author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON TRIMBLE, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1271
    Opinion filed August 8, 1991.
    Rehearing denied October 25, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Shelton O’Neal Green, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendant, Aaron Trimble was found guilty of two counts of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(3)), home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12—11(a)(1)), attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8—4), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). He was sentenced to concurrent terms of 40 years for murder, 30 years for home invasion, 15 years for attempted armed robbery, and 30 years for armed violence.

The following issues are before this court for review: (1) whether the State knowingly used perjured testimony at trial; (2) whether the multiple convictions and sentences violated defendant’s right to due process of law; (3) whether defendant received a fair trial in which the trial court received and considered competent evidence; (4) whether the trial court properly found defendant guilty beyond a reasonable doubt; (5) whether defendant received a fair sentencing hearing; and (6) whether the trial court abused its discretion by imposing the maximum possible sentence for each offense.

We affirm in part and vacate in part.

Background

On May 21, 1986, Hattie Bennett resided with her 10-year-old son, Willie Bennett, in a first-floor rear apartment located at 14905 Page in Harvey, Illinois. Around 2:30 a.m. on that date, Bennett was at home with her son, who was asleep in his bedroom. Bennett testified that at that time, she heard an automobile stop behind her apartment and saw the victim, Harold Sylvester, and his friend. She stated that Sylvester’s friend, defendant, and several other people gathered in front of the apartment building, while Sylvester entered her apartment. Then, Bennett told the court, she locked her metal door which was just outside of the door to her apartment. She also stated that both the defendant, and James Amos, his codefendant, had keys to her metal door.

Bennett further testified that shortly thereafter, defendant and James Amos broke through her locked interior living room door. She stated that defendant had a shotgun in his hand when he entered the room. Detective Dennis Hinkle of the Harvey police department later testified that the door “could be opened with a small amount of pressure.” Bennett’s testimony revealed that defendant demanded $40 from Sylvester as payment for repairing his car. Sylvester responded by stating that he had a job and would pay defendant the money. When defendant continued to threaten him, Sylvester stated that he would ask his mother for the money. Defendant then told Amos to “up the missile” on Sylvester. Bennett later testified that the word “missile” meant gun. Amos then handed defendant a pistol and defendant, in turn, handed Amos his shotgun. After defendant obtained the pistol, he waved it at Sylvester, taunting him. Defendant and Sylvester continued to argue about the money. At one point Sylvester dropped a chewing gum wrapper on the floor. He stooped to retrieve the wrapper; upon resuming an upright position, defendant shot him in the chest.

Bennett further testified that immediately after Sylvester was shot, Amos said, “Get the man to the hospital, he’s dying.” She stated that the victim walked out of the rear door. Defendant then attempted to lift him into his car and take him to the hospital; however, Sylvester fell to the ground and died.

Willie Bennett testified that just prior to the fatal shot, defendant and the victim were standing at opposite ends of a table. Based upon a demonstration in the courtroom, the court estimated that Sylvester and defendant were standing 9 or 10 feet apart just prior to the shooting. Willie also testified that Sylvester bent over to pick up a gum wrapper and that defendant “stepped up a little *** further and shot [the victim].”

Willie Bennett was interviewed by Detective Hinkle shortly after the shooting. Willie later testified. He stated he informed Detective Hinkle that he was asleep in his room and that he was awakened when he “heard a noise like a gunshot.” He also told the detective that he asked his mother about the noise and she replied that it was “the door.” He further stated that he told Detective Hinkle that he saw the victim holding his chest and bleeding.

On cross-examination, Willie stated that he was interviewed by Detective Hinkle in a room separate from his mother on the morning of the shooting; he told the detective that he “was asleep and awakened by a gunshot”[;] and that he then “saw Harold Sylvester holding his chest and bleeding.” Willie admitted that after he had spoken with the detective he talked to his mother about what had happened, and she told him some information about the incident that he did not know previously.

Dr. Shaki Teas, a forensic pathologist and an assistant Cook County medical examiner, testified by way of stipulation that the cause of the victim’s death was a gunshot wound to the chest. Dr. Teas conducted an autopsy upon the victim. Upon her examination of the decedent, Dr. Teas noted that “[t]he entrance wound showed an area of *** stippling,” which are “little specks of powder that are embedded in the skin itself.” Dr. Teas concluded that stippling is “an indication [of a] *** close range or intermediate gunshot *** indicating [that] the distance where the bullets entered and the barrel of the gun were fairly close *** anywhere from a [distance of a] few inches to a maximum of about 2 feet.”

Shortly after the shooting, Detective Darwin Adams of the Harvey police department arrived at the scene of the incident in response to a report that shots were fired. Detective Adams called an ambulance for the victim and then spoke to Hattie Bennett. Detective Adams later testified on cross-examination that he did not see any physical evidence that Bennett’s door had been broken.

Hattie Bennett later identified photographs of defendant and James Amos. On July, 5, 1986, Detective Jeff Wilkins of the Harvey police department arrested defendant at a bar in Markham, Illinois. Following his arrest, defendant initially refused to cooperate in the fingerprinting process. Amos was also arrested. The prosecutions against the two defendants were severed.

At trial, defendant testified that during the year preceding the shooting he had visited Hattie Bennett’s apartment “a bunch of times” in order to purchase and sell cocaine and marijuana. He stated that on May 21, 1986, he and James Amos went to her apartment around midnight in order to sell drugs; he was armed with a loaded .38 caliber handgun at the time. He stated that Harold Sylvester arrived at the apartment sometime later and purchased a syringe from Hattie Bennett for $2. Defendant further testified that he and Sylvester began to argue over money that Sylvester owed him. During the argument, he pulled out a gun which he intended to use to strike Sylvester. However, when he attempted to hit him in the head with the gun barrel, Sylvester raised his arm to block the blow and tried to take the gun. Defendant stated that at that time, the gun discharged and a bullet struck Sylvester. The court stated that it found defendant’s testimony “far less than credible.” On November 3, 1987, the court found defendant guilty on all counts.

On April 12, 1988, the trial court conducted a death penalty hearing for which defendant waived a jury. The court found that defendant was eligible for the death penalty. During the second phase of the hearing, the parties entered into a stipulation regarding defendant’s prior juvenile adjudications and an adult conviction. The State then presented evidence in aggravation by way of stipulation that defendant’s criminal history included juvenile adjudications for felony theft. One such case resulted in defendant being sentenced to one year of probation, and the second case resulted in his being sentenced to a term of one year and eight months in the Juvenile Department of Corrections. In addition, four other cases were referred to juvenile court that resulted in defendant’s detention in the Audi Home Detention Center.

The State also called Detective Ray Cobb as a witness in aggravation. Detective Cobb testified that he was previously employed as a juvenile officer for the Harvey police department and that while he was employed in that capacity he had several contacts with defendant. Detective Cobb testified that he arrested defendant and another adult on the charges of murder and armed robbery. The charges against defendant were later dismissed by the juvenile court. Detective Cobb also testified that on six separate occasions various charges against defendant were not referred to the juvenile court but were “station adjusted.” Detective Cobb stated that he attempted to help defendant by using his discretion to resolve several matters by making “station adjustments,” and by speaking to defendant’s parents.

