memorandum signed by the defendant or a person authorized by the defendant to make the plaintiffs’ claim enforceable.

Following a hearing on the defendant’s motion to dismiss, the court granted the defendant’s motion. In the court’s written judgment entered on January 3, 1991, the court found that the transaction between the plaintiffs and the defendant falls within the purview of the Statute of Frauds, and that the transaction was not evidenced by a written contract or memorandum. The court further found that the transaction was unenforceable under the Statute of Frauds and dismissed the plaintiffs’ complaint with prejudice.

The plaintiffs appeal the court’s order granting the defendant’s motion to dismiss, contending that, when the handbill upon which Price noted the defendant’s name and the written agreement for sale of real estate are considered together, these documents satisfy the requirements for a written contract, thereby taking the transaction out of the Statute of Frauds.

The Statute of Frauds provides in pertinent part as follows: “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” (Ill. Rev. Stat. 1989, ch. 59, par. 2.)

From the foregoing, it is clear that some written document must be signed by the defendant or by his authorized agent in order to enforce a contract for the sale of real estate. Further, the document signed must contain a description of the property sold, the names of the seller and purchaser, and the price and terms of the sale. (Doty v. Wilder (1854), 15 Ill. 407.) The purpose of including this information in the written document is to eliminate the need for parol evidence to ascertain the terms of the sale or the intention of the parties. Doty v. Wilder (1854), 15 Ill. 407.

The court in Doty stated that an auctioneer is considered an agent for both the seller and the purchaser, and thus, a document signed by the auctioneer on behalf of the purchaser, if it contains the necessary information, binds the purchaser to the contract. (Doty v. Wilder (1854), 15 Ill. 407.) Additionally, it has been held that the written contract may consist of several documents. (Jones v. Olsen (1980), 80 Ill. App. 3d 1016, 400 N.E.2d 665.) If the contract is to be ascertained from more than one document, the signed writing must refer expressly to the unsigned writing or writings, or the several writings must be so connected, either physically or otherwise, that it may be determined by internal evidence that they relate to the same contract. Jones v. Olsen (1980), 80 Ill. App. 3d 1016, 400 N.E.2d 665.

Here, the plaintiffs assert that the handbill upon which Price, the auctioneer and the defendant’s agent, placed the defendant’s name, is a written document signed by the defendant. The plaintiffs further argue that this handbill contained the legal description of the property, the terms of the sale, and the names of the seller and the purchaser, and when this handbill is viewed in conjunction with the unsigned written agreement, which contained the legal description and the total purchase price ($64,332), these documents satisfy the intent of the Statute of Frauds and the contract for the sale of tract I is enforceable against the defendant.

We find plaintiffs’ argument that the two documents are sufficient proof of the transaction to be without merit. First, the document upon which the auctioneer placed the name of the defendant was not a document that can be connected to the written agreement for the purchase of the sale of the real estate. There was nothing in the language contained in the handbill which referred to the written agreement for the sale of tract I which would provide the internal evidence that it related solely to the same contract. Furthermore, the purpose of the handbill was to advertise the sale, and it was not prepared with the view that it should be evidence of a binding contract. Second, the actual handbill upon which Price had noted the defendant’s name (and the other two purchasers’ names as well) was unavailable and could not be produced. This document had been discarded by Price, thereby giving further substance to our reasoning that this document cannot be considered as part of the documents evidencing a contract for the sale of real estate. And lastly, Price did not place the defendant’s name on the document in his role as the defendant’s agent, but he had merely placed the defendant’s name on the handbill as a notation of who was the highest bidder for the real estate. As was noted previously, neither the defendant nor the auctioneer had signed the written agreement for sale of tract I prepared by attorney Stone. Therefore, there was no signed document by the defendant or his agent in accord with the requirement of the Statute of Frauds. We find that the circuit court properly dismissed the plaintiffs’ complaint as the contract was unenforceable under the Statute of Frauds.

We also note that the defendant has filed a cross-appeal in this case. In his cross-appeal, the defendant raises the issue that the circuit court erroneously denied the second count of his motion to dismiss, in which he stated that the plaintiff had sold tract I without notice to the defendant, and under the theory of the election of remedies, the plaintiff had no cause of action. Because of our disposition of the direct appeal, it is unnecessary that we consider the defendant’s cross-appeal. This court will not consider an issue to determine an abstract question of law.

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

Affirmed.

