text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MONROE LAMPKIN, Defendant-Appellant.
    Third District
    No. 3—85—0369
    Opinion filed January 26, 1990.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and James R. Benson, State’s Attorney, of Paxton (Marcia L. Friedl, Assistant Attorney General, of Chicago, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Monroe Lampkin, was found guilty of the murders of Illinois State trooper Michael McCarter, McCarter’s brother-in-law Donald Vice and Paxton police officer William Caisse. He was sentenced to three concurrent terms of imprisonment for natural life. We reverse and remand for a new trial.

The defendant’s previous conviction for these murders was reversed, his death sentence vacated and the cause remanded for a new trial by the Illinois Supreme Court because inadmissible evidence was presented at the defendant’s first trial. (People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 50.) The facts are adequately set forth in the supreme court opinion; however, those facts necessary to the reaching of our decision on the issues presented will be set forth.

On the evening of April 7, 1979, Illinois State trooper Michael McCarter and Paxton police officer William Caisse stopped four vehicles along a stretch of Interstate 57. Donald Vice, McCarter’s brother-in-law, was a passenger in trooper McCarter’s unmarked car. McCarter and Caisse managed to stop three of the vehicles just south of the Paxton exit. After a conversation and exchange of documents between McCarter and Caisse, Caisse stayed with the three stopped vehicles, while McCarter, accompanied by Vice, proceeded south after a Ford Thunderbird which had not stopped. The defendant was apparently in the Thunderbird. The record shows that the Thunderbird pulled off on the shoulder about a mile further south, just south of the County Road 17 overpass. McCarter pulled his vehicle up behind the Thunderbird, also just south of the the overpass.

A recording of radio transmissions, played at trial, shows that at approximately 9:01 p.m. McCarter radioed Caisse to bring the other vehicles south to McCarter’s location. McCarter stated that he had a subject giving him a hard time. Approximately a minute and a half later, McCarter is heard to say, “I’m shot, I’m shot.”

Shortly thereafter Caisse and the other three vehicles pulled up on the shoulder just north of the County Road 17 overpass in the following order: a red pickup truck with a covered bed, a van, a Buick and Caisse’s squad car. As they pulled up, a couple in the van saw flashes and heard gunshots coming from near the top of the overpass. McCarter walked hurriedly passed their vehicle back to Caisse’s squad car. McCarter then walked back south to the overpass. Caisse pulled his squad car up under the overpass in front of the red pickup truck. The couple saw Caisse assist McCarter into the front passenger seat of Caisse’s squad. At about this time, David and Clyde Lampkin got out of the pickup and walked toward the overpass. They were waived back by the officers.

After McCarter was placed in Caisse’s car, Paxton police officer Larry Hale arrived on the scene and parked at the north end of the line of vehicles behind the Buick. He ran up to Caisse’s squad, and as he did so he saw two muzzle flashes coming from the south side of the overpass near the top. He returned fire with his pistol. At trial, Hale agreed that he made a statement while in the hospital a few days after this incident, in which he said that after he fired his weapon, Caisse came from around the south end of the pillar which supports the overpass and asked Hale what he was shooting at. Hale reached inside Caisse’s squad in order to pop the trunk, spoke with McCarter briefly and then went to the trunk and removed a rifle, handing it to Caisse. Hale returned to his vehicle to radio for more assistance and to retrieve his own rifle and bulletproof vest.

Meanwhile the couple in the van observed David Lampkin again get out of the pickup, walk to the rear of the vehicle and get into the back of the pickup, closing the camper top behind him. David Lampkin emerged from the back of the pickup, looked around, and pulled a rifle from the back of the pickup. He stepped to the left side of the pickup and fired at Caisse, who was standing next the passenger side of his squad car. Caisse immediately fell to the ground. David then walked up to where McCarter was seated in Caisse’s car and fired a shot into McCarter. The van then pulled out and drove to Rantoul.

Hale having retrieved his rifle and vest from the trunk of his car walked back toward the overpass. He stopped at the Buick and asked the driver what he was doing there. At about this time, David Lamp-kin approached Hale and shot him in the leg. In the exchange of gunfire that followed, Hale was injured and David was killed. The Buick drove away during the exchange of gunfire.

Within moments other officers and emergency personnel arrived on the scene. David Lampkin was found dead on the shoulder of the road. Clyde Lampkin was found standing near David’s body and was arrested. Further south, the body of Caisse was found on the ground near his squad car. McCarter was found dead in the front passenger seat of Caisse’s squad. The body of Donald Vice was found on the ground near the open back passenger door of McCarter’s unmarked car. Cleveland Lampkin was found fatally wounded lying in the front passenger seat of McCarter’s car. Cleveland’s lower body, legs and feet were hanging outside the open door. The defendant was arrested 26 hours later outside Paxton and stated to arresting officers that he had been shot by a trooper. The defendant had a bullet wound to the left wrist.

The evidence presented at trial showed that both McCarter and Vice were shot by a weapon firing .38 caliber ammunition. A live .38 caliber bullet was recovered from the front seat of the Thunderbird. Other live .38 caliber shells and casings were recovered from a grassy area on a hill on the west side of Interstate 57, just south of the County Road 17 overpass. Some of these shells and casings had blood on them. Still other .38 caliber shells and casings were recovered on County Road 17 near the western end of the bridge. A .38 caliber bullet which passed through McCarter’s body was discovered in McCarter’s clothing. None of the weapons recovered on the scene were found to have fired these bullets.

On appeal, the defendant contends his conviction must be reversed and the cause remanded for a new trial because the trial court erred in allowing the hypnotically enhanced testimony of a State witness. In a supplemental argument, the State argues that the defendant has waived this issue by failing to raise it in the written post-trial motion. We, however, choose to address the issue as plain error (107 Ill. 2d R. 615(a)).

Over defense counsel’s objection, the State was allowed to present the testimony of William Brinegar. At trial, Brinegar testified that he and his wife were returning from Rantoul around 9 p.m. on April 7, 1979. As they drove north on Route 45 toward Paxton, they noted flashing red lights on Interstate 57, which at that point runs parallel to Route 45. When Brinegar reached County Road 17, he turned left and drove up on the overpass over 57. He stopped in the westbound lane of 17, near the west end of the bridge. He exited his vehicle, leaving the door open, and walked to the south side of the bridge. He looked down onto the southbound lanes of the Interstate and noted two cars parked on the shoulder. The car farthest to the south was a light-colored Thunderbird, with the driver’s door open. Brinegar noted that the glass in that door was broken.

Brinegar also noticed a dark-colored car parked behind the Thunderbird. Both the front and back doors on the passenger’s side of the vehicle were open. In the front doorway, Brinegar observed a man sitting on the ground with his head resting against the door post or front seat. He testified that he believes he saw this person move a few times. The man's left arm was over his chest, and his right arm was down to his side. When Brinegar was shown an autopsy photograph of Cleveland Lampkin and asked if he recognized the person, Brinegar responded, “Not entirely, it looks like the subject I saw.” (We note that at the first trial when Brinegar was shown a photo of Cleveland he responded, “That was the man that was lying along the side of the car. *** He was sitting in a sitting position, his head and shoulders on the seat of the car.”)

Brinegar noticed also the body of a man lying on the ground near the back door of the same car. The person’s head was facing north. He could not determine how this person was dressed. Brinegar then heard a “pop,” and on hearing two more “pops” realized that they were gunshots. He returned to his car and heard four or five more shots as he drove away.

The record shows that on the morning of April 8, 1979, Brinegar gave a statement to Illinois Department of Law Enforcement (IDLE) agents John Sandusky and Floyd Aper. Sandusky made a written report of the statement. Two days later Brinegar and his wife underwent hypnosis. Brinegar was hypnotized by Agent Connell Smith of the IDLE at a motel near Paxton. Agent Aper was the only other person present at the tape-recorded interview.

In a pretrial motion in limine and again at trial, defense counsel objected to the admissibility of Brinegar’s testimony. The trial court denied the motions, stating at the pretrial hearing that the ruling of the Illinois Appellate Court at that time was that such testimony was not per se inadmissible. However, the trial court stated that some foundation as to the expertise of the person conducting the hypnosis would have to be established.

At the time of trial in 1985, two cases set forth a four-part requirement for the laying of a foundation for the admitting of hypnotically “refreshed” testimony. (People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848; People v. Gibson (1983), 117 Ill. App. 3d 270, 452 N.E.2d 1368.) These cases were discussed during the arguments on defendant’s motions in limine.

