author: JUSTICE GREEN

text:
      In re MARRIAGE OF PAUL L. STONE, Petitioner-Appellee, and ANNET HLAVNA STONE, n/k/a Annet Hlavna Stein, Respondent-Appellant (H. Carl Runge, Jr., Appellant).
    Fourth District
    No. 4—89—0633
    Opinion filed May 9, 1990.

      G. Michael Taylor, of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellant Annet H. Stone.
    R. Dan Winnett, of Law Offices of H. Carl Runge, Jr., Ltd., of Collins-ville, for appellant H. Carl Runge, Jr.

      Glenn 0. Fuller, of Fuller, Hopp, Barr, McCarthy & Quigg, of Decatur, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

The marriage of petitioner Paul L. Stone and respondent Annet Hlavna Stone, n/k/a Annet Hlavna Stein, was dissolved by the circuit court of Jersey County on May 25, 1984. That judgment approved an agreement of the parties making petitioner and respondent the joint custodians of their minor children, Jason, Matthew, and Benjamin. Subsequently, petitioner was permitted to enroll that judgment in the circuit court of Moultrie County. On May 30, 1986, petitioner obtained a default order in the Moultrie County court reducing respondent’s visitation privileges with the children and reducing her summer custody of Jason.

Subsequently, various other proceedings took place in the circuit court of Moultrie County. Those with which we are most concerned arose from petitioner’s petition filed March 30, 1988, to further modify the custody judgment. Respondent counterclaimed, also seeking modification. In addition, she filed a petition to strike the pending petition and to hold petitioner in contempt for failure to pay support payments. On August 18, 1988, petitioner moved the court to impose sanctions against respondent and H. Carl Runge, Jr., her attorney, pursuant to the provisions of section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). After hearings, the circuit court entered an order on January 5, 1989, placing the custody of all the children with petitioner, with right of reasonable visitation in respondent. On July 31, 1989, the court granted petitioner’s request for sanctions and found respondent and Runge jointly and severally liable to petitioner in the sum of $30,000, which figure represented both attorney fees incurred by petitioner in defending improper pleadings filed on behalf of respondent and as punishment against Runge and her for filing those