HARRISON and WELCH, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIJAH STANCIEL et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1 — 88—0416,1—88—0417 cons.
    Opinion filed December 11, 1991.
    — Rehearing denied March 26,1992.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant Violetta Burgos.
    Kenneth Jones and Philip Kujowa, both of State Appellate Defender’s Office, of Chicago, for appellant Elijah Stanciel.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Loren A. Seidner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendants, Elijah Stanciel and Violetta Burgos, appeal from their convictions of murder of a three-year-old child, Electicia As-bury, who was Burgos’ daughter (the child). Stanciel argues on appeal that: (1) he was illegally arrested; (2) his sixth amendment right to confront witnesses against him was violated by the trial court’s consideration of codefendant Burgos’ statement in finding him guilty of murder; (3) he was deprived of a fair trial because the trial court considered the irrelevant testimony of bite marks on the child’s body; and (4) his sentence of 60 years’ imprisonment was an abuse of discretion. Burgos argues on appeal that: (1) the State failed to prove beyond a reasonable doubt her guilt of murder on the basis of accountability; and (2) her sentence of 60 years’ imprisonment was an abuse of discretion.

During the hearing on the motion to suppress, there was testimony that Burgos stated that the child was injured when she fell while carrying the child up some stairs. She further stated that she temporarily lost custody of the child in 1984 after the child suffered a broken leg in a child abuse case. The police learned that the lease for Burgos’ apartment was in the name of Stanciel, who was Burgos’ boyfriend and who had been charged in 1984 with fracturing the child’s leg.

Witnesses for the State testified that Detectives Gildea and Stevens and two youth officers arrived at Stanciel’s apartment at about 6:30 a.m. Stanciel answered their knock on the door. They asked Stanciel if they could come into the apartment, and Stanciel consented. Stanciel’s help was requested in the investigation of the child’s death. He was asked if he would come to their “office.” Stanciel was told he did not need to accompany them to the police station. He agreed to go with them, and he was taken without handcuffs in a police car.

At the police station, Stanciel was placed in an interview room. Stanciel told the police that he still had a relationship with Burgos and that he had contact with Burgos as recently as the date of the child’s death. The police left him in the interview room and went into another room to talk with Burgos. Burgos was told that Stanciel said that she and the child had stayed overnight at his apartment and that this was contrary to what she had stated before. She then admitted that she still had a relationship with Stanciel and that she and the child had stayed overnight at his apartment. Burgos said that she had been reluctant to admit her relationship with Stanciel because after the 1984 incident, the child had been taken away from her, and one of the conditions of returning custody to her was no contact with Stanciel. She maintained a separate address from him. She stated that Stanciel had punched the child.

The police then returned to talk with Stanciel and advised him of his constitutional rights. Stanciel then made an incriminating statement. The incriminating statement was made about 30 minutes after defendant was placed in the interview room. Felony review was contacted, and Assistant State’s Attorney Gonzalez responded. She advised Stanciel that she was an assistant State’s Attorney, but that she was not his attorney. She advised him of his Miranda rights, and he responded that he understood each right. She asked him if he wished to speak to her, and he said yes and that he wanted to set everything straight. He spoke to her, and she asked him whether he wanted to give a written statement or a court-reported statement. He said no because he had a vision problem and could not read well. He then made incriminating statements. Later, in response to Stanciel’s questions, she told him that he could not go home and that he was charged with murder. He said he wanted to speak to an attorney to see whether or not he should give a statement. She informed him that she could not speak to him anymore because he wanted to speak to an attorney. No further questions were asked.

At the hearing on Stanciel’s motion to suppress, the trial court indicated that then and at defendants’ joint trial, it would consider a codefendant’s statements only in connection with that codefendant.

Stanciel testified to the following at the hearing. He was 26 years old, single, and had been legally blind since birth. At 6 a.m. on April 20, 1986, he was alone in his apartment when there was a knock on the door. He asked who was there, and the police answered. Someone said to open up, and he opened the door. The police pushed their way into his apartment. One of the detectives had a long black stick, which he pushed against Stanciel’s chest. Stanciel then backed up to his closet, and three other detectives came in. The four detectives remained in the apartment while he got dressed. The largest of the detectives handcuffed him in the back. They led Stanciel to the car although he had not agreed to go to the police station. He was put in the back seat and taken to the police station.

Stanciel was led to an interview room. One hand was cuffed to the wall, but he was able to sit down. Stanciel was questioned by police.