Smrekar concerned the use of hypnosis prior to the positive identification of a defendant by a witness. The Smrekar court established four criteria to be met before such testimony is admissible: (1) the hypnotist must be shown to be competent; (2) the evidence must indicate that suggestion was not used in the hypnosis; (3) the identification is corroborated by other substantial evidence unknown to the witness at the time the positive identification is made; and (4) the evidence must show that at the time of the occurrence, the witness had ample opportunity to view the defendant. People v. Smrekar (1979), 68 Ill. App. 3d 379, 388, 385 N.E.2d 848, 855.

Gibson also involved the use of hypnosis to help a witness identify a defendant. The Gibson court held that as part of the requirement that the hypnotist be competent, the hypnotist must be independent and not closely associated with either the prosecution or the defense. In Gibson, the court found that the State had failed to satisfy the competence requirement of Smrekar. The hypnotist’s training was the result of one week at a police school, and he had used hypnosis in actual interviews only two or three times before the interview in Gibson. In addition, the fact that the hypnotist was an investigative officer meant that the hypnotist was not “disinterested in procuring the success of the identification.” The Gibson court went on to find, however, that based on the other evidence in the case, the admittance of the hypnotically refreshed testimony was harmless error.

In the instant case, the hypnotist was an investigative agent with the Illinois Department of Law Enforcement. His training as a hypnotist consisted of a four-day, 30-hour seminar. He had used the technique 18 times prior to the interview of Brinegar. The only other person present at Brinegar’s hypnotic interview was also an IDLE agent. Brinegar admitted during an in camera interview that in the three days between the incident and the interview he had read about the incident in the newspaper and listened to radio and television. We find that under the criteria set forth in Smrekar and Gibson the State failed to establish a proper foundation for the hypnotically refreshed testimony of William Brinegar and that it was error to admit his testimony under the law at the time of trial.

In addition, the Illinois Supreme Court has recently ruled that the hypnotically induced testimony of a witness other than a criminal defendant is inadmissible per se. (People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513.) The ruling in Zayas applies to all cases, such as the instant case, which are still on direct appeal.

On review of the record and in light of the nature of this case, we do not find that the admission of this testimony was harmless error. None of the witnesses positively identified the defendant as the person firing the gun from the overpass or even being at the scene. The entire case against the defendant was based on circumstantial evidence. Brinegar was the only witness who could place Cleveland Lampkin near the spot where he was later found at a time when shots were still being fired. We note that while Dr. Ho testified as to the nature of Cleveland’s injuries, there was no evidence that he was rendered completely immobile by those injuries. Additionally, Brinegar’s testimony was used to support the State’s theory that the defendant, by firing from the overpass, distracted the attention of Officer Caisse and allowed David Lampkin to kill Caisse. The evidence against the defendant was not so overwhelming as to render the admission of Brinegar’s testimony harmless.

Because this issue may arise on retrial, we note that Brinegar’s prehypnotic recall is not rendered inadmissible by the holding in Zayas. However, the State will bear the burden of establishing the nature and extent of Brinegar’s prehypnotic recall. (See People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571.) We note that in the report of the initial interview, Brinegar does not mention the race of the individual he sees in the front doorway of McCarter’s car. He does not see this person move. Nor is there any indication in the report that Brinegar knew the direction from which the shots he heard were fired.

We shall also briefly discuss the other alleged errors raised on appeal because these issues may again arise on retrial.

The defendant contends the trial court erred in allowing Dr. Charles Beckman to testify as to the time in his opinion when Trooper McCarter suffered the fatal wound to his trachea. Beckman, a cardiothoracic surgeon, testified that, after reviewing the autopsy report of Dr. Ho and listening to the tape recording of the radio transmissions, it was his opinion that McCarter suffer the gunshot wound to the neck between the time he radioed Caisse to bring the other vehicles down to his location and when he is heard to say, “I’m shot, I’m shot.” The defendant argues that Beckman’s testimony was basically in the nature of an experiment and that the State failed to establish Beckman as an expert in “diagnosis by radio.”

We do not find the admission of this testimony to be error. Dr. Beckman was simply giving his opinion, based on the facts given to him, that McCarter had sustained the bullet wound to his neck prior to McCarter’s last radio transmission. The jury could take this opinion into account along with the evidence that McCarter was seen hurriedly walking to the rear of the line of vehicles and then back up to the overpass after he is alleged to have suffered the fatal wound which pierced his trachea. The defense could also possibly have presented testimony to counter Beckman’s opinion.

The defendant also alleges the trial court deprived the defendant of a fair determination of his guilt or innocence when it admitted a large number of “hideous” color photographs into evidence. The State responds that the defendant did not object when many of these photographs were admitted into evidence.

If a picture has sufficient probative value it may be admitted in spite of the fact that the photograph may be gruesome or inflammatory. (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) The admission of possibly prejudicial photographs lies within the sound discretion of the trial court. (People v. Landry (1977), 54 Ill. App. 3d 159, 368 N.E.2d 1334.) On review of the record, we note that much of the testimony and evidence in the instant case involved when particular gunshot wounds were sustained by the victims, the paths those bullets took through the bodies and which wounds were fatal. Many of victims were shot at different points in the the incident and by more than one weapon. Therefore, however “hideous” the photographs may be, they were one of the essential components in the jury’s determination. Given the nature of this case, the probative value of the photographs outweighed any alleged prejudicial impact, and the trial court did not abuse its discretion in admitting them.

The defendant also alleges that he was denied due process when the State failed to preserve crucial blood evidence.

The record shows that two vials of blood were taken from the bodies of each of the five men who died that night (it appears that three vials of blood were taken from David Lampkin’s body). A sample of the defendant’s blood was taken around the end of April. Deborah Verges, a technician at the IDLE’s Springfield lab, performed a basic ABO test on each of these blood samples. In addition, she forwarded a portion of each blood sample to the Bureau of Toxicology in Chicago.

Verges’ test of Cleveland Lampkin’s blood performed on April 9, 1979, showed he had type B blood. This finding was independently verified by the test done at the hospital prior to the surgery performed on Cleveland. The defendant’s blood was type O. Donald Vice and David Lampkin’s blood were also found to be type O. McCarter was type A. The samples taken from Caisse were found to have “lysed” and could not be tested. Blood taken from the clothing of Caisse tested positive for the presence of type A and type B blood. Samples taken from the concrete pillar and from bullets found on the hill tested type O. A hat found near these bullets had type A and type B blood on it.

A second lab technician, Parmod Dhawan, also tested some of the samples and, though it is not clear from the record, some inconsistencies with Verges’ findings were apparently found. We note Dhawan did not testify for either the prosecution or the defense, although certain problems regarding Dhawan’s report were presented to the jury to some extent. It appears that by the end of the summer of 1979 none of the whole blood samples had been properly preserved so that they could be further tested. Mark Stolorow, a third technician at IDLE, was later able to test the sample taken from the concrete pillar.

Of the five samples sent to Chicago, two were tested for drugs and alcohol. The results were negative. The samples were then placed in the Bureau’s freezer. On July 9, 1979, the Bureau sent written notice to the lab in Springfield that because of a shortage of freezer space the blood samples would be destroyed, unless the Bureau was instructed otherwise. The samples were thrown out on August 10, 1979. Approximately one week after the samples were destroyed the Bureau received a phone call, purportedly from the Attorney General’s office, asking if the samples still existed.

Because of the manner in which the samples were handled they could never be further tested by the defendant’s own experts or by the State. At least three person present that night had type 0 blood and yet further subcategorization of the blood samples was rendered impossible. We note the evidence regarding blood samples taken from various persons and items found at the scene was substantially the same as that presented in defendant’s first trial. The Illinois Supreme Court in its opinion was concerned, however, with Dhawan’s report, the report’s delivery to the defense and its presentation to the jury. From the discussion in the opinion it appears the supreme court believed the blood evidence admissible in this case.

In recent years the United States Supreme Court has addressed the issue of the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants. (California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528; Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333.) The Court stated in Trombetta: “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta (1984), 467 U.S. 479, 488-89, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534.) In addition, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process. (Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333.) In the instant case, there has been no showing of bad faith on the part of the State, although the record does reflect a fair amount of negligence in the handling of the blood evidence. The defense was free to point out to the jury that it could not independently test the IDLE’s findings. The jury could consider this fact in deciding what weight to give the blood evidence. Accordingly, we find the trial court did not err in admitting the blood evidence.

However, because the trial court erred in admitting the testimony of William Brinegar, the judgment of the circuit court of Kankakee County is reversed and the cause remanded for a new trial consistent with this opinion.

Reversed and remanded.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN ATWOOD, Defendant-Appellant.
    Fourth District
    No. 4—88—0693
    Opinion filed January 25, 1990.
    Rehearing denied February 27, 1990.