On cross-examination, defense counsel asked Detective Cobb if his function as a juvenile officer was more similar to that of a law enforcement officer or to a “juvenile youth counselor.” On redirect, the State asked questions regarding the officer’s counseling functions. Detective Cobb stated during redirect that if defendant had requested help in finding a job or help with school work, he would have attempted to assist him.

The People also presented evidence that defendant was convicted as an adult of the felony possession of cannabis in 1986, for which he was sentenced to two years’ probation and 30 days in the Illinois Department of Corrections.

Defendant’s father and mother, Walter and Mary Trimble, testified on his behalf in mitigation. They identified numerous letters from defendant expressing sympathy for the victim’s family, and advising his nieces and nephews of the dangers of gang affiliation and drug use.

The court sentenced defendant to concurrent prison terms of 40 years for murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(3)), 30 years for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12—11(a)(1)), 15 years for attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8—4), and 30 years for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). Defendant now appeals.

Opinion

I

First, defendant contends that the State violated his right to due process guaranteed by the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), and article I, section 2, of the Illinois State Constitution (Ill. Const. 1970, art. I, §2), by using perjured testimony at trial to obtain convictions against him.

The State maintains that it did not use perjured testimony, and that any discrepancy between the testimony of the witnesses at trial and their recollections of pretrial statements was merely an inconsistency.

“The burden of proving that the State knowingly used perjured testimony lies with the defendant.” (People v. Smith (1985), 139 Ill. App. 3d 21, 30.) “Mere inconsistencies in testimony do not establish perjury or that the State knowingly used perjured evidence.” (People v. Amos (1990), 204 Ill. App. 3d 75, 85.) “ ‘Inconsistencies between the testimony of witnesses and an alleged improbability of testimony go only to the weight and credibility of the evidence and fall short of establishing a knowing use of perjury.’ ” (People v. Foster (1989), 190 Ill. App. 3d 1018, 1030, quoting People v. Tyner (1968), 40 Ill. 2d 1, 3.) Moreover, “[m]ere conflicts in the testimony of a witness with prior statements made by him does not establish that the witness has given perjured testimony.” (People v. Henderson (1976), 36 Ill. App. 3d 355, 384.) “[I]n order for *** testimony to constitute perjury which is reversible error, the testimony must be shown '*** by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given ***.’ ” (Emphasis added.) People v. Bounds (1976), 36 Ill. App. 3d 330, 337, quoting People v. Lewis (1961), 22 Ill. 2d 68, 71.

On direct examination, the witness in question stated that on the night of the murder he was asleep in his bedroom, and that he was awakened when he “heard a noise like a gunshot.” Willie Bennett also testified that he then asked his mother what the noise was and she told him that the sound was made by the door.

On cross-examination, Willie Bennett was questioned concerning a conversation he had at the police station with Detective Hinkle. Defendant maintains Willie Bennett stated that he told the detective he was awakened by the sound of the door slamming. This conclusion is not supported by the record. The record shows that Detective Hinkle later testified that Willie Bennett told him he was asleep and was awakened by a gunshot. Defendant has failed to meet his burden of showing either the presence of perjury or its knowing use.

In addition, defendant contends Willie Bennett “admitted” that his mother did not tell him the sound which awakened him was a door slamming until after the conversation with Detective Hinkle. Similarly, this allegation is not supported by the record. Willie Bennett steadfastly maintained at trial that at the time he was awakened he asked his mother what the noise was, and she responded that the door had slammed.

Defendant has failed to demonstrate by clear, convincing and satisfactory evidence that the testimony in question was willfully and purposely falsely given. Accordingly, we find that the State did not knowingly present perjured testimony.

II

Defendant next argues that the trial court violated his right to due process guaranteed by the fourteenth amendment and article I, section 2, of the Illinois State Constitution when it convicted him of multiple counts of murder, home invasion, and armed violence. Defendant maintains that his constitutional rights were violated for three reasons. First, defendant contends that there may only be one conviction for murder where there was only one victim and, therefore, his conviction for felony murder based upon home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)) must be vacated. Second, defendant argues that the convictions for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12—11(a)(1)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) must be vacated because the aforementioned offenses and the offense of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(3)) arose from the same physical act. Finally, defendant maintains that his right to due process was violated because the offense of home invasion is a lesser included offense of felony murder and that the conviction for home invasion must be reversed.

The People maintain that defendant’s convictions, with the exception of the convictions for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2) and felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)), arose from separate acts and were not included in one another; therefore, multiple convictions and concurrent sentences were proper.

Where there is one person murdered, there may only be one conviction. (People v. Mack (1984), 105 Ill. 2d 103, 137.) In addition, “multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.” (People v. Laboy-Rivera (1984), 126 Ill. App. 3d 197, 205.) For an offense “ ‘to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also.’ ” (Emphasis in original.) People v. Garza (1984), 125 Ill. App. 3d 182, 188, quoting People v. Pavic (1982), 104 Ill. App. 3d 436, 448; see also People v. Dixon (1984), 122 Ill. App. 3d 141, 149.

The People have correctly noted that one person was murdered, and therefore, there may only be one murder conviction. The People concede that defendant’s conviction and sentence for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)) must be vacated. In addition, we find that defendant’s conviction for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2) must be vacated because this conviction was predicated upon the murder conviction and, as such, it was based upon the same act as the underlying felony. However, defendant’s arguments regarding his conviction for home invasion do not pass muster. Defendant’s argument that his conviction for home invasion is a lesser included offense in the felony murder conviction fails in light of the fact that we, here, vacate his conviction for felony murder.

In addition, defendant’s alternate argument that his conviction for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12—11(a)(1)) was based upon the same physical act as the offense of murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(3)) also fails. The People correctly argue that neither home invasion nor murder is a lesser included offense of the other, since each crime contains elements which are not elements of the other.

The crime of home invasion requires an unauthorized entry into the home (Ill. Rev. Stat. 1987, ch. 38, par. 12—11(a)(1)), an element not present in murder. Similarly, murder, as charged here, requires an intentional killing (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)), an element not present in the crime of home invasion. Accordingly, defendant’s conviction for home invasion will stand.

Ill

Third, defendant maintains that he did not receive a fair trial for five reasons. First, he alleges that the State improperly cross-examined him concerning his exercise of his right to avoid self-incrimination which is guaranteed by the fifth amendment to the U.S. Constitution. Defendant also alleges that the State improperly introduced evidence of his initial refusal to submit to the impression of his fingerprints. In addition, defendant asserts that the People improperly informed the trial court that his codefendant had been found guilty of felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)) in the same case. Next, defendant claims that the State’s assertion that he was convicted of an offense while in possession of a firearm was improper, incorrect, and highly prejudicial. Finally, defendant contends that he did not receive a fair trial because the People suborned perjury from its witness, Willie Bennett.