Later that afternoon, questioning resumed by Detective Baldree. Stanciel still had not been advised of his rights. Baldree told Stanciel that he was going to take a hair sample and teeth tests. Baldree returned, removed the handcuffs, and took Stanciel for the tests. Teeth prints and hair were taken from him.

After the tests, Baldree told Stanciel he was not going to make any telephone calls. He handcuffed Stanciel to the wall again and left. Later, Baldree told Stanciel he wanted Stanciel to talk to the State’s Attorney, and he put something up, that he could not see, against Stanciel’s head. Baldree said that he would blow Stanciel’s head off and referred to Stanciel’s refusal to talk to the State’s Attorney and to sign papers. Stanciel then agreed to sign papers because he was scared for his life. Baldree left the room and returned with the State’s Attorney, whom he told that he wanted to see an attorney. She stepped out of the room with Baldree. When she returned, she said that he could see an attorney now, which was the first time he had been advised of his right.

The trial court denied Stanciel’s motion to suppress.

Defendants waived the right to a jury trial.

Police officer Gildea testified to the following at the trial. Burgos related the following to him. She could not account for the injuries to the child other than her fall while taking the child upstairs. When she got to the apartment, she noted that the child was not breathing. She took the child inside and poured water down her throat and placed her in a bath in an attempt to revive her. When that failed, she wrapped the child up and called 911. In 1984, the child suffered a broken leg in a case of child abuse and Burgos temporarily lost custody, and Burgos got custody back in October 1985.

In response to Gildea’s question how the child received the injuries that caused her death, Burgos related the following. She and the child were at Stanciel’s apartment at approximately 10 a.m. when the child urinated on the floor. Stanciel spanked the child. Later, when the child spit up on the floor, Stanciel punched the child twice in the stomach. After spending some more time at the apartment, the child became unconscious. Burgos left the apartment and carried the child, who could not walk. They fell going upstairs, and she tried to revive the child but could not revive her. Burgos also stated that since March, Stanciel had taken over the disciplining of the child, and the punishment sometimes involved spanking (sometimes with a strap) and sometimes exercises, such as headstands.

Gonzalez spoke to Stanciel, who related the following. He was in charge of disciplining the child since March 1986. He disciplined her by spanking, using a belt, and by striking. On three occasions, he used a belt with a buckle. On April 19, the child urinated on the floor and he spanked her twice on the buttocks. Later, she spit up food, and he struck her twice on the left side of her stomach area with a closed fist. She then vomited the food but refused to pick up the food. He struck her once more on the side of her stomach with his closed fist.

Gonzalez spoke to Stanciel again in the evening, and Stanciel related the following to her. After the spanking incident, he patted the child, who fell on her knees, and that is how she received a forehead injury. In the afternoon, after the child spit up her food, he punched her on the side of the stomach because her buttocks were too raw. Later, Burgos called him and said that something was wrong with the child. He met them in the alley, and at that time the child was limp and unconscious. He carried the child to Burgos’ building, and Burgos tried to revive her.

Stanciel also related the following. He bit the child once in the back of the ear and on the chin, and he pointed out on photographs these bite marks as well as forehead marks and the bruised area of her stomach that he caused by punching her at least three times. The marks on her arms probably resulted from his grabbing her. The marks on her legs were probably from his disciplining her.

Gildea testified that Stanciel related the following to him. He had taken over the child’s discipline for some months. On many occasions, he administrated punishment, including beatings with a belt, exercises and striking in various manners. After the child urinated on the floor of his apartment, he spanked her. Hours later, the child spit up on the floor, and he punched her twice in the stomach with a closed fist. Some hours later, Burgos and the child left.

Dr. John P. Kenney testified at the trial to the following. He was a pediatric dentist and he also served as chief consultant forensic dentist for the Cook County medical examiner’s office. He examined the child’s body, which was covered with numerous bruises and marks. There were approximately 26 injuries that could have been caused by teeth. Teeth were very individual and would leave identifiable marks in the objects bitten. Bite marks on the child were matched with models of defendants’ teeth. The bite on the right arm, the older bite mark on the right buttock, and two marks on the back were consistent with Burgos’ teeth. The bite mark on the right thigh corresponded with Stanciel’s teeth. The marks inflicted by Burgos were done over a long period of time. There were several bite marks on the body that he was not able to individualize, but some of them were self-inflicted. He was not qualified to determine whether any of the wounds contributed to the child’s death.