      Daniel D. Yuhas and Timothy M. Gabrielsen, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Norbert J. Goetten, State’s Attorney, of Carrollton (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On August 2, 1988, following a jury trial in the circuit court of Greene County, defendant Melvin Atwood was convicted of various drug offenses, including: three counts of unlawful delivery of cannabis, one count of unlawful possession of cannabis, five counts of unlawful delivery of a controlled substance, and one count of unlawful possession of a controlled substance. He was subsequently sentenced to two, consecutive seven-year terms of imprisonment for two convictions of delivery of a controlled substance containing cocaine. Lesser terms of imprisonment were imposed for the other convictions and were ordered to run concurrently with the first seven-year term of imprisonment. A fine, costs, reimbursement to the county for defendant’s use of court-appointed defense counsel, and a lien against defendant’s real and personal property were also ordered.

Defendant appeals, contending the court erred (1) in refusing to suppress evidence seized pursuant to a search warrant; (2) in ordering him to reimburse Greene County for the services of appointed defense counsel; (3) in sentencing him; and (4) in failing to give him sufficient credit upon his sentence for time he had spent in custody. We affirm the convictions but reverse the sentences and the order for reimbursement to the county. We remand for resentencing and for a new hearing in regard to reimbursement. In regard to credit for time spent in custody, the State agrees that upon any remand, the defendant is entitled to credit for 197 days against his sentence of imprisonment and $985 credit against his fines. We so order.

As defendant does not dispute the sufficiency of the evidence at trial to support the verdicts, we need discuss that evidence only briefly.

Joe Gromelski, a paid informant, testified in great detail to purchases he had made from defendant of marijuana and certain narcotic drugs on the dates alleged in the various counts of the information filed against defendant. This testimony was corroborated, also in great detail, by that of police officers who had also been involved (1) in setting up the purchases; (2) in searching Gromelski and his vehicle before he left to make the purchases; and (3) in following him to defendant’s home. Gromelski and the officers testified to a total of six purchases made between December 1987 and February 29,1988.

Deputy sheriff Rick Snyder testified at trial that, after Gromelski had made a purchase from defendant on February 29, 1988, Snyder obtained a search warrant giving him the authority to search defendant’s residence and vehicles and anyone on the premises. He said the other officer making the search discovered $240 in currency, which had serial numbers that matched currency given to Gromelski prior to making a purchase of narcotics earlier that evening.

Defendant called a number of witnesses whose testimony was substantially similar in that they stated they had never seen defendant sell or give narcotics or cannabis to Gromelski on February 29, 1988, or at any other time.

Defendant testified that (1) defendant was purchasing the house in which he was residing; (2) Gromelski owed defendant money for rent when Gromelski stayed with defendant and for money defendant had loaned Gromelski; (3) Gromelski paid him $270 on that debt on February 29, 1988, the night he was arrested; (4) he did not sell drugs to Gromelski that evening or any of the other dates alleged in the information; (5) he had never sold drugs or given drugs of any kind to Gromelski; (6) he purchased cocaine and methamphetamines from Gromelski several times after November 1987; and (7) on February 29, 1988, he and Gromelski used Gromelski’s cocaine, but defendant did not possess cocaine, methamphetamine or cannabis that evening.

In rebuttal, the State introduced into evidence a tape recording of a conversation allegedly held between defendant and Gromelski on February 29, 1988. The tape recording, which resulted from a hidden taping device on Gromelski, was played to the jury for the purpose of impeaching defendant’s trial testimony. In addition, the court cautioned the jury that the tape was being used for the limited purpose of determining defendant’s credibility and the believability of the defendant and the informant.

The record concerning the issuance of the search warrant is most unusual. At a time which is uncertain, defendant, acting pro se, filed a motion to quash the previously mentioned search warrant and to suppress the money seized. This motion is not in the record. Subsequently, this motion was replaced by a motion by court-appointed counsel. This motion was considered by the trial judge after the jury had been selected and sworn but before opening statements. The trial judge had also been the judge who issued the warrant. The judge indicated he was going to deny the motion and then did so. Defense counsel did not attempt to offer any evidence or make any objection to the procedure.

We consider first the ruling on the motion to suppress. Defendant maintains the circuit court erred in this respect (1) by failing to hold an evidentiary hearing on the motion; (2) by taking judicial notice of the transcript of the testimony presented at an ex parte hearing on the petition for the search warrant, pursuant to which the questioned evidence was seized; and (3) by failing to state its findings of fact and conclusions of law in the order denying suppression.

Section 108 — 3(a) of the Code of Criminal Procedure of 1963 (Code) provides for courts to issue search warrants “upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 108 — 3(a).) The record does not contain the complaint or any supporting affidavits upon which the warrant was issued. The record does contain a report of proceedings which contains testimony of Deputy Snyder, who was apparently the complainant. This testimony was taken by the court upon presentation of the complaint for a search warrant. For reasons we will explain, we need not consider whether, under Illinois law, such a transcript can be the basis for the issuance of a search warrant. See People v. Elias (1925), 316 Ill. 376, 147 N.E. 472; W. LaFave, Search & Seizure §4.3(b), at 171-74 (2d ed. 1987).

Section 114 — 12(b) of the Code provides that when a written motion to suppress has been filed stating “facts showing wherein [a] search and seizure [has been] unlawful[,] [the] judge shall receive evidence on any issue of fact necessary to determine the motion.” (Emphasis added.) (Ill. Rev. Stat. 1963, ch. 38, par. 114 — 12(b).) Here, defendant’s motion to suppress did not challenge the manner in which the warrant was executed, but contended the warrant was issued without a showing of probable cause. Ordinarily the question of whether probable cause was shown for the issuance of a search warrant must be determined upon the basis of the verified allegations of the complaint for the issuance of the warrant or supporting documents. (People v. Bak (1970), 45 Ill. 2d 140, 258 N.E .2d 341.) However, under the holding in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, in seeking to suppress evidence seized under a search warrant, a defendant may challenge the propriety of the issuance of the warrant by presenting evidence that the warrant was obtained by false statements made knowingly and intentionally or with reckless disregard for the truth. See also People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269.

Here, the closest assertion of the motion to suppress to invoke the Franks doctrine was a statement that an allegation of the complaint for warrant contending defendant was a convicted felon was falsely made “with negligent regard for the accuracy of the allegation, when a single check of the records maintained in the Greene County sheriff’s office would have revealed the true status of the defendant’s criminal history.” We do not deem that statement to charge the complainant with knowing or intentional falsehood or reckless disregard of the truth. Accordingly, the circuit court was not required to hold an evidentiary hearing.

We note that the failure to hold an evidentiary hearing might also be justified upon the basis the defense did not request any such hearing, voiced no objection to proceeding without such a hearing, and made no offer of proof of evidence which would be presented at such a hearing. We also note that the question of whether defendant was a convicted felon had little bearing upon the question of whether probable cause existed for the issuance of the search warrant.

While we do not decide whether a search warrant may be issued in Illinois upon the basis of testimony under oath taken before a judge and transcribed in a report of proceedings, we are satisfied no error resulted here from any consideration the court gave to such a transcript. The record clearly shows that a complaint was presented to the judge who issued the warrant, but that complaint has not been made a part of the record on appeal. As we have indicated, absent the applicability of Franks, the determination of whether probable cause existed for the issuance of the warrant depends upon the allegations of that complaint. (Bale, 45 Ill. 2d 140, 258 N.E.2d 341.) If the complaint properly set forth probable cause, any consideration to the issuing judge of outside information would not invalidate the warrant. People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.

Generally, the failure of an appellant to supply a portion of the record of the proceedings in the trial court creates a presumption on review that the missing record would support the trial court’s order. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) This rule is applicable to deficiencies in the common law record as well as to deficiencies in the report of proceedings. (Fischer v. Mann (1987), 161 Ill. App. 3d 424, 514 N.E.2d 566.) We hold we may assume the complaint upon which the warrant was issued properly set forth probable cause. Defendant does not argue to the contrary.

Defendant correctly points out that section 114 — 12(e) of the Code states “[t]he order or judgment granting or denying the motion [to suppress evidence illegally seized] shall state the findings of facts and conclusions of law upon which the order or judgment is based.” (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 12(e).) Here, the record shows the court made no such findings or conclusions in its order denying the motion to suppress. Defendant maintains this was reversible error. In People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299, the supreme court held failure to make such findings or conclusions of law in an order denying a motion to suppress evidence seized without a warrant was not reversible error, because a presumption arose that the trial court credited only testimony supporting its decision. Defendant contends that rule is not applicable here, because no evidence was presented upon the motion to suppress. However, we have held no evidence was either appropriate or necessary at the hearing on the motion to suppress. Thus, only conclusions of law were involved here, and they were also involved in Winters, but their absence did not require reversal. While, as stated in Winters, orders of suppression or denial of suppression should conform to section 114 — 12(e), the failure here does not require reversal.