The State maintains that defendant has waived his right to appellate review of each of the aforementioned allegations by failing to preserve the issues for review. The State further maintains that none of the above instances complained of involved prosecutorial misconduct or error on the part of the trial court.

In the alternative, the People contend that defendant received a fair trial because there is a presumption that the trial court considered only competent evidence; that it was proper to elicit evidence of defendant’s conduct after the murder; that the admission of evidence that defendant refused to be fingerprinted was proper; that the People did not err by mentioning the codefendant’s conviction; that there was no impropriety and no prejudice to defendant in clarifying the nature of a prior conviction, which he had already acknowledged; and that defendant received a fair trial because he has failed to demonstrate that he was convicted based upon perjured testimony. Furthermore, the State argues that any error made by the trial court was harmless.

The Illinois Supreme Court has mandated that it is a “general rule that the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal.” (People v. Enoch (1988), 122 Ill. 2d 176, 186.) “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) Enoch, 122 Ill. 2d at 186.

In the instant case, defendant has waived his right to appellate review of all of the errors alleged above because he failed to object to all but one of the alleged errors at trial, and he failed to mention any of the alleged errors in his motion for a new trial. Therefore, we have no jurisdiction to review these allegations.

IY

Next, defendant contends that the State has failed to prove him guilty beyond a reasonable doubt because the People’s only two eyewitnesses were impeached by their prior statements to the police, physical evidence, and expert medical testimony. Defendant alleges that the testimony of Hattie Bennett was contradicted by her prior statements to the police and the physical evidence, and that the testimony of Willie Bennett was contradicted by both his prior statements to the police and the expert medical testimony.

The People maintain that the trial court properly found defendant guilty beyond a reasonable doubt because the corroborated testimony of the State’s witnesses proved that defendant forcibly entered a home and fatally shot the victim in the course of an attempted armed robbery.

When faced with a challenge to the sufficiency of the evidence, it is not the function of a reviewing court to retry defendant. “[I]t is entirely within the province of the fact finder to determine the credibility of witnesses, the amount of weight to accord their testimony, and the appropriate inferences to be drawn therefrom.” (People v. Schorle (1990), 206 Ill. App. 3d 748, 758; see also People v. Phillips (1989), 127 Ill. 2d 499, 509; People v. Sanchez (1986), 115 Ill. 2d 238, 261; People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Scherzer (1989), 179 Ill. App. 3d 624, 638.) The relevant inquiry is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’.” (Emphasis in original.) (Schorle, 206 Ill. App. 3d at 759, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Young (1989), 128 Ill. 2d 1, 49.) “[A]fter a defendant has been found guilty, *** all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis in original.) (Schorle, 206 Ill. App. 3d at 759, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; see also Young, 128 Ill. 2d at 49; Sanchez, 115 Ill. 2d at 261; Scherzer, 179 Ill. App. 3d at 638.) “[A] guilty verdict shall not be disregarded on review unless it is inconclusive, improbable, unconvincing, or contrary to human experience.” Schorle, 206 Ill. App. 3d at 758.

Defendant first maintains that there is a reasonable doubt as to his guilt because Hattie Bennett’s testimony that he “busted through” her living room door was contradicted by Detective Adams’ stipulated testimony that he did not observe any physical evidence of the door having been broken in. We find that the conflicting testimony does not raise a reasonable doubt because Ms. Bennett’s testimony was later corroborated by Detective Hinkle when he testified that the door, even when locked, “could be opened with a small amount of pressure.”

Defendant further charges that Willie Bennett gave contradictory testimony concerning the incident. Defendant comments upon the fact that Bennett and her son discussed the shooting, and that this action was a step taken by Hattie Bennett to ensure that the testimony of her son would be consistent with her own. However, we find that there is no evidence that Bennett coached or in any way caused her son to give perjured testimony.

Finally, the allegation that Willie Bennett’s testimony was contradicted by the pathologist’s finding that there was “stippling” around the victim’s wound lacks merit. Dr. Teas testified that “stippling” around the wound indicated that the fatal shot was fired from a distance of two feet or less. Willie Bennett testified that the victim and defendant were separated by a distance of roughly 10 feet. This alleged contradiction was argued before the trial court, which witnessed a demonstration of the shooting. The trial court concluded that, given all of the evidence, defendant’s actions would “put him well within the range” estimated by Dr. Teas. The trial court was in the best position to make a finding with respect to this issue, and we will not set aside its finding upon appeal.

After considering the evidence in the light most favorable to the prosecution, we find that the trial court’s ruling is neither inconclusive, unconvincing, improbable, nor contrary to human experience. We conclude that the court could have found defendant guilty of murder, home invasion, and attempted armed robbery beyond a reasonable doubt. The record shows that defendant forcibly entered the Bennetts’ home and fatally shot the victim in the course of an attempted robbery. The court could have found the essential elements of the crimes with which defendant was charged and concluded that defendant was guilty beyond a reasonable doubt.

V

Defendant’s fifth allegation is that he is entitled to a new sentencing hearing due to the admission of irrelevant, unreliable, speculative, and prejudicial evidence. Specifically, he has four contentions. First, he asserts the testimony that he had been arrested for murder as a juvenile was irrelevant and extremely prejudicial. Furthermore, he maintains that the sentencing court improperly admitted evidence of his prior arrests as a juvenile. In addition, he argues that a judgment was erroneously entered on numerous counts arising from a single incident, and the court considered those erroneous convictions when imposing a sentence upon him. Finally, he argues that the capital sentencing statute (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(d)) is unconstitutional.

The State maintains that defendant received a proper sentencing hearing in which the court considered only relevant and reliable evidence. Specifically, the People argue that evidence of defendant’s prior misconduct was proper even though such conduct did not result in a prosecution. Moreover, the People contend, the juvenile officer’s testimony regarding his contact with defendant was properly admitted to show defendant’s likelihood for rehabilitation. In addition, the People argue that testimony regarding Officer Cobb’s willingness to act as a counselor was provoked by defendant’s cross-examination of the witness. The State also asserts that evidence of defendant’s adjudication of delinquency was properly admitted. The State further maintains that a remand is not necessary since multiple convictions did not influence the trial court’s determination of defendant’s sentence. Finally, the State maintains that the sentencing hearing was conducted pursuant to a constitutionally valid statute.

The Criminal Code of 1961 requires the court to “consider *** any aggravating and any mitigating factors which are relevant to the imposition of the death penalty.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(c).) Our supreme court has made the following ruling concerning the admissibility of evidence at a sentencing hearing:

“The admissibility of evidence at the aggravation and mitigation phases of the sentencing hearing is not governed by the restrictive rules of evidence in effect at the guilt phase of the trial. [Citations.] The broadened standard governing admissibility of evidence allows the State and the defendant considerable leeway in presenting evidence so long as the proffered evidence is relevant and reliable [citations], as determined by the trial court in its sound discretion [citation].” People v. Johnson (1986), 114 Ill. 2d 170, 205.