Dr. Mitra Kalekar testified that she was deputy medical examiner for Cook County and that her field of expertise was forensic pathology. She performed an autopsy on the child and testified to numerous scars, lacerations, bruises, and abrasions on the child’s body, including her face, head, chest, abdomen, back, extremities, and vagina. Dr. Kalekar conducted an internal examination of the child that revealed a ruptured intestine and injuries to the bowels and to the liver. These injuries were sustained as a result of blunt trauma about her abdomen.

Death was caused by multiple injuries, which were sustained as a result of multiple repeated blunt force injuries to the child’s body. But the liver laceration, the intestinal tear, or the head injuries could have killed her. The blunt trauma and the abscess on the buttocks could have killed her eventually. Dr. Kalekar could not determine that a particular injury was the cause of the death by blunt trauma. Blunt trauma could result from falling, but the majority of the injuries was not caused as a result of falling, including the lacerations of the liver and the small intestine. The injuries to the liver and intestine occurred up to 12 hours prior to death.

There was a stipulation that Stanciel was 26 years old, Burgos was 23 years old, and that the child was three years old.

The trial court made the following findings at the close of the evidence. The brutality of the child existed over a long period of time. There was no question that defendants inflicted the bite marks, but there was no strong evidence that there was any penetration into the child’s vagina. There was no one else around except defendants when she was beaten. The court stated:

“In their statement they say this individual here, this man, was beating this child and Ms. Burgos did nothing.”

The trial court found that both defendants contributed to the child’s death and found defendants guilty of murder. There was a finding of not guilty as to aggravated criminal sexual assault.

Motions for a new trial were denied.

The presentencing report on Stanciel stated that he was visually impaired, that he graduated from the Illinois School for the Visually Impaired, that he took additional college courses, that he had been employed as a food manager for 3½ years, that he was single and never married, and that he had a one-year-old daughter being cared for by the Department of Children and Family Services.

Each defendant was sentenced to an extended term of 60 years’ imprisonment.

Stanciel first argues on appeal that he was illegally arrested by the police officers. The test is whether a reasonable innocent person would have considered himself arrested or free to leave. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 768.) An arrest takes place when the police inform defendant of a violation, the person submits to their control, and the evidence clearly shows that police intended to effect an arrest and that the defendant so understood them. (People v. Bradford (1981), 97 Ill. App. 3d 998, 1002, 423 N.E.2d 1179, 1183.) A trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. People v. Galvin (1989), 127 Ill. 2d 153, 162-63, 535 N.E.2d 837, 841.

The trial court believed the testimony that Stanciel was asked whether he would accompany the police to assist in the investigation of the child’s death and that he was told that he did not have to do so. At the hearing on a motion to suppress, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (Galvin, 127 Ill. 2d at 163, 535 N.E.2d at 841.) The visit was not so early in the morning that as a matter of law Stanciel’s consent was involuntary. The fact that the police could have asked Stanciel by telephone to assist but instead made the request in person also did not render his consent involuntary. There was no evidence that Stanciel was coerced other than his own testimony, which the trial court rejected. During criminal investigations police officers may question persons, and persons have a duty to cooperate with them. (People v. Miller (1980), 89 Ill. App. 3d 973, 977, 412 N.E.2d 175, 179.) What matters is whether a citizen’s freedom has been restrained, not the place where the police question a person. (Miller, 89 Ill. App. 3d at 977, 412 N.E.2d at 179.) As stated in Miller, the totality of the circumstances was not such that a reasonable, innocent person would have considered himself not free to leave. The fact that Stanciel made an incriminating statement approximately 30 minutes after being placed in the interview room also indicates Stanciel was not being held under arrest.

Stanciel argues that his statement also should be suppressed on the basis that he was threatened and beaten. But again, the trial court could have disbelieved this testimony and found that Stanciel’s statement was freely given.

We hold that the denial of the motion to suppress was not manifestly erroneous.

Stanciel argues that his sixth amendment right to confront witnesses against him was violated because the trial court considered Burgos’ statements that Stanciel was in charge of disciplining the child and that he spanked and punched the child. Stanciel refers to the trial court’s statement that “[i]n their statements they say this individual here, this man, was beating this child and Ms. Burgos did nothing.”

The State responds that the trial court was aware of the law and considered only the admissible evidence as it pertained to Stanciel, and the State refers to the trial court’s statements that it was separating the evidence as to each defendant. The State contends that the trial court’s statement referring to “their” statement that Stanciel beat the child did not establish that the trial court considered inadmissible evidence because the trial court overruled objections to evidence on the basis that it would not consider that evidence against Stanciel.