On the basis of the record presented, we conclude the circuit court did commit reversible error in requiring defendant to reimburse Greene County in the sum of $5,000 for the services of the counsel appointed to represent defendant. A somewhat detailed discussion is necessary to explain our ruling.

Section 113 — 3 of the Code provides for the appointment of counsel by the court for indigent defendants, and subsection 113 — 3(c) provides for a procedure whereby a fee to be paid by the county to “counsel other than the Public Defender” shall be determined. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3(c).) The record here indicates that throughout most of the pretrial proceedings defendant was represented by a court-appointed attorney, and the record gives no indication that attorney was a public defender. The record also does not disclose whether that attorney had sought payment from Greene County for his services at the time the reimbursement order was entered, but he would not likely have done so as the reimbursement order was entered at sentencing.

Section 113 — 3.1(a) of the Code sets forth a procedure whereby whenever counsel is appointed under section 113 — 3 of the Code to represent an accused in the trial court or under Supreme Court Rule 607(a) (107 Ill. 2d R. 607(a)) to represent such a person on appeal, “the court may order the defendant to pay” a “reasonable” sum to reimburse the county or the State for such services. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) For a felony, the amount which can be awarded the government cannot exceed $5,000 for representation in the trial court. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(b).) This was the statutory provision under which the court acted in entering the $5,000 reimbursement order. In People v. Brown (1987), 154 Ill. App. 3d 692, 506 N.E.2d 1059, the court held that regardless of whether the services for which reimbursement from the defendant is sought are those rendered by a public defender or by private, appointed counsel, the standards upon which the decision is to be based are those applicable, under section 113 — 3(c), to a private counsel seeking reimbursement from a county for services rendered pursuant to court appointment. Section 113 — 3(c) states when such compensation is sought:

“The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel.” Ill. Rev. Stat. 1987, ch. 38, par. 113— 3(c).

In this case, the order to reimburse the county in the sum of $5,000 was imposed upon the defendant at the conclusion of the sentencing. The record gives no indication the defendant or his counsel was given any forewarning. After the court had pronounced the order, the defendant said nothing, and his counsel stated he would be filing a notice of appeal but made no reference to the reimbursement order. The only evidence of the reimbursement order appears in the report of proceedings. The common law record gives no indication any reimbursement for services of counsel was ever ordered. Section 113 — 3(b) of the Code states that when a defendant seeks appointed counsel, “[t]he court shall require an affidavit signed by” that defendant to be filed, and that affidavit shall contain “sufficient information to ascertain the assets and liabilities of that defendant.” (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3(b).) Section 113 — 3.1(a) of the Code requires the court, in considering reimbursement to be ordered, to consider that affidavit and other information submitted “pertaining to the defendant’s financial circumstances.” (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) No such affidavit was ever obtained from defendant here.

Section 113 — 3.1(a) of the Code provides for a reimbursement hearing to be “conducted on the court’s own motion or on motion of the State’s Attorney at any time after appointment of counsel” but no later than 90 days after the court’s final order in the case. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).) We do not interpret that provision to authorize the court sua sponte to pronounce a reimbursement order, as apparently done here, without warning to the defense and without the defense having an opportunity to present information which might bear upon the question involved.

From the record before it, the court had the following information which would bear on the amount which might be properly assessed for the services rendered: (1) at the time when defendant requested release on bail bond before trial, defendant presented an appraisal indicating he owned a dwelling of a value of $21,000; (2) the presentence investigation report indicated defendant was living on some sort of disability benefits and owed $5,000 to $6,000 on a debt secured by a lien on his dwelling; (3) defendant was required to pay that debt at a rate of $90 per month; (4) defendant testified at trial he had more than enough money to live on and had lent money to others; (5) the trial had taken three days, and defense counsel had also appeared at sentencing, had made pretrial motions for continuance, reduction of bond, and for speedy trial and had appeared at a bond-reduction hearing. The court-appointed attorney had not filed any affidavit as to the time spent working on the case. A reimbursement order in the sum of $5,000 may be proper here. However, defendant was fined $20,000 and the money he testified to at trial may have been money from drug transactions which he will no longer have. More importantly, the maximum award of $5,000 in fee reimbursement may be more than justified depending upon the time spent by defense counsel.

The State maintains any error was waived, because no complaint concerning the reimbursement order was made in the trial court, and the issue is being raised for the first time on appeal. When error in the determination of a section 113 — 3.1 reimbursement order has been raised for the first time on appeal, this court held the question to have been waived in People v. Nash (1989), 183 Ill. App. 3d 924, 539 N.E.2d 822, People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851, and People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211, cert. denied (1988), 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233. We deem each case to be significantly different than the case before us and reject the State’s request that waiver be applied here.

The record in Nash showed the court had carefully applied a fair procedure. At arraignment, the court informed the defendant he would be assessed a fee of $1,000, to be paid at the rate of $25 per month, for the services of a court-appointed salaried public defender. At the conclusion of the case the court gave further consideration to the recoupment order and concluded it was proper. Prior to the reconsideration, the court had offered the defendant an opportunity to present evidence on the recoupment question, and the defendant chose not to do so. In regard to the defendant’s ability to pay, the record showed defendant had been placed on probation subject to various conditions, which included a short period of imprisonment and a requirement to pay restitution not to exceed $1,800 for therapy for the victim. The sum of $300 from defendant’s bond deposit was available toward that obligation. Thus, the defendant was not burdened with large obligations, would soon be free and able to make the modest payment required. The opinion gives no indication the defendant had not been required to furnish the financial affidavit described in sections 113 — 3(b) and 113 — 3.1(a) of the Code. Thus, the court had complete information supporting the defendant’s ability to make reimbursement. The public defender had filed an affidavit showing the expenditure of 10 hours on the case. Accordingly, the court also had information justifying the amount of the reimbursement on the basis of work performed.

In Van Ostran, a defendant was ordered to reimburse a county furnishing him legal services the sum of $50. Court-appointed counsel represented the defendant in plea proceedings and at sentencing. The amount of the reimbursement was obviously not excessive for the services rendered, and the record showed the defendant had made a bond deposit in the sum of $1,000 from which the $50 could be drawn. In Cozad, the court also imposed the reimbursement order at the time of arraignment. At that time, the court had the required affidavit before it. The defendant then entered a plea of guilty, was placed on probation, was later charged with violation of that probation, had his probation revoked at a subsequent hearing and was sentenced to imprisonment after his probation was revoked. He attempted to raise the issue of the original reimbursement order on the appeal from the revocation and sentence of imprisonment. The prime basis of the waiver there was that the determination of the reimbursement required became res judicata when no appeal was taken after the sentence to probation. (People v. Stueve (1977), 66 Ill. 2d 174, 361 N.E.2d 579.) Citing People v. Hammer (1983), 121 Ill. App. 3d 133, 459 N.E.2d 1, the court also indicated waiver would apply because of failure to raise the issue of the propriety of the reimbursement order in the trial court.

We deem two other aspects of the instant case to be highly significant. One concerns a situation here somewhat analogous to that in People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138. There, in pronouncing sentence, the court recited that it gave consideration to an improper aggravating factor. The defense did not respond to that in any way until improper consideration was cited as error on appeal. The supreme court held the issue was not waived. Justice Ryan, speaking for a unanimous court, wrote:

“To preserve any error of the court made [when pronouncing sentence], it was not necessary for counsel to interrupt the judge and point out that he was considering wrong factors in aggravation, especially in light of the argument that had preceded the ruling.” (Emphasis added.) (Saldivar, 113 Ill. 2d at 266, 497 N.E.2d at 1142.)

Prior to the statement by the sentencing judge, counsel for the State and defense had presented arguments as to the proper aggravating and mitigating factors.

Here, the record does not indicate the defense was aware of any issue of reimbursement until the court sua sponte ordered reimbursement. Thus, defense counsel had no opportunity to make any kind of an objection to the procedure of the court until the court made its pronouncement. Here, as in Saldivar, defense counsel could have made some objection after the court completed the pronouncement of its order, but did not do so. Here, as in Saldivar, the defense could have filed some post-judgment motion setting forth the error in the ruling but did not do so. The Saldivar court did not require either objection or motion to preserve error, and we should not do so here.

The other significant aspect of this case was that the court-appointed counsel apparently was not a salaried public defender but a private attorney to be paid under the provisions of section 113 — 3 of the Code. Under our holding in Brown, the same factors would be used to determine defense counsel’s compensation as should have been used to determine the amount of reimbursement by defendant to be ordered pursuant to section 113 — 3.1, except that the ability of the defendant to pay is not a factor under section 113 — 3. Thus, under these circumstances the two determinations are closely intertwined.