See also People v. Richardson (1988), 123 Ill. 2d 322, 361-62; People v. Brisbon (1985), 106 Ill. 2d 342, 365.

During the aggravation and mitigation phase of a death penalty hearing, it is important that the sentencing court hear “the most complete information possible regarding defendant’s life and characteristics.” (People v. Lego (1987), 116 Ill. 2d 323, 347.) A court may consider a defendant’s “prospect for rehabilitation and restoration to a useful place in society[ ]” when determining an appropriate sentence. (People v. Ward (1986), 113 Ill. 2d 516, 529.) The Illinois Supreme Court has stated that “a defendant’s prior delinquency adjudications are highly relevant in determining whether the defendant’s character is such that death is the appropriate punishment.” (Lego, 116 Ill. 2d at 347.) Our supreme court has found that the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702—10(1)) does not bar the admission of prior juvenile adjudications in adult sentencing hearings. (People v. Orange (1988), 121 Ill. 2d 364, 388.) In addition, the supreme court has held that evidence of a defendant’s prior misconduct which did not result in his prosecution or conviction is admissible at the aggravation and mitigation phases of his sentencing hearing if relevant and reliable. People v. Young (1989), 128 Ill. 2d 1, 54; Johnson, 114 Ill. 2d at 205; see also Brisbon, 106 Ill. 2d at 364-65.

A sentence may not be altered by a court of review absent an abuse of discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 494; People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Heredia (1989), 193 Ill. App. 3d 1073, 1083; People v. Whitehead (1988), 171 Ill. App. 3d 900, 908.) “When a sentencing hearing is conducted by a trial judge acting without a jury, ‘the trial judge is presumed to consider only competent and relevant evidence in determining sentence.’ ” (People v. Johnson (1986), 114 Ill. 2d 170, 205, quoting People v. Morgan (1986), 112 Ill. 2d 111, 144.) In order to warrant a new sentencing hearing, a defendant must affirmatively show that the trial court relied upon improper evidence in imposing the sentence. This court has found that “even where improper evidence is presented, such as a showing of the bare fact that an arrest occurred or a charge was made, we will presume that the trial court, knowing the law, considered only proper evidence in imposing sentence, and disregarded that which was improper [citation].” People v. Garza (1984), 125 Ill. App. 3d 182, 186.

Furthermore, this court has ruled that a court of review is not required to remand a cause for resentencing after it vacates a conviction unless the sentencing court was influenced by the other improper convictions when it sentenced defendant. People v. Cook (1984), 129 Ill. App. 3d 531, 536; People v. Smith (1984), 124 Ill. App. 3d 805, 813.

We rule that defendant is not entitled to a new sentencing hearing because he has failed to meet his burden of proof. First, we find that Detective Cobb’s testimony regarding defendant’s arrest for murder and armed robbery was properly admitted. In Illinois, evidence of a defendant’s prior arrest is admissible in a sentencing hearing even though the conduct in question did not result in prosecution or conviction. (See People v. Young (1989), 128 Ill. 2d 1, 54; People v. Johnson (1986), 114 Ill. 2d 170, 205.) Defendant contends that Officer Cobb’s testimony concerning this arrest was irrelevant. We hold that his testimony was relevant because it concerned defendant’s past conduct. It is essential that the sentencing court hear “complete information *** regarding defendant’s life and characteristics.” (People v. Lego (1987), 116 Ill. 2d 323, 347.) Such information enables the court to give defendant an appropriate sentence. Furthermore, defendant contends that Officer Cobb’s testimony was not reliable. This contention has no merit. Officer Cobb’s testimony was reliable because he had firsthand knowledge of the incident in question. We also find that his testimony was properly admitted as evidence of defendant’s likelihood for rehabilitation. (See People v. Ward (1986), 113 Ill. 2d 516, 529.) The context of Detective Cobb’s testimony indicates that evidence of defendant’s prior arrests as a juvenile was offered to show his reaction to the officer’s attempts to help rehabilitate him. On these occasions, Detective Cobb attempted to assist defendant by speaking to his parents, and by using his discretion to resolve the matters by “station adjustments” and referrals to juvenile court. Accordingly, we conclude that the trial court did not abuse its discretion by admitting evidence of defendant’s past conduct as a juvenile which did not result in prosecution or conviction.

We find defendant’s reliance upon People v. Harris (1989), 129 Ill. 2d 123, inappropriate. He relies upon Harris to support his contention that evidence of prior acts for which a defendant was not convicted are inadmissible in a sentencing hearing. The Harris case was not remanded because evidence of prior acts for which the defendant was not convicted were presented in a sentencing hearing, but because the trial court treated the prior conduct as a murder conviction, and then refused to allow the defendant to prove that the charges had been dismissed. (Harris, 129 Ill. 2d at 163.) Since this error did not occur in the instant case, Harris is distinguishable from the case at bar.

Furthermore, we rule that evidence of defendant’s prior juvenile adjudications was properly admitted. Our supreme court has held that the introduction of delinquency adjudications in adult sentencing hearings is proper. (See People v. Orange (1988), 121 Ill. 2d 364, 388; People v. Lego (1987), 116 Ill. 2d 323, 347.) Accordingly, we find that the trial court did not abuse its discretion by admitting evidence of defendant’s prior juvenile delinquency adjudications in aggravation.

Defendant also contends that this cause must be remanded for resentencing because a judgment was erroneously entered on numerous counts arising from a single incident, and the court considered those erroneous convictions when imposing a sentence upon him. We disagree. We have ruled here that defendant’s convictions are to be vacated for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). A remand for a new sentencing hearing is not necessary because there is no indication in the record that the court was influenced by the armed violence count and the second murder count when it sentenced defendant. See People v. Cook (1984), 129 Ill. App. 3d 531, 536; People v. Smith (1984), 124 Ill. App. 3d 805, 813.

In addition, we find that testimony regarding Detective Cobb’s willingness to act as a counselor was properly admitted during the sentencing hearing. Defendant now contends that he is entitled to a new sentencing hearing because Detective Cobb’s testimony was unreliable, speculative, and irrelevant. We disagree. During cross-examination, defendant asked Detective Cobb about the nature of his duties as a juvenile officer. Officer Cobb testified that, had he asked, he would have helped defendant find employment and would have assisted him with his studies. This court has ruled that “the defendant may not predicate error on a response by the prosecutor which he himself provoked.” (People v. Carruthers (1974), 18 Ill. App. 3d 255, 267; see also People v. Conner (1976), 42 Ill. App. 3d 234, 239.) Accordingly, we find that the trial court did not abuse its discretion by admitting Detective Cobb’s testimony in aggravation.

Finally, defendant argues that he is entitled to a new sentencing hearing because he was sentenced pursuant to a capital sentencing provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(d)), which was deemed unconstitutional by the Federal district court in United States ex rel. Silagy v. Peters (C.D. Ill. 1989), 713 F. Supp. 1246. This contention has no merit. The United States Court of Appeals for the Seventh Circuit later reversed United States ex rel. Silagy and ruled that the Illinois death penalty statute was constitutional. (Silagy v. Peters (7th Cir. 1990), 905 F.2d 986.) For the reasons aforementioned, we rule that defendant is not entitled to a new sentencing hearing.