A criminal defendant is deprived of the right under the sixth amendment to confront the witnesses against him in a jury trial when evidence is introduced of a non-testifying codefendant’s incriminating extrajudicial statements. (Bruton v. United States (1968), 391 U.S. 123, 135-36, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1627-28.) The confrontation clause bars admission of a nontestifying codefendant’s confession incriminating defendant at defendants’ joint trial, even if the jury is instructed not to consider it against defendant and even if defendant’s own confession is admitted against him. (Cruz v. New York (1987), 481 U.S. 186, 193, 95 L. Ed. 2d 162, 172, 107 S. Ct. 1714, 1719.) The confrontation clause is also violated where the trial court, in a bench trial, relies on a codefendant’s confession as substantive evidence against defendant because a codefendant’s confession is inherently unreliable. Lee v. Illinois (1986), 476 U.S. 530, 531, 546, 90 L. Ed. 2d 514, 520, 530, 106 S. Ct. 2056, 2057, 2065.

It is to be presumed that the trial court, sitting as the trier of fact, considered only competent evidence. (People v. Vinson (1977), 49 Ill. App. 3d 602, 607, 364 N.E.2d 364, 368.) A defendant is not deprived of his sixth amendment right to confrontation in a bench trial in which there was evidence of a codefendant’s inculpatory statements because of the trial judge’s ability to restrict his use of improper evidence. (People v. McNeal (1977), 56 Ill. App. 3d 132, 138-39, 371 N.E.2d 926, 931-32.) Defendants are not prejudiced by the trial court’s reading of each defendant’s statement where the trial court specifically states that it would not consider what one said against the other. People v. Monroe (1984), 125 Ill. App. 3d 592, 595-96, 466 N.E.2d 393, 395-96.

Even if the trial court relied on Burgos’ statement to find that Stanciel beat the child, any such error was harmless because there was sufficient evidence to find Stanciel guilty where he confessed to hitting the child, where physical evidence corroborated that the child received injuries to the liver and intestine that were consistent with a punch in the stomach, and where there was evidence that the child died from multiple blunt trauma.

Stanciel next argues that the trial court’s consideration of testimony of the forensic dentist that some bite marks matched his teeth deprived him of a fair trial and that the marks were irrelevant where: (1) the cause of death was multiple blunt injuries; (2) the indictment alleged that defendants killed the child by beating her with hands and a belt; (3) the medical examiner did not testify that the bites contributed to the death; and (4) the fact that Stanciel bit the child did not make it more or less likely that he was responsible for the blunt force injuries that caused the child’s death.

The State first responds that the issue was waived because Stanciel did not timely object to the relevance of the forensic dentist’s testimony, did not raise the issue in his motion for a new trial, and permitted the line of questioning about the bite mark evidence by stating that he had no objection to a narrative explanation by Dr. Kenney about the process of comparing defendants’ teeth to the bite marks.

Whether or not the issue was waived, the issue should be addressed because the admission of irrelevant and prejudicial evidence would have denied defendant a fair trial. See People v. Young (1989), 128 Ill. 2d 1, 46-47, 538 N.E.2d 461, 471 (plain error rule permits consideration of an alleged error affecting substantial rights).

The State argues that the evidence of the prior acts of abuse was relevant to show Stanciel’s state of mind where the State had to prove that Stanciel acted with the intent or knowledge that his acts would cause death or great bodily harm. .

The State relies upon the following cases. In People v. Heredia (1989), 193 Ill. App. 3d 1073, 550 N.E.2d 1023, defendant was convicted of the voluntary manslaughter of his wife, who died of multiple gunshot wounds. The court held that evidence of his alleged prior assault of his wife was relevant to defendant’s relationship with his wife where he argued that his actions were accidental or reckless. (Heredia, 193 Ill. App. 3d at 1086, 550 N.E.2d at 1031.) In People v. Wachal (1987), 156 Ill. App. 3d 331, 509 N.E.2d 648, defendant, who was tried for voluntary manslaughter of a child, argued that the trial court erroneously admitted evidence of his prior abuse of the child, including some bruises and bite marks. Defendant had hit the child with his arm and fist, and the court held that the evidence was relevant to the issue of defendant’s intent or mental state at the time he struck the child the final time. Wachal, 156 Ill. App. 3d at 336, 509 N.E.2d at 652.