In People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157, the court determined the representation by attorneys in the same public defender’s office of two persons accused of crime and having conflicting interests did not necessarily create a conflict of interest. The court pointed out that “ ‘the innate competitive instincts of an advocate and the integrity of the bar ***’ ABA Standards, The Defense Function. Commentary, at 212-13 (1971)” was a substantial protection to the defendants involved. (Robinson, 79 Ill. 2d at 159, 402 N.E.2d at 163.) We fully agree with those sentiments. However, if here defense counsel was required, in order to preserve error, to take some step in the trial court to point out such error, we are most reluctant to impose a waiver when that counsel appears so likely to have a personal interest in the amount of reimbursement ordered.

Our concern with the relationship between the private counsel’s compensation and the amount of reimbursement does not rise from any belief defense counsel here refrained from taking any step in order to protect his remuneration. Most likely he did not take steps the State would deem necessary to preserve error because he was so surprised by the judge’s ruling or because, consistent with Saldivar, he did not deem any such action necessary. Nevertheless, the procedures used here to impose a reimbursement order on defendant were erroneous and that error was not waived.

Appointment of other counsel to represent a defendant in a reimbursement proceeding is neither necessary, desirable, nor practical. However, because of the relationship between the reimbursement to the county and the fees that are to be awarded to the lawyer, a burden is placed upon the court and the prosecutor to see that a proper record is made to support the reimbursement order. This is particularly important, where, as apparently was the case here, the attorney is in private practice and will receive a fee fixed by the court pursuant to section 113 — 3 of the Code. Such a record should show that the defendant had (1) notice of the request for reimbursement; (2) an opportunity to present evidence and to otherwise be heard; (3) the ability to pay the amount ordered; and (4) that amount was not unreasonably high for the services rendered. Only then should the question of failure to preserve issues for review be considered.

The errors in sentencing arose from the trial court’s violation of the rule of People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, which prohibits the sentencing court from considering, as aggravating factors, those factors which are inherent in the offense. The court considered among the aggravating factors that the defendant received compensation for committing the offenses involving delivery of the various contraband substances. In People v. Harrison (1987), 156 Ill. App. 3d 39, 508 N.E.2d 1226, People v. Garrett (1987), 152 Ill. App. 3d 212, 504 N.E.2d 237, and People v. Joy (1986), 150 Ill. App. 3d 310, 501 N.E.2d 1325, the Second, Third, and Fifth Districts of the Appellate Court, respectively, have held that compensation for delivery of a controlled substance or cannabis cannot be used as an aggravating factor for the offense of delivering those substances.

The Conover court pointed out that in providing for the receipt of “compensation for committing the offense” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—3.2(a)(2)) as an aggravating factor to be used in sentencing, the General Assembly did not intend to include, as compensation, that which the offender received as the proceeds of the offense but, rather, that which another gave the offender for the commission of the offense. (Conover, 84 Ill. 2d at 404, 419 N.E.2d at 908.) The decisions from the three other districts of the appellate court have applied the same theory to the offenses for delivery of the contraband substances involved here, treating the money received as inherent in the offense and as the proceeds thereof. We agree. We cannot determine the consideration given by the court to this factor was insignificant. We find consideration of the compensation received as an aggravating factor was error.

Defendant also maintains the court erred in considering the harm caused by defendant’s conduct as an aggravating factor. In People v. Maxwell (1988), 167 Ill. App. 3d 849, 522 N.E.2d 288, the court deemed the harm caused by delivery of controlled substances to be inherent in the offense. Nothing in the record here indicates the conduct of this defendant had any more propensity to cause harm than that which was inherent in the offense. (People v. Ehrich (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137.) Accordingly, we hold consideration of this factor in aggravation of defendant’s conduct was also error.

The State points out that the issue of improper consideration of aggravating factors was raised by defendant for the first time on appeal. However, as we have explained, the Saldivar court held that the defense is not required to object to the inclusion of improper factors being taken into consideration while the court is pronouncing sentence. (See People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884.) For this reason, and because of the importance of proper consideration of these factors to a defendant, the court held the issue not to have been waived. We so hold here.

The State concedes defendant was improperly sentenced on count X (unlawful possession of a controlled substance) to five years’ imprisonment for a Class 4 felony, the maximum incarceration for which is three years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 1(a)(7).) The State also concedes the defendant is entitled to sentence credit for 197 days which he spent while incarcerated for this offense as well as $985 as credit against his fines.

As the errors we have cited concern most of the sentences and the sentences are interrelated, we deem it necessary to have re-sentencing as to all convictions. Accordingly, we affirm all convictions and reverse all sentences. We also reverse the judgment for reimbursement and imposing a lien therefore. We remand to the circuit court of Greene County for new hearings as to sentencing and reimbursement. All sentences imposed shall be consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

KNECHT, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF DEBORAH T. BUECHE, Petitioner-Appellant, and PATRICK M. BUECHE, Respondent-Appellee.
    Second District
    No. 2—89—0067
    Opinion filed January 31,1990.

      Terrence P. LeFevour and Samuel V.P. Banks, both of Chicago, for appellant.
    Herbert A. Glieberman, of Chicago, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Deborah T. Bueche, appeals the order of the circuit court of Du Page County which dismissed her petitions to enroll a Michigan judgment of divorce and to modify visitation on the ground of lack of jurisdiction. The petitioner and the respondent, Patrick M. Bueche, were residents of the State of Michigan. One child, Jean Marie Bueche, was born to the marriage on February 13, 1987. The judgment of divorce (the decree) was entered by the Genesee County circuit court in the State of Michigan on February 8,1988.

Petitioner argues on appeal that the circuit court of Du Page County erred in determining there were “not significant contacts” with the State of Illinois even though their child lived with her in Illinois for six months. In addition, respondent has moved to strike the petitioner’s brief because the report of proceedings was not certified by the trial court as true and correct under Supreme Court Rule 323(b) (107 Ill. 2d R. 323(b)). However, respondent has not alleged that he was prejudiced by any inaccuracies or omissions in the record. The appellate court may amend the record pursuant to Rule 329 (107 Ill. 2d R. 329) and treat the transcript as properly certified. (Ray v. Winter (1977), 67 Ill. 2d 296, 303; Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1088.) Thus, we deny the motion to strike the brief.

The decree provided that the parties should have joint custody of the minor child with the petitioner having primary physical custody. The decree included elaborate provisions for the respondent’s visitation, with the respondent having visitation every fourth week during the relevant period. Since the child would live with petitioner in Illinois, the decree provided that transportation of the child would be shared by both parties, and, if the parties could not agree on a meeting place for exchanging the transportation of the child, the parties would pick up or return the child at the halfway point, namely, Kalamazoo, Michigan. The decree also provided that the Michigan court would retain jurisdiction over the parties and the subject matter until all provisions of the decree were performed.

On August 12, 1988, six months and four days after the entry of the decree, petitioner filed a petition to enroll the decree and a petition to modify visitation. She alleged that the visitation provisions should be modified because, inter alia, the respondent had been convicted of reckless homicide and had had his driver’s license suspended; respondent was transporting the child to and from Illinois without a valid driver’s license; and respondent was transporting the child while driving under the influence of alcohol, thus endangering the child’s life. Service of process upon respondent was made by personal service.

The attorney for respondent filed a special and limited appearance to contest the jurisdiction of the circuit court of Du Page County, Illinois. In that petition, respondent argued that the circuit court of Illinois did not have jurisdiction; that the proper jurisdiction was in the Michigan court; that the Michigan court retained jurisdiction under the retention of jurisdiction clause; and that Illinois had no personal jurisdiction over the respondent.

On December 19, 1988, the trial court heard arguments on the respondent’s special and limited appearance which was filed in opposition to petitioner’s petition to enroll judgment. After this presentation the trial court “specified” that the proper jurisdiction for resolution of a petition to modify custody within six months after the decree is in the State of jurisdiction (Michigan). The trial court then determined that there are not significant contacts between the State of Illinois, the child and the mother at the time of the hearing to vest jurisdiction in the trial court and divert it from the Michigan court.

The trial court denied the petition to enroll the judgment and dismissed the petition to modify the judgment.

On appeal, petitioner argues that the circuit court of Illinois had jurisdiction because of her residence and the child’s residence in Illinois; that personal jurisdiction over the respondent was obtained under the long-arm statute for respondent’s “tortious conduct” underlying her cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a)(2)); that respondent transformed his special appearance into a general appearance; and that respondent appeared generally when he moved to dismiss petitioner’s attorney fee petition on the ground of lack of jurisdiction on March 27,1989.