VI

Finally, defendant prays for a reduction of his sentence for the maximum term of years upon each count for which he was convicted. Defendant contends that his sentence is excessive in the context of the evidence and the mitigation.

The People maintain that the trial court properly exercised its discretion in imposing a sentence which was appropriate in light of defendant’s criminal history and his violent conduct in the instant case.

In determining an appropriate sentence, “[t]he nature of the crime, protection of the public, deterrence and punishment are relevant as well as defendant’s rehabilitation prospects and youth.” (People v. Whitehead (1988), 171 Ill. App. 3d 900, 908.) The trial judge’s determination of an appropriate sentence must be given great deference and weight, because the trial judge is in the best position to make a sound determination regarding punishment. (People v. Cabrera (1987), 116 Ill. 2d 474, 494; Whitehead, 171 Ill. App. 3d at 908; People v. Partin (1987), 156 Ill. App. 3d 365, 373.) There is a strong presumption that a trial court has considered any evidence of mitigation brought before it. (Whitehead, 171 Ill. App. 3d at 908; Partin, 156 Ill. App. 3d at 373.) Furthermore, as we noted above, a court of review will not disturb a defendant’s sentence absent an abuse of discretion. Cabrera, 116 Ill. 2d at 494; People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Heredia (1989), 193 Ill. App. 3d 1073, 1083; Whitehead, 171 Ill. App. 3d at 908.

In the instant case, defendant has failed to demonstrate that the trial court abused its discretion when it sentenced him. The trial judge was in the best position to sentence defendant in an appropriate manner. The trial judge heard the testimony of many witnesses, including defendant. The trial court also heard and considered evidence in aggravation and mitigation. The record shows that defendant invaded the Bennett home while armed with a gun. Defendant himself stated that he entered the Bennett home in order to sell drugs. Defendant shot and killed the victim. Further, evidence in aggravation showed that defendant was a juvenile offender, and that he was later convicted as an adult for the possession of cannabis. Moreover, the court’s sentence was within the range prescribed by statute. Therefore, we will not modify the trial court’s sentencing of defendant.

For the aforementioned reasons, we affirm the trial court’s conviction and sentence of defendant on one count of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)), home invasion, and attempted armed robbery. We vacate defendant’s conviction for felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)), and his conviction and 30-year sentence for armed violence. In addition, we grant the People’s request and assess defendant $75 in costs and fees and incorporate it as part of our judgment, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275.

Affirmed in part and vacated in part.

LINN and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    ROBERT AMARAL, Plaintiff-Appellant, v. WOODFIELD FORD SALES, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—89—2949
    Opinion filed August 12, 1991.
    Rehearing denied November 14, 1991.

      Pochis & Katz, of Chicago (Alan D. Katz, of counsel), for appellant.
    Judge & Knight, Ltd., of Park Ridge (Elizabeth A. Knight and Vickie Voukidis Blum, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Robert Amaral, appeals from an order denying his motion for leave to file a supplemental counteraffidavit in response to the summary judgment motion filed by defendant, Woodfield Ford Sales, Inc. (Woodfield), and from an order granting summary judgment in favor of Woodfield. On appeal, plaintiff contends that: (1) the trial court erred in denying his motion for leave to file a counteraffidavit in response to Woodfield’s motion for summary judgment; and (2) Woodfield breached its duty of reasonable care to plaintiff, a business invitee. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. Plaintiff was employed by D&N Oil to apply rustproofing to vehicles at various automobile dealerships and to supervise on-the-job training of other D&N Oil employees in the techniques of rustproofing. On August 22, 1984, plaintiff, in his capacity as independent contractor, was supervising on-the-job rustproofing training at Woodfield. Plaintiff was working in a service bay which was part of a large, enclosed service area where mechanics performed various services on automobiles brought to Woodfield. The service bay in which plaintiff worked was located directly across from the wash bay where automobiles were washed and radiators were flushed. The concrete floor in the service area sloped toward a center floor drain, through which the run-off of any fluids used in the bays would drain. In spite of the drain, a thin film of fluid was generally on the floor, causing it to be slippery. Plaintiff was aware of the conditions of the service area. On the day of his accident, plaintiff was walking across the damp service-area floor from his bay to the emissions testing bay when he slipped on the floor, fell, and was injured.

As a result of his injuries, plaintiff filed a complaint against Wood-field, alleging that it had caused the floor to become and to remain in a dangerous and hazardous condition, and seeking damages. At his deposition, plaintiff stated that on the morning of the accident, the service-area floor probably became slippery after the first car was washed. Cars were in and out of the wash bay all that morning. Plaintiff further stated that he had not seen anyone flushing out a radiator until right before he fell. Because radiator fluid is exceptionally slippery, anyone who performed a radiator flush was supposed to wet down the area and then use a “squeegee” to clean up the fluid. Some mechanics would even use soap and water to clean up after a radiator flushing.

Plaintiff admitted in his deposition that he knew there had been a radiator flush that morning and that he knew that radiator fluid was slippery. Plaintiff also stated that he had walked across the area in which he had fallen several times earlier that day without any problem. He wore nonskid shoes and walked cautiously because it could not be discerned visually whether the liquid on the floor was water or a mixture of water and radiator fluid. The only way to be sure was to touch it or to smell it. After plaintiff fell, he smelled and touched the liquid on the floor and recognized it as radiator fluid.

Predicated on plaintiff’s deposition, Woodfield moved for summary judgment on the ground that, as a matter of law, Woodfield had no duty to plaintiff, a business invitee, to warn him or to protect him from dangers which are known to him or which are so obvious and apparent that he may be reasonably expected to discover them. On August 9, 1989, after the trial court heard arguments on the summary judgment motion, it set Tuesday, October 10, for a ruling. On Friday, October 6, the last business day before the ruling was to be entered, plaintiff moved for leave to file additional authority in support of his position and to file his own counteraffidavit, which allegedly contained facts not covered by the deposition. The trial court granted plaintiff leave to file additional authority, but denied him leave to file the counteraffidavit.

On October 10, 1989, the date scheduled for the ruling, the trial court entered summary judgment in favor of Woodfield. Plaintiff appeals from the orders dated October 6,1989, and October 10,1989.

First, plaintiff argues that, pursuant to section 2 — 1005(c) of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)), he had a right to file his counteraffidavit because the hearing had not yet concluded. Section 2 — 1005(c) provides, in relevant part:

“The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits.”

Woodfield argues that plaintiff did not move for leave to file his counteraffidavit until after the hearing. Therefore, it was within the trial court’s discretion to deny the motion.