Stanciel does not attempt to distinguish these cases or to argue that the bite mark evidence was irrelevant to show his state of mind. We hold that the bite mark testimony of Dr. Kenney was relevant to show that Stanciel intended to do great bodily harm to the child when he hit her.

Stanciel next argues that his sentence of 60 years’ imprisonment was an abuse of discretion because the trial court failed to consider his rehabilitative potential, lack of prior convictions, and consistent employment history despite his blindness. He also argues that the trial court’s rejection of a death sentence was a finding that his conduct was not brutal or heinous because a death penalty could be imposed if the death of a child (under 12 years old) resulted from “exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(7).

Stanciel was eligible for an extended-term sentence because the felony was committed against a victim under 12 years of age. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(3)(i).) The possible sentence for murder was 20 to 40 years’ imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—l(a)(1)(a)) or natural life imprisonment if the murder was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty” or if any of certain aggravating factors were present (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—l(a)(1)(b)). An extended-term sentence for murder was 40 to 80 years’ imprisonment. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-2(a)(1).

We hold that Stanciel’s mid-range extended-term sentence was not an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883 (absent an abuse of discretion, the sentence of the trial court may not be altered upon review).

Burgos argues that her conviction for murder based on accountability should be reversed because there was no evidence that she aided Stanciel in the murder and because the evidence was that she was only present during the beating and did nothing more besides renew her relationship with Stanciel and permit him to discipline her child. The State responds that Burgos was accountable for the child’s death because: (1) she was present; (2) she permitted Stanciel to assume the role of disciplinarian; (3) she covered up Stanciel’s involvement in the crime; (4) she was aware of Stanciel’s physical punishments and permitted them to occur and continue; (5) she subjected her child to this brutal treatment by bringing the child to Stanciel’s apartment; (6) she participated in prior beatings; and (7) she enabled Stanciel to fatally abuse her child where Stanciel had no access to the child other than through Burgos.

The relevant section of the accountability statute states:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1989, ch. 38, par. 5—2.

The elements of accountability were stated in People v. Valen (1989), 183 Ill. App. 3d 571, 577, 539 N.E.2d 261, 264, to be: (1) defendant elicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a concurrent, specific intent to promote or facilitate the commission of the offense. Mere presence at the scene of a crime, even with knowledge that the crime is being committed, is not enough to prove participation. Valen, 183 Ill. App. 3d at 577, 539 N.E.2d at 264.

Burgos may have been guilty of neglect of the child in this case. But the issue is whether there was sufficient evidence to prove beyond a reasonable doubt that she aided, abetted, or encouraged Stanciel to punch the child in the stomach with sufficient force to rupture the child’s intestine and tear her liver.

The only evidence of Burgos’ actions that can be considered is her statement to the police. She stated that Stanciel had taken over the disciplining of the child, that sometimes the punishment involved spanking, and that Stanciel spanked and punched the child in her presence on that day. The child may not have died on that day if Burgos had not taken her to Stanciel’s apartment, but the intent to facilitate the commission of murder cannot be inferred from Burgos’ presence at Stanciel’s apartment. There was no evidence that she permitted Stanciel to beat the child that day or at any other time. There was no evidence either whether she disapproved or actively opposed Stanciel’s hitting the child that day. Her mere presence during the beating is insufficient to find that she aided the commission of murder. (People v. Carpenter (1979), 74 Ill. App. 3d 770, 775, 393 N.E.2d 50, 54.) Burgos’ murder conviction is therefore reversed.

The judgment of the trial court as to defendant Stanciel is affirmed, and the judgment of the trial court as to defendant Burgos is reversed.

No. 1 — 88—0416, Affirmed.

No. 1 — 88—0417, Reversed.

RIZZI and GREIMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF RENEE MIROBALLI, Petitioner-Appellant, and JOSEPH MIROBALLI, Respondent-Appellee.
    First District (4th Division)
    No. 1 — 90—1886
    Opinion filed December 26, 1991.
    —Modified on denial of rehearing March 26, 1992.
    Dan Walker, Jr., of Chicago, and Cesario & Walker, of Hinsdale (Kathleen M. Vaught, of counsel), for appellant.
    Kaufman, Litwin & Cities and Anesi, Ozmon & Rodin, Ltd., both of Chicago (Glen Kaufman, Stuart N. Litwin, and Richard A. Kimnach, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Petitioner, Renee Miroballi (now Renee Gandy), appeals from a directed verdict of the circuit court of Cook County denying her petition for leave to remove the parties’ two minor children from Tinley Park, Illinois, to Farmington Hills, Michigan. The only issue on appeal is whether the trial court’s finding that the best interests of the children are served in denying the petition for removal is against the manifest weight of the evidence.