Regarding the last contention, the fee petition is not included in the record on appeal; hence, we do not know whether it was pending at the time of the filing of the notice of appeal. If it was pending, the order of dismissal was not final for purposes of Rule 301 (107 Ill. 2d R. 301), and this appeal would have to be dismissed. (In re Mar riage of Piccione (1987), 158 Ill. App. 3d 955, 963.) However, on February 27, 1989, the trial court granted petitioner’s motion for substitution of attorneys and granted her lawyer leave to file a fee petition. Thus we can infer that the fee petition was filed subsequent to the notice of appeal, was not pending prior to the notice of appeal, and thus the order of dismissal was final. However, those matters occurring after the filing of the notice of appeal are not properly part of the record on appeal. (In re Marriage of Holder (1985), 137 Ill. App. 3d 596, 602.) Thus we do not consider whether respondent’s motion to dismiss the fee petition for lack of jurisdiction constituted a general appearance.

Because the petitioner sought to modify visitation rights, this matter is a “custody determination” (Ill. Rev. Stat. 1987, ch. 40, par. 2103.02), and we must apply the Uniform Child Custody Jurisdiction Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.;In re Marriage of Rogers (1986), 141 Ill. App. 3d 561, 564; In re Marriage of Pavelcik (1985), 138 Ill. App. 3d 1060, 1066.) In Illinois, section 15 of the Act has been amended to provide that an Illinois court may not modify a child custody judgment of another State unless that State no longer has jurisdiction or the Illinois court has jurisdiction. (Ill. Rev. Stat. 1987, ch. 40, par. 2115.) Thus, an Illinois court may modify a foreign custody judgment even if the other State has jurisdiction so long as the Illinois court has jurisdiction under section 4 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104). See Cook, Jurisdiction in Dissolution of Marriage Cases, 77 Ill. B.J. 266, 271 (1989).

An Illinois circuit court has jurisdiction to make a child-custody determination by initial or modification judgment if one of four criteria is satisfied, one of which is whether this State is the home State at the time of the commencement of the proceeding. (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(l)(i).) The “home state” is defined as the State in which the child, immediately preceding the time involved, lived with a parent for at least six consecutive months; however, periods of temporary absence are counted as part of the six-month period. Ill. Rev. Stat. 1987, ch. 40, par. 2103.04.

There is no evidence in this record from which the trial court could determine whether Jean Marie Bueche lived with her mother in Illinois for six months prior to filing of the petition. If she did, the Illinois court would have jurisdiction to proceed to consider these matters. If she did not reside in Illinois for six months, the Michigan court would be the forum to resolve this dispute.

Since the trial court had before it no evidence upon which to base its decision that the child had not resided in Illinois long enough to make Illinois the “home state” for purposes of the statutory provisions, the trial court’s ruling was error which necessitates a reversal and remand for rehearing.

Under the Act, personal jurisdiction over either parent is not necessary for a circuit court to modify a custody order so long as the jurisdictional requirements of section 4 are met. (In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 346.) Respondent was given proper notice under the Act by personal service of the petition. (Ill. Rev. Stat. 1987, ch. 40, par. 2106.) We do not believe that respondent’s pleadings constituted a general appearance since they were all relevant to the single purpose of contesting jurisdiction (Schuham, 120 Ill. App. 3d at 344-45); the issue of whether he personally appeared is not relevant because the circuit court would still have jurisdiction to modify the custody order once it found jurisdiction under section 4. It is likewise unnecessary to determine whether the long-arm statute applies, whether respondent’s actions were tortious, or whether the actions occurred in Illinois. Had petitioner sought other relief besides the custody determination, we would have to address these issues. 120 Ill. App. 3d at 348.

Had the trial court found it had subject matter jurisdiction, it could properly dismiss the petition if it determined Michigan was a more convenient forum. (Ill. Rev. Stat. 1987, ch. 40, par. 2108(a).) In a forum non conveniens determination, the court must consider what is in the best interests of the child using many factors, such as whether another State was recently the child’s home State, whether another State has closer connections with the child or family, whether substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another State (Ill. Rev. Stat. 1987, ch. 40, par. 2108(c)), as well as the purposes of the Act, which include avoiding conflict among the courts, promoting cooperation, avoiding relitigation, facilitating enforcement, and stabilizing the home environment (Ill. Rev. Stat. 1987, ch. 40, par. 2102). Because the trial court found it did not have jurisdiction under the Act, it did not receive evidence concerning the appropriate forum; hence, we must remand the cause for the trial court to make that determination. In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 363.

Finally, respondent argues that the retention of jurisdiction clause in the original judgment acts as a forum selection clause and constitutes an agreement that the Michigan circuit court would be the only court invoked to resolve disputes arising from the agreement. Respondent notes a forum selection clause was upheld in In re Mar riage of Hilliard (1989), 178 Ill. App. 3d 620, 622.

We do not find Hilliard controlling in this case. In Hilliard, the Illinois circuit court upheld the forum selection clause of an Illinois decree by noting that an Illinois court retains jurisdiction over custody determinations unless it concedes jurisdiction (Ill. Rev. Stat. 1987, ch. 40, par. 2104(b) (the Marovitz Amendment)). Since the Marovitz Amendment is not part of the Uniform Child Custody Jurisdiction Act but strictly an Illinois enactment, it would not apply to a Michigan court modifying a Michigan decree where the Michigan court would have otherwise lost jurisdiction. Moreover, even a State designated in a forum selection clause could decline jurisdiction if it no longer had sufficient contacts to support jurisdiction. (See Siegel v. Siegel (1981), 84 Ill. 2d 212, 227; Pavelcik, 138 Ill. App. 3d at 1067.) Nor would the Marovitz Amendment preclude a transfer of jurisdiction under forum non conveniens. (See Freidman & Marcus, The Continuing Jurisdiction Dilemma In Interstate Child Custody Disputes, 70 Ill. B.J. 304, 308 (1982).) Although a forum selection clause is a factor in a forum non conveniens determination (Ill. Rev. Stat. 1987, ch. 40, par. 2108(c)(4)), the clause in the parties’ decree is not a forum selection agreement but merely a retention of jurisdiction clause. By contrast, the clause in Hilliard was an explicit agreement by which the parties bound themselves to file all post-decree proceedings in Illinois only. (Hilliard, 178 Ill. App. 3d at 622.) Thus, respondent’s argument is not persuasive, and we do not interpret the clause as mandating the Michigan forum in this case.

For the above reasons, the order of the circuit court of Du Page County, finding no jurisdiction of this matter, is reversed. The cause is remanded for an evidentiary hearing and then a determination of whether Illinois is the “home state” of the minor and, if such is the case, whether the trial court should decline to exercise jurisdiction on the basis of forum non conveniens.

Reversed and remanded; motion denied.

REINHARD and INGLIS, JJ., concur.


author: JUSTICE DUNN

text:
      In re P.A.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. P.A.G., Respondent-Appellant).
    Second District
    No. 2—88—0311
    Opinion filed January 24,1990.
    G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Georgette D. Nabhani, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, RA.G., a minor, appeals from the finding of the circuit court of Lake County that he committed the offense of attempted residential burglary. On appeal, respondent contends the evidence was insufficient to establish a requisite element of the charged offense: that respondent intended to commit a felony or theft within the dwelling he allegedly attempted to break into and enter. The State argues that it presented sufficient evidence defendant intended to commit a theft inside the dwelling. We affirm.

Patty Zapata testified that she lives at 2312 Hebron in Zion with her husband and three children. WOien she returned home on the evening of September 28, 1987, she noticed that the kitchen window and screen were open and that some tomatoes which had been on the window sill were scattered across the floor. Zapata testified that when she left home earlier that day the window was closed, although she was not sure if it was locked. She testified further that respondent had previously known her sons and had been in the backyard of her property. At the time of the incident, Zapata’s sons were no longer friendly with respondent because respondent had gotten them into trouble on a certain occasion.

Stephanie Morey testified that she resides at 2308 Hebron in Zion and is able to view the back entrance of the Zapata home from her house. At about 2 p.m. on September 28, 1987, she heard dogs barking. She looked outside and saw two individuals at the back door of the Zapata residence. They knocked at the door and then looked inside a small window when nobody answered the door.

The two individuals then began pushing at the back door with their shoulders. They went to a window on the north side of the house and were pulling at it but were not able to get it out. The two individuals then tried to push in the door again but were unsuccessful. They left for a little while but then returned to the Zapata home and tried to push in the back door again. At this point, Morey called the police. She identified respondent as one of the two individuals she saw at the Zapata residence at this time.