The record presents the following chronology of events leading up to the trial court’s October 10, 1989, order granting summary judgment. Woodfield filed its motion for summary judgment on March 8, 1989. On March 21, 1989, the motion was continued for a status hearing on May 12, 1989. On that date, a hearing was set for August 9, 1989. At the hearing, both parties disagreed as to whether plaintiff had stated in his deposition that he had actually seen radiator fluid on the service-area floor prior to the accident. The court noted that because the parties had only attached excerpts from the deposition to their pleadings, she would have to read the entire deposition to clarify the facts before making her determination. As a result, an order was entered on the trial court’s own motion to continue the hearing to October 10 for a ruling. The order provided, in pertinent part:

“[T]hat Defendant’s motion for Summary Judgment is taken under advisement. Said motion is continued for a ruling on October 10, 1989 at 2:00 p.m. Defendant to supply court with courtesy copy of plaintiff’s deposition transcript.”

The plain language of section 2 — 1005(c) allows an opposing party to file a counteraffidavit prior to or at the time of the hearing. The pivotal question raised by the facts at bar is the meaning of the phrase “at the hearing.” Plaintiff contends that until a ruling is entered, the hearing has not concluded. Woodfield, however, contends that the hearing concluded on August 9, 1989, when the parties completed their arguments.

It is well-established that a statutory term which is not defined by the statute must be given its ordinary and popularly understood meaning. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 519 N.E.2d 459.) In a legal context, “hearing” is defined as a “ [proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have right to be heard, and is much the same as a trial and may terminate in final order.” (Black’s Law Dictionary 649 (5th ed. 1979).) Thus, by definition, a hearing may conclude without a ruling. The hearing consists of the actual arguments of the parties, and the ruling may follow immediately or be reserved for a future date. In the present case, the record indicates that the hearing on the summary judgment motion concluded on August 9, 1989. The trial court then continued the motion solely for a ruling. In ordering the continuance, the court stated, “I trust you have finished your argument.” Neither counsel indicated otherwise. The court then stated, “And I will give a date to come in for a ruling on this.” Thereafter, on October 10, the date set for the ruling, the following colloquy ensued:

“[COUNSEL FOR WOODFIELD]: This was previously argued.
THE COURT: It is here for a ruling.
[COUNSEL FOR WOODFIELD]: Correct, Judge.”

Thus, it was clear to the parties that the argument had been completed on August 9, 1989, and only the ruling remained to be announced. Accordingly, because plaintiff had failed to file his counter-affidavit at the hearing, it was within the trial court’s discretion to deny plaintiff’s motion to file the counteraffidavit on the last business day before the court’s ruling. Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 533 N.E.2d 448.

Where the plaintiff was given ample opportunity to prepare and to present counteraffidavits to defendant’s motion, the court’s refusal to allow the filing of counteraffidavits does not constitute an abuse of discretion. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 525 N.E.2d 1127.) In the present case, plaintiff was deposed on December 18, 1986; predicated on the deposition, Woodfield filed its motion for summary judgment on March 8, 1989; plaintiff then filed his response to the motion on April 18, 1989; and a status hearing was set for May 12, 1989, at which time the hearing was scheduled for August 9, 1989. As indicated, plaintiff had five months within which to file a counteraffidavit before or at the time of the hearing. In our view, plaintiff had ample time within which to prepare and to present his counteraffidavit. Based on these circumstances, it does not appear that the trial court abused its discretion in denying plaintiff’s motion for leave to file his counteraffidavit.

Finally, plaintiff’s reliance on Lombard v. Elmore (1985), 134 Ill. App. 3d 898, 480 N.E.2d 1329, aff’d in part & rev’d in part (1986), 112 Ill. 2d 467, 493 N.E.2d 1063, is unpersuasive in that the Lombard court never addressed the timeliness of the filing of defendant’s affidavit. Instead, it found that the trial court had erred in denying defendant’s request to file his affidavit on the ground that defendant had failed to notify plaintiff of his intent to file the motion.

Next, plaintiff contends that Woodfield breached its duty to exercise reasonable care in the performance of radiator flushes so as to protect business invitees, such as plaintiff, from the dangers of radiator fluid on the service-area floor. In response, Woodfield argues that the slippery condition was an open and obvious danger which obviated any duty it might have had to plaintiff as a business invitee.

It is undisputed that plaintiffs status on Woodfield’s property was that of a business invitee. A person is a business invitee on the premises of another if: (1) he enters by express or implied invitation; (2) his entry is connected with the possessor’s business or with an activity the possessor conducts or permits to be conducted on his premises; and (3) there is a mutuality of benefit or an advantage to the possessor. (Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709.) Illinois has adopted the rules set forth in sections 343 and 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts §§343, 343(A), at 215-16, 218 (1965)) regarding the duty of possessors of land to their invitees. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) Section 343 provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts, §343, at 215-16 (1965).

Section 343A provides the following exception to section 343:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A, at 218 (1965).)

“Known” means “not only the knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” (Restatement (Second) of Torts §343A, Comment b, at 219 (1965).) “Obvious” denotes that “both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Restatement (Second) of Torts §343A, Comment b, at 219 (1965).

Comment/of the Reporters’ Notes to section 343A further explains the duty of the possessor of the land:

“There are *** cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. *** In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. *** It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” Restatement (Second) of Torts §343A, Comment/, at 220 (1965).

Recently, in Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239, the supreme court addressed the issue of the duty of a possessor of land to a business invitee. In Deibert, plaintiff, an electrician employed by Fritz Electric Co., as subcontractor, was injured while working at a jobsite supervised by defendant. While at the construction site, plaintiff used a portable bathroom located between two multistory buildings under construction. It had rained the day before and the ground was slippery. Because it was common practice for construction materials to be thrown off a nearby balcony into the area around the portable bathroom, plaintiff looked up toward the balcony while he was exiting the bathroom. As plaintiff was looking up, he stepped into one of several tire ruts, stumbled, fell and injured his back. Plaintiff filed a negligence suit against defendant. In defense of the suit, defendant argued that the rut was obvious and that plaintiff had been inattentive, not distracted, at the time he exited the bathroom. The trial court held that defendant owed plaintiff a duty of care. The appellate court and supreme court affirmed.

In reaching its decision, the supreme court stated that although the rut into which plaintiff had stumbled was obvious, as defined by comment b to section 343A, plaintiff had been distracted by the need to look for fallen debris when he was exiting the bathroom. Recognizing that defendant had known of the existence of the ruts and the location of the bathroom, the supreme court found that defendant could have reasonably anticipated that a construction worker exiting the bathroom would be momentarily distracted by the fear of possible falling debris from the balcony overhead and stumble into a rut he might have otherwise noticed. The court further found that although the ruts did not present an unreasonably dangerous condition in themselves, when coupled with the threat of falling construction materials, they presented an unreasonable danger. For those reasons, the court ruled that defendant should have reasonably anticipated the distraction and foreseen the injury to plaintiff.

The facts in the present case are distinguishable from those in Deibert on the pivotal point of plaintiff’s distraction. In his deposition, plaintiff stated that, at the time he fell, he was looking down at the service-area floor and walking cautiously because the floor was wet. Further, plaintiff stated that he had been working at Woodfield for two years, was familiar with the potential danger of radiator fluid on the floor and knew that a radiator flushing had just been done. These admissions indicate that he was not only aware of the potential danger, but that he had not been distracted from that awareness.