We reverse and remand.

Petitioner and respondent, Joseph Miroballi, were married on March 6, 1977, and divorced on April 22, 1987. The judgment of dissolution of marriage provided for joint custody of the parties’ two minor children, Joseph Jr. and Craig. The children live with petitioner, and respondent is granted visitation. In July 1989, petitioner married James Gandy, who works and lives in Farmington Hills, Michigan. Petitioner filed a petition for leave to remove the children from Illinois to Michigan. The basis of removal was that petitioner would like to live with both her husband and children full time.

Respondent testified that he is a practicing attorney in Chicago. He further stated that his schedule requires that he work Monday through Friday, and two or three times per month on Saturday mornings. Under the terms of the joint custody agreement, respondent may see his children (1) on alternate weekends from 5 p.m. Friday until 7 p.m. Sunday; (2) one weekday per week from 4 p.m. to 8:30 p.m.; (3) during graduations and other school activities; (4) on their birthdays, on his birthday (for a reasonable time), and on Father’s Day; (5) for half of the children’s Christmas vacation; (6) for half of the children’s summer vacation; and (7) for all of Easter vacation in alternate years.

Respondent stated that he spends alternate weekends with the children. He also stated that he has attended a few of their baseball games and school activities and has seen them on special holidays. On cross-examination, respondent testified that he has never taken the children for part of their Christmas or summer vacations and has never regularly visited with the boys one weekday evening per week. He further testified that he has not consistently visited the children each year on their birthdays.

Petitioner testified that she and the parties’ two children live in a single-family townhouse located in Tinley Park, Illinois. She further stated that Joseph Jr. is in the seventh grade at Central Junior High School and that Craig is in the third grade at Sandich Grade School. The witness stated that both schools offer a general curriculum and are struggling to keep up with the national average. Both children have participated in Saturday morning bowling leagues, floor hockey, and little league baseball. The children also attend religious education classes during the weekends. Petitioner stated that she has maintained full responsibility for enrolling and taking the boys to religious classes and recreational activities.

Petitioner testified that if the children were permitted to live in Farmington Hills, they would live in a larger home and in a neighborhood that has more children in their age group. She stated that the community has an active park district which offers a wide variety of recreational activities for children, including sporting and nonsporting programs. The witness also presented evidence to suggest that the children would receive a higher quality education if they were permitted to relocate to Farmington Hills. In national testing, the Farmington Hills schools’ mean score is in the 75th percentile, with the national average being in the 50th percentile. Petitioner stated that she has worked as a special education teacher in Burbank, Illinois, for 13 years. She stated that if she could live with her husband in Michigan she would stop working and devote her time to her family.

Petitioner’s new husband, James Gandy, owns and operates his own business as an independent sales representative for lighting manufacturers. Gandy has maintained an office in and around Farmington Hills, Michigan, for the past years. His annual income is $80,000. Gandy testified that his sales territory encompasses lower Michigan and northern Ohio. The witness stated that he cannot live in Chicago and continue to service his clients. He stated that he spends five days driving around his territory and one day in the office. He returns to his Farmington Hills home at the end of each day.

During the hearing on the petition for removal, the court found that neither parent’s motives were improper with regard to either seeking or restricting removal of the children from Illinois. The court found that respondent had exercised visitation rights on a basis consistent with his profession (as an attorney) and work schedule. The court further found that petitioner had not presented any concrete evidence to compare the quality of life in Michigan over that in Illinois in relation to the schools, parks, and community services. The court granted respondent’s motion for a directed verdict, finding that petitioner had not met her burden of proving removal was in the best interests of the children. This appeal followed.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 609(a)) governs petitions for removal. This section provides:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interest of such child or children is on the party seeking the removal.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 609(a).

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, examined the application of section 609 of the Act. The court recognized that “[a] determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” (Eckert, 119 Ill. 2d at 326.) The court set forth factors to assist the trial court in determining whether the party seeking removal has satisfied the burden of proving that such removal is in the best interests of the child.

“These factors are: (1) the likelihood of enhancing the general quality of life for both the custodial parent and the child by allowing the move; (2) the motives of both parents: the motive of the custodial parent in seeking removal and the motive of the noncustodial parent in resisting the removal; and (3) the visitation rights of the noncustodial parent, which involves a determination of whether a realistic and reasonable visitation schedule can be reached if the move is allowed.” (In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 188, citing Eckert, 119 Ill. 2d at 326-27.)