Larry Booth, a detective with the Zion police department, testified that he spoke to respondent at the interview room of the Zion police station at about 4:45 p.m. on the date of the alleged offense. Booth asked respondent what had been going on at Aaron Centano’s house. Aaron Centano was the son of Patty Zapata and a prior acquaintance of respondent. Respondent denied being at the house that day. When Booth told respondent that an eyewitness had identified him, respondent admitted he had been there but stated his companion had tried to enter the window. When Booth explained the statement of the witness, respondent admitted he had placed a lawn mower underneath the window, climbed on it and raised the window and screen. Respondent put his head inside the window but ran down an alley after he heard a dog barking.

After the trial court denied his motion for a directed verdict, respondent testified. Respondent stated that on the afternoon in question, he and a companion decided to go over to Aaron Centano’s house to see how he was doing. Respondent had not seen Aaron in over a year. They went to the house, knocked on the door, and nobody answered. They left after a few minutes. Respondent and his companion returned shortly thereafter, knocked on the back door, and then knocked on the front door. Nobody answered. Respondent testified that he then stepped on a lawn mower which was under a window. He saw a big dog inside. Respondent told his companion no one was home. The companion stated that someone next door was watching them. Respondent then knocked on the door one more time. The two minors left after receiving no answer. Respondent was apprehended by the police shortly thereafter while walking down an alley.

The trial court found that respondent had committed attempted burglary and some other offenses which are not the subject of this appeal. Respondent was placed on probation until March 23, 1990. The instant appeal ensued.

We disagree with respondent’s contention that there was insufficient evidence that he intended to commit a theft at the Zapata residence. In the absence of inconsistent circumstances, evidence of unlawful breaking and entry into a building where a theft could occur gives rise to an inference of an intent to commit theft. (People v. Johnson (1963), 28 Ill. 2d 441, 443; People v. Lobdell (1988), 172 Ill. App. 3d 26, 29; People v. Ybarra (1987), 156 Ill. App. 3d 996, 1004.) Such an inference is also proper in an attempted burglary case if there is proof of an attempted unlawful breaking and entry, and there are no inconsistent circumstances. See People v. Semma (1974), 19 Ill. App. 3d 776, 778.

Stephanie Morey’s testimony that respondent and his companion tried to push in the Zapatas’ back door several times and were pulling at a window on the north side of the house was sufficient to establish that respondent attempted unlawfully to break into and enter the home, thus giving rise to the inference that he intended to commit theft. Although one of the residents, Aaron Centano, was a prior acquaintance of respondent and respondent asserts he merely went to the home to see how Aaron was doing, we do not believe the circumstances were inconsistent with the State’s claim that respondent intended to commit a theft. By respondent’s own admission, he had not seen Aaron Centano for over a year, making it highly unlikely that he would suddenly decide to just show up at Aaron’s residence. Moreover, attempting to break in a door is not the typical behavior of one who wishes to see an acquaintance but does not receive an answer when knocking at the door to his residence.

Additionally, according to the testimony of Detective Booth, respondent falsely stated that he had not even been at the Zapata residence, changed his story by admitting he had been there but his companion had tried to enter the window, not him, and finally admitted he had looked through the window. False exculpatory statements are admissible evidence of the accused’s consciousness of guilt. (People v. McQueen (1983), 115 Ill. App. 3d 833, 837.) Respondent’s false exculpatory statements to Detective Booth are therefore further evidence of his criminal intent. The evidence was sufficient for the trial court to conclude that respondent intended to commit a theft at the Zapata home and had therefore committed the offense of attempted residential burglary.

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

Affirmed.

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


author: JUSTICE INGLIS

text:
    DAVID BARNES et al., Plaintiffs-Appellees, v. MARY BROWN, Defendant-Appellant.
    Second District
    No. 2—89—0291
    Opinion filed January 25,1990.

      Michael C. Poper and Stephen M. Haugh, both of Michael C. Poper, P.C., of Crystal Lake, for appellant.
    David Barnes, of Crystal Lake, appellee pro se.

   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, David and Valerie Barnes, executed a written real estate purchase contract on June 27, 1985. Plaintiffs (Buyers) agreed to purchase two properties on South Throop Street, Woodstock, Illinois, owned by defendant, Mary Brown (Seller). Ultimately, the transaction failed due to the inability of plaintiffs to obtain financing for the purchase, and plaintiffs brought suit against defendant to recover $4,700 of the $5,000 earnest money that plaintiffs had deposited with defendant.

The cause proceeded to a bench trial, and on October 12, 1988, the trial court entered judgment for plaintiffs pursuant to its memorandum opinion filed July 20, 1988. The trial court denied defendant’s motion to reconsider in an order entered February 21, 1989, and pursuant to a supplemental memorandum of the trial court dated February 9, 1989.

Defendant timely appeals, contending that plaintiffs should forfeit their earnest money. We perceive defendant’s arguments to be the following: (1) under the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.), plaintiffs were required to give written notice of their inability to obtain financing; (2) the contract, drafted by plaintiffs’ attorney, should be strictly construed against plaintiffs, and plaintiffs’ failure to give formal written notice should result in forfeiture where plaintiffs never divested themselves of the liability created by the contract; (3) since the language of the contract is ambiguous, and the contract should be construed against the drafter, the trial court misinterpreted the effect of the presumption contained in the financing contingency clause of the contract, and even if the presumption is rebuttable, there was no evidence that defendant had received actual notice which would tend to negate the presumption. We reject these three arguments, and we affirm.

The contract which is the subject of this dispute contained several provisions bearing on the issue of defendant’s refusal to return plaintiffs’ earnest money. The provisions state:

“CLOSING DATE: The closing date shall be on September 3, 1985, or on such other date as may be mutually agreed to by the parties, except as may be provided otherwise in this agreement.
* * *
FINANCING: This contract is subject to the condition that PURCHASER be able to procure within sixty (60) days from the date of acceptance a loan to be secured by mortgage on the real estate in the amount of Two Hundred Twenty-Five Thousand and 00/100 dollars ($225,000.00), or such lesser sum as PURCHASER accepts, with interest not to exceed then current prime rate issued on such terms as are being granted pursuant to Avondale Federal Savings of Chicago Prime Mortgage lending program. If PURCHASER is unable to secure said commitment within the time specified and notifies SELLER within said sixty-day period, this contract shall become null and void and all earnest money shall be returned to PURCHASER. Unless PURCHASER notifies SELLER of PURCHASER’S failure to secure said commitment, then it shall be presumed that PURCHASER has secured said commitment and will complete the purchase of the real estate.
* * *
DEFAULT: If this contract is terminated without PURCHASER’S fault, the earnest money shall be returned to PURCHASER; however, if termination is caused by PURCHASER’S fault, then at the option of SELLER, and upon thirty (30) days notice to PURCHASER, if the PURCHASER is not then able to fulfill the conditions of this contract, the earnest money shall be forfeited to the SELLER and applied first to the payment of SELLER’S expenses and the balance to be retained by SELLER as full and complete liquidated damages.
TIME: Time is of the essence of this agreement.
NOTICES: All notices required shall be in writing and shall be served on the parties at the addresses following their signatures. The mailing of notice by registered or certified mail, return receipt requested, shall be sufficient service. In addition to notice to PURCHASER, notice shall be given in the event of SELLER to BRUCE M. JANCOVIC, Attorney, 1000 W. Touhy Avenue, Park Ridge, Illinois 60068; and in the event of PURCHASER, to THOMAS ZANCK, Attorney, 40 Brink Street, Crystal Lake, Illinois 60014.”

We summarize those facts pertinent to the issue of whether plaintiffs should be required to forfeit their earnest money. Both sides were represented by counsel, at least through the executory phase of the contract, and plaintiffs’ attorney drafted the contract. The real estate purchase contract contained a 60-day financing contingency clause for the benefit of plaintiffs. This clause provided that, if plaintiffs were unable to procure the appropriate financing commitment within the 60-day period and notified Seller within that period, the contract became null and void and the earnest money was to be returned to plaintiffs. However, if plaintiffs failed to notify the Seller of the failure to obtain financing, it would be presumed that the Buyers had secured financing and would complete the purchase.

Plaintiffs applied for financing at Avondale Federal Savings Bank of Chicago (Avondale). However, plaintiffs were unable to obtain the specified financing within the 60-day period, which expired on August 26, 1985. Specifically, Avondale denied plaintiffs’ application for a loan in a letter dated September 23, 1985. Plaintiffs received the letter of denial on September 29, 1985, at which time David Barnes, upon returning from vacation, claims to have called the Seller to inform her of the denial and to find out what he could do about it. David claims that the Seller, Mary Brown, encouraged him to do what he could about the financing. Plaintiffs apparently never formally notified defendant in writing that financing was not available during the 60-day financing period.