The situation at bar is similar to that addressed in Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942. In Sepesy, plaintiff’s deceased, a truck driver, was killed while standing on an inclined ramp between his truck and the truck in front of him, waiting to unload grain at defendant’s grain dump. When the driver of the truck in front of him engaged the truck’s gears to move forward, the truck rolled back and crushed the deceased. Plaintiff, as administrator of deceased’s estate, filed suit against defendant, owner of the ramp. Following a jury trial, defendant was found to have been negligent.

Relying on the Restatement (Second) of Torts, sections 343 and 343A, the reviewing court reversed the trial court’s judgment. In reaching its decision, the court found that the incline in the ramp was apparent and obvious, that truck drivers were aware of the propensity for trucks to roll backward, and that there was no evidence that the deceased had been distracted. Accordingly, the reviewing court held that defendant had no duty to warn the deceased of the danger of the incline or to provide safety devices for his protection.

Similarly, in the case at bar, plaintiff was aware of the wet floor in the service area; he knew that a radiator had just been flushed, and he knew that radiator fluid was very slippery. As previously stated, the evidence as to plaintiff’s cautious manner of walking clearly shows that he had not forgotten these facts and was not distracted by other factors. Plaintiff claims that he did not know whether the liquid on the floor was water or water and radiator fluid, the latter combination being more slippery. However, plaintiff also indicated that he could have made a definite determination as to the fluid’s contents by either touching it or smelling it. However, he did neither before walking on it.

Accordingly, because plaintiff entered defendant’s property to conduct an activity in surroundings plaintiff knew presented the potential danger of falling, and there was no evidence that he was distracted or that he had momentarily forgotten about the danger, the determination of whether the slippery floor was a known and obvious danger was properly a question of law to be decided on a summary judgment motion. Further, because the possessor of land has no obligation to protect the invitee from open and obvious dangers which are known to him (Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709), the trial court properly ruled as a matter of law that Wood-field owed no duty to plaintiff and granted summary judgment in favor of Woodfield.

The situation at bar is distinguishable from that in Steinhauer v. Arnie Bauer Cadillac Co. (1988), 172 Ill. App. 3d 314, 526 N.E.2d 577, relied upon by plaintiff. In Steinhauer, plaintiff, a patron at defendant’s dealership, was directed to seat herself in a chair which was located near a half-wall in the sales office. In doing so, she struck her head on a ledge which protruded from the wall. As a result of the injury, plaintiff filed a negligence action against defendant. Defendant moved for summary judgment on the grounds that the chair and surrounding structures were clearly visible and obvious, negating any duty to plaintiff.

On appeal, the reviewing court distinguished the situation where a plaintiff entered a defendant’s property to conduct an activity which puts plaintiff on notice of potential danger from a situation where the plaintiff was merely performing a common act at defendant’s request, such as sitting down in a chair. The court held that in the latter situation, whether the object causing the injury was open and obvious was a question of fact, not properly decided on a summary judgment motion. By contrast, in the former situation, the issue is properly decided as a matter of law. The facts in the present case are analogous to the former situation.

Based on the aforementioned, the judgment of the trial court is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: PRESIDING JUSTICE MANNING

text:
      In re MARRIAGE OF NAYLOR (Charles M. Travis, Plaintiff-Appellee, v. Charles William Dobra, Defendant-Appellant).
    First District (1st Division)
    No. 1—88—3274
    Opinion filed September 9, 1991.

      Joseph E. Voelkl, of Bloomingdale, for appellant.
    Charles M. Travis, of Hoffman Estates, appellee pro se.

   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant Charles Dobra appeals from an award of attorney fees entered against him pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). He asserts that the trial court at no time made a finding of bad-faith filing and that the petition for fees failed to specify which pleadings were falsely made and inadequately investigated and the fees that resulted from such false pleadings. We affirm the decision of the trial court, not based upon the merits of the case, but based upon the incompleteness of the record on appeal. Because of our disposition of this matter, we will set forth the numerous pleadings and hearings below leading up to the appeal.

Glenda Carol Naylor (Glenda) and William Estil Naylor (William) were divorced pursuant to a judgment of dissolution of marriage entered on December 22, 1987. The written marital settlement agreement dated November 12, 1987, and incorporated into the judgment provided, inter alia, that Glenda was given custody of the two children; that William pay directly to Glenda rehabilitative maintenance in the amount of $650 each month in two installments of $325 for the first year following the effective date of the agreement; that William pay child support in the amount of $500 each month commencing November 1, 1988; that William obtain and maintain life insurance; and that William make certain credit bill payments.

On February 22, 1988, Glenda filed a petition for rule to show cause alleging that William had failed to make payments of child support, that William had failed to provide and maintain life insurance and that he violated the court’s order directing the parties to refrain from harassing one another. Soon thereafter, Glenda filed a second petition for rule to show cause alleging that William had violated the court’s restraining order which enjoined him from entering her property.

On March 29, 1988, the trial court continued the matter for one week to allow William to obtain counsel based upon William’s representation that he had retained Dobra as counsel but that Dobra was unable to attend the hearing because of a pending trial in Du Page County. Thereafter, plaintiff Charles Travis, Glenda’s attorney, contacted Dobra and wrote him a letter in which he advised Dobra of the continued court date and enclosed a copy of the March 29 order. Do-bra replied that he had not been retained by William at that time; however, the day preceding the court date, Dobra contacted Travis and requested an agreement to continue the hearing. Travis declined the request.

On April 5, 1988, attorney Doty appeared, filed an appearance on behalf of Dobra and requested additional time to respond to the rules. On that date, Travis also filed a petition for attorney fees. Over Travis’ objections, the trial court gave William 21 days to respond and continued all matters until April 22, 1988.

On April 22, 1988, Glenda presented another petition for rule to show cause alleging William’s failure to pay the First Card credit bill. William filed a motion to strike and dismiss the petition for attorney fees and the previously filed petitions for rule to show cause pursuant to section 2—615 or section 2—619 of the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, pars. 2—615, 2—619.

Thereafter, on April 28, 1988, Glenda filed a request to admit facts and documents and demanded that William respond by May 2, 1988. On May 9, 1988, William filed an emergency motion to strike Glenda’s request to admit facts. Glenda, in turn, filed a motion to strike William’s several motions to strike and dismiss alleging that the pleadings were unverified and a fourth petition for rule to show cause alleging William’s failure to pay rehabilitative maintenance.

On June 2, 1988, William filed his responses and affirmative defenses to Glenda’s several petitions. Thereafter, on June 16, 1988, the court entered rules to show cause against William for failure to pay rehabilitative maintenance, failure to pay the First Card bill, failure to obtain life insurance, and violating the judgment which forbade him to enter upon Glenda’s property. The court allowed William 28 days to file any affirmative defenses to the rules and continued the matter until July 28, 1988, for hearing and return of the rules.