The trial court’s decision as to what is in the best interests of the child should not be reversed unless it is against the manifest weight of the evidence. Eckert, 119 Ill. 2d at 328.

First, we consider the likelihood of enhancing the general quality of life for the children as well as the custodial parent. We believe that the quality of life of the children and respondent will be directly enhanced by permitting removal to Farmington Hills, Michigan. Petitioner testified that if she moves, she would not have to work. She would be free to focus on and spend more time with her children and her husband. In addition, she would no longer have to maintain two households. We believe this change will directly enhance the children’s quality of life. We agree with petitioner that being united with her husband in the same location as her children will more than likely enhance her happiness, her well-being, and her general disposition.

Petitioner presented evidence suggesting that the children’s lives would be enhanced by relocating to Michigan, because they would receive a better education and would live in a nicer neighborhood. However, we give deference to the trial court’s finding that the children’s lives with regard to these factors would not be any better in Michigan than in Illinois. We are satisfied that, all else being equal, the children’s general quality of life will be directly enhanced by the mother not having to work and by living in a traditional family setting.

We also believe that the children’s quality of life would be indirectly enhanced by moving to Michigan. This court has consistently recognized that where the general quality of life for the custodial parent is enhanced the child’s quality of life is indirectly enhanced. In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 1081; In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 745; In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 189; In re Custody of Arquilla (1980), 85 Ill. App. 3d 1090,1093.

Having acknowledged that petitioner will be happier by moving, it is reasonable to conclude that the children’s lives will be indirectly enhanced. In Carlson, the court addressed a similar situation and stated the following:

“[T]he principal indirect benefit to the children of granting the petition to remove would derive from the effect on their mother from the establishing of a new and successful marriage relationship. The mother’s quality of life would be significantly improved, both by being able to live with her new husband and by not needing to work outside the home. In the new arrangement the mother would have the time and energy to be a part of her children’s life in ways that had not been possible in the past, which would certainly enhance the mother’s quality of life.” (Carlson, 216 Ill. App. 3d at 1081.)

“Because [petitioner] wants to be with her husband, we can only conclude that the couple and therefore the family which consists of [the children] will be happier by allowing removal.” (Zamarripa-Gesundheit, 175 Ill. App. 3d at 189.) We therefore find that the children’s general quality of life will be indirectly enhanced by permitting removal.

Next, we consider the motives of the parents. There were no allegations that the motives of the parties in either seeking or resisting removal were improper. Nor was there evidence in the record to suggest improper motives. We therefore need not address this factor.

We must now consider respondent’s visitation rights and address whether a realistic and reasonable visitation schedule can be reached.

The record establishes that the parties have been flexible with regard to respondent's visitation rights in the past. Petitioner stated that if removal is permitted a liberal visitation schedule could be arranged, suggesting (1) half of Christmas vacation; (2) Easter vacation; (3) half of the summer; (4) three-day weekends during the school year; and (5) any other alternative that could be arranged. Petitioner also testified that she was willing to share in the financial cost of transportation for visitation, including airline travel. Respondent contends that the proposed schedule is unreasonable because he works “for all or part of six days a week” and his free time is limited to weekends, court holidays, and vacations. He further argues that no reasonable and realistic visitation can be fashioned with the children residing in Michigan.

It is apparent that respondent has enjoyed a close and loving relationship with his two sons, albeit he has not exercised his visitation rights to the fullest extent. However, preserving the children’s relationship with their father must be weighed against the enhancement of the quality of life for both the mother and her children. (In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 190.) “On balance, we do not think that the interests of the custodial mother should be subordinated to those of the noncustodial father.” Zamarripa-Gesundheit, 175 Ill. App. 3d at 190.

Although the children would no longer live in the same city with their father, they would live close enough to spend time with him and maintain ties with their extended family. There are hourly flights from Detroit to Chicago and a round-trip ticket costs about $45. The visitation schedule may not always be convenient; however, we believe it provides a workable means for respondent to preserve and foster his relationship with his children.

In view of the facts stated above, the balance of the record, and in light of the factors set forth in Eckert, we find that the trial court’s decision denying the petition for removal was against the manifest weight of the evidence. We therefore reverse the trial court’s ruling denying the petition for removal and remand the cause for further hearing consistent with this opinion.

Reversed and remanded.

JIGANTI, P.J., and McMORROW, J., concur.