David testified at trial that he had had several telephone conversations with defendant apprising her of the status of his loan application with Avondale. David testified that between August 20 and August 26, 1985, he had a conversation with defendant in which he advised her that he had not yet heard from Avondale regarding the financing. David also testified that there was no closing on September 3, 1985, the closing date specified in the contract, because he had not received a financing commitment. David said he had had similar conversations with defendant in early September prior to going on vacation on September 20. Defendant asked if she could contact Avondale herself in his absence to see what the outcome was, and David agreed that she could.

David also testified that, on or about October 25, 1985, defendant asked him to write her a new earnest money check because the first check was stale. The original check was dated March 13, 1985. David wrote her a new check at the end of October. David claims that, when he gave her the check, she reiterated that, if the deal fell through, she would return his $5,000.

On November 20, 1985, the Seller sent plaintiffs a notice of default demanding a closing within 30 days and threatening to retain the deposit in the event plaintiffs failed to close the transaction. The letter stated that defendant was still anxious to close. David later replied by ordinary mail stating that, subsequent to his December 1 conversation with defendant, David had spoken with a third party, Chuck Peterson, regarding Peterson’s possible involvement and assistance with the transfer of the property to the Buyers. The letter implies that defendant had suggested Chuck Peterson as a possible third party to the transaction. The letter related that Peterson had no idea what defendant was talking about. David’s letter also demanded the return of his earnest money.

Defendant testified that she had contacted David on July 16, 1985, and that David had indicated that everything looked good at that point and that an appraiser from Avondale would be contacting her soon. On August 15, Avondale’s appraiser went through the Seller’s buildings to obtain the necessary information to do the appraisal. Defendant stated that between June 27 and August 29, she had only one conversation with David, on July 16, and there was no further need to speak with him because she knew that there was nothing from Avondale as yet because the appraisal had not been completed. Defendant acknowledged that, between August 25 and September 3, she took no action to arrange for a title commitment for the September 3 closing, even though it is admittedly customary to secure the title once the purchaser had received something in writing from the financing agent.

Defendant testified that on September 10 David told her that everything “looked good,” that the appraiser had already appraised the property but that David had not yet received anything at all in writing from Avondale, and that he was going on vacation. Defendant testified that David consented to having her call Avondale to find out the status of the financing and told her he would be back on September 30. Defendant testified that she called Avondale on September 26, but Avondale would not tell defendant the contents of its letter to plaintiffs. Defendant stated that, in her conversation with David on September 30, he told her that the bank had not turned him down.

Defendant claims that she next spoke to David by telephone from Florida on December 2, 1985. Defendant testified that David “said he wanted his earnest money back, and he told me specifically for the first time that Avondale had turned him down.” Defendant testified that the following morning she called Avondale to confirm that plaintiff’s application had been turned down. Defendant stated that “[t]his is the first time I knew the date that it was rejected.”

The trial court ultimately found that, while the Buyers sent no written notice to the Seller regarding plaintiffs’ inability to obtain the specified financing, the Seller was nonetheless aware that financing had not been obtained as of September 3, 1985, and was aware that financing had not been obtained during the months of September and October. The trial court distinguished between rebuttable and conclusive presumptions and concluded that the evidence rebutted the presumption contained in the financing contingency clause of the contract. That clause stated that unless the purchaser notified seller of the purchaser’s failure to secure the financing, it would be presumed that the purchaser had secured the commitment and would complete the purchase of the real estate. The trial court found no ambiguity in the contract provisions.

On appeal, defendant first contends that a written notice was required by the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 2) and the failure of Buyers to provide written notice to Seller requires forfeiture because an executory contract under the Statute of Frauds cannot be modified orally. Defendant did not effectively raise this argument in the trial court and, therefore, waives this issue on appeal. Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.

Even if defendant had properly raised it, the argument is without merit. A party may waive strict compliance with the written terms of a real estate contract by her conduct or words inconsistent with a claim afterwards asserted. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 166-67.) A party to a real estate contract can be estopped from raising the Statute of Frauds in an attempt to bar proof of an oral modification where the other party has detrimentally relied upon the waiver of strict compliance with the original written contract. Nelson v. Estes (1987), 154 Ill. App. 3d 937, 941.

Our careful review of the record discloses that defendant was aware that plaintiffs had not secured financing by August 26, 1985, and it appears that she was willing to consummate the transaction as late as December of that year, provided plaintiffs obtained financing. Defendant was well aware, even by August 26, 1985, that financing was not forthcoming without the completion of Avondale’s appraisal, and she acknowledged that she did not complete the arrangements for title for the closing on September 3. There is ample evidence in her testimony that there was continued acquiescence in plaintiffs’ delay in obtaining financing in September, October and part of November; that defendant went so far as to contact Avondale herself further evinces her knowledge of the lack of financing. Indeed, defendant obtained a new earnest money check from David which further shows her desire to complete the deal in spite of the financing problems. We find less than credible defendant’s claim that she had no contact with plaintiffs between July 16 and September 10 when the closing was to have taken place on September 3. It seems highly implausible that defendant would not have been interested in finding out whether plaintiffs had financing and whether plaintiffs would close on September 3. We conclude that defendant waived strict compliance with the time and notice provisions of the contract, at least insofar as they related to the financing contingency. Defendant’s behavior strongly suggests that she knew all along that plaintiffs had not obtained financing.

Our conclusion that defendant waived strict compliance with the notice requirements necessarily affects our determination that there was evidence rebutting the presumption that plaintiffs had obtained financing and would complete the purchase. The contract specifies that the failure to notify defendant in writing of plaintiffs’ inability to secure financing within the 60-day period would raise a presumption that the purchaser had secured “said commitment” and would complete the purchase of the real estate. Presumptions are generally classified as either rebuttable or conclusive (irrebuttable). (See Black’s Law Dictionary 1067 (5th ed. 1979); R. Hunter, Trial Handbook for Illinois Lawyers (Civil) §§35.3, 35.4, at 469-70 (6th ed. 1989).) The law recognizes that irrebuttable or conclusive presumptions may not be rebutted because it would be contrary to public policy to do so. For example, there is an irrebuttable presumption that everyone knows the law. R. Hunter, Trial Handbook for Illinois Lawyers (Civil) §35.3, at 469 (6th ed. 1989).

Rebuttable presumptions, sometimes known as presumptions of fact, have the force of proof until overcome by contradictory evidence. (R. Hunter, Trial Handbook for Illinois Lawyers (Civil) §35.4, at 469-70 (6th ed. 1989).) Such presumptions are not evidence and cannot be weighed in the scale against evidence; they are never indulged in against established facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 461.) The prevailing theory regarding presumptions that Illinois follows is Thayer’s bursting bubble hypothesis: once evidence is introduced contrary to the presumption, the bubble bursts, and the presumption vanishes. (Dean, 95 Ill. 2d at 462.) It is consistent with the Thayer approach that the party contesting the presumption must come forward with evidence that is sufficient to support a finding of the nonexistence of the presumed fact. Dean, 95 Ill. 2d at 462-63.

The trial court, in the present case, found sufficient evidence that defendant had actual knowledge of plaintiffs’ inability to obtain financing at least as early as September 3, 1985, the projected closing date, and defendant continued to be aware of the problem throughout September and October. In view of our prior conclusion that defendant was aware that plaintiffs had not obtained financing prior to the September closing date, we agree with the trial court’s finding that there was sufficient evidence to “burst the bubble” of the rebuttable presumption. Therefore, defendant could not presume that plaintiffs would actually go through with the transaction. Moreover, our examination of the record reveals that defendant was aware of the failure to obtain financing as early as August 26, 1985. Under the circumstances, we conclude that it was unnecessary for plaintiffs to give formal written notice of the failure to obtain financing.

We also conclude that the contract’s financing contingency provisions are unambiguous. Therefore, defendant’s argument that the contract should be construed strictly against plaintiffs as drafter of the document must fail. Where a contractual provision is unambiguous, no rules of construction need be applied, and the intent of the parties is determined from the language of the agreement itself. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10.) Contracts are not rendered ambiguous merely because the parties do not agree on their proper construction. (Shultz, 156 Ill. App. 3d at 10.) Indeed, we agree with the trial court’s observation that the forfeiture provision, in this case, must be strictly construed against the party seeking to enforce it. See Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 364.

The scenario in this case involves two parties who, by their actions, attempted to save a real estate transaction destined to fail. It ■appears that defendant attempted to accommodate plaintiffs in their attempt to secure financing and relaxed the requirements of strict compliance with the time and notice provisions of the contract, at least with respect to the financing contingency clause. The record indicates that there were ongoing negotiations and continuing efforts by plaintiffs to obtain financing until relations broke down between the parties in early December 1985 when, long after the contingency provisions had expired, it became clear that plaintiffs could not perform. Under the circumstances, we find that forfeiture of the earnest money sought in plaintiffs’ amended complaint would be inequitable.

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

Affirmed.

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