William then filed his responses and affirmative defenses on July 18, alleging, inter alia, that he was having difficulty obtaining life insurance because of a DUI conviction, but he had made several applications for policies; that he neither agreed to nor initialled any modification in the agreement regarding his obligation to pay the First Card bill; that the judgment contemplated his entry upon the premises to visit the children; and that he had insufficient funds to pay rehabilitative maintenance.

Following the hearing on the various petitions heard on July 28, 1988, the trial court entered a detailed typewritten order on August 5, 1988, finding William’s conduct willful and contumacious and him in indirect contempt of court for failure to pay rehabilitative maintenance, failure to make the First Card payments and failure to obtain and maintain life insurance. The court then sua sponte granted Glenda leave to file a petition for sanctions against William and Dobra for bad-faith pleadings pursuant to section 2—611 and leave to file an amended petition for attorney fees. The trial court set the matter for hearing on the section 2—611 motion, together with the petition for attorney fees on October 4,1988.

Thereafter, Glenda ostensibly filed a motion for judgment on the pleadings, a third amended petition for attorney fees with affidavit and a motion for sanctions under section 2—611 for bad-faith pleadings on August 29, 1988. Although the record on appeal contains the “Memorandum and Response on Behalf of William Naylor to Petitioner Glenda Naylor’s Motion for Sanctions” that was filed by William on September 28, 1988, and the judgment on the pleadings that refers to Glenda’s section 2—611 motion, it is devoid of either the original or a copy of the section 2—611 motion. Similarly, the record on appeal contains no transcription of the proceedings held on October 4, 1988. Included in the record, however, are the orders entered by the trial court on October 4, 1988, and October 11, 1988. In relevant part, the October 4 order recites:

“The plaintiff (Glenda) having presented her motion to strike, motion for judgment on the pleadings; defendant (William) having filed a memorandum to the 2 — 611 motion for sanctions and motion to abate; the court having heard the arguments of counsel on the motion on the judgment on the pleadings; the motion is granted and the court finds that the motion for sanctions was at the court’s suggestion; that from the testimony at the hearing that attorney Dobra had not made reasonable inquiry.”

The court then ordered “[tjhat the attorney’s fees are allowed to Petitioner and against Charles Dobra only on the petitions which were filed and upon which orders of contempt were entered against William Naylor.” The trial court set the matter over until October 11 for a “[hjearing on what amounts shall be allowed hereunder.”

The record contains an excerpt of the report of the proceedings that was held on October 11, 1988. Following a lengthy examination of Travis by the court with respect to the time he expended in the matter, the court entered

“judgment in favor of Charles Travis and against Mr. Dobra in the amount of $2,470.00 for Mr. Travis’ fees, and presenting those Petitions For Rule To Show Cause for which he was successful and for which Mr. Naylor was found to be in indirect civil contempt of court based upon the bad faith pleadings that the court has found on the part of Mr. Dobra in representing his client.”

It is from this order that Dobra appeals.

Section 2—611 provides that an attorney’s signature on pleadings and other papers constitutes a certification by him that he has read the document, has made a reasonable inquiry into its basis and believes that it is well-grounded in fact, warranted by existing law and is being made in good faith. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) Pleadings and other papers filed in violation of this section subject the attorney, the party whom he represented, or both to an appropriate sanction. (Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App. 3d 64, 71, 530 N.E.2d 1041.) The party seeking to recover pursuant to section 2—611 has the burden of proving that his opponent made untrue allegations without reasonable cause. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876.) A petition for attorney fees and costs under section 2 — 611 must meet minimum requirements of specificity so that a responding party has an opportunity to challenge and defend against the allegations made, and so that fees and costs may be fairly apportioned. (Diamond Mortgage, 176 Ill. App. 3d at 71, citing Geneva Hospital Supply, Inc. v. Sanberg (1988), 172 Ill. App. 3d 960, 966, 527 N.E.2d 611.) The petition must state specifically which statements were falsely made and what fees were incurred as a result of such statements. (Plainfield Community Consolidated School District No. 202 v. Linblad Construction Co. (1988), 174 Ill. App. 3d 149, 154, 528 N.E.2d 996.) Illinois courts have applied an abuse of discretion standard to review trial court sanction awards. Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 625, 532 N.E.2d 595.

However, here, as previously stated because of the lack of common law record and applicable report of proceedings, we do not reach the merits of the appeal. A party who prosecutes an appeal has the duty of presenting to the court of review everything necessary to decide the issues on appeal. Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 42, 482 N.E.2d 1014.

Supreme Court Rule 321 sets forth the requirements essential to the record on appeal:

“The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law trial record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The trial court record includes any report of proceedings prepared in accordance with Rule 323 and every other document filed and judgment and order entered in the cause. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court. No assignment of errors or cross-errors is necessary.” 107 Ill. 2d R. 321.

Thus, the appellant, Dobra, has the burden of presenting a sufficiently complete record of the proceedings in the trial court, which includes all the evidence that forms the basis of the decision, to support his claim of error. (Pecora Oil Co. v. Johnson (1987), 156 Ill. App. 3d 521, 523, 509 N.E.2d 495.) We must presume in the absence of such a record that the trial court’s ruling was in conformity with the law and had a sufficient factual basis. Any doubts resulting from the incompleteness of the record will be resolved against the appellant. Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1099, 534 N.E.2d 1243.

In the instant case, the trial court entered an award on behalf of attorney Travis for attorney fees as a sanction against attorney Do-bra pursuant to section 2—611. The trial court apparently held an evidentiary hearing on October 4, 1988, on the motion filed by Glenda. There is no section 2—611 motion in the record on appeal. Neither is there a transcript from the hearing on the motion in the record on appeal. Because Dobra challenges the propriety of the trial court’s ruling with regard to its findings made on October 4, 1988, and its order entered on October 11, 1988, imposing section 2—611 sanctions against him, we believe it is necessary to review the section 2—611 motion itself and the transcript of the evidentiary hearing on the motion. Although all cases do not require a complete transcript of the proceedings on the merits, i.e., there are cases that may be decided on the pleadings alone (Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 234, 512 N.E.2d 85), we conclude that because the present case was decided, at least in part, on the pleadings, the record on appeal must contain the pleading upon which the decision was based.

As both the section 2—611 motion and the transcript of the hearing on the motion are absent from this record, we are compelled to affirm the trial court’s order on the ground that the record is incomplete with regard to the issue of the propriety of the trial court’s award pursuant to section 2—611. It is possible that the trial court relied in whole or in part upon the evidence presented at the October 4, 1988, hearing when it granted Glenda’s section 2—611 motion. However, because the record does not indicate what evidence was presented during the hearing, we must presume that the trial court’s ruling was in conformity with the law and had a sufficient factual basis. We also must presume that the section 2—611 motion itself met the requisite specificity necessary to sustain a section 2—611 motion for attorney fees.

Accordingly, since the record is inadequate for review of the trial court’s ruling on the section 2 — 611 motion, we affirm that ruling.

For the reasons stated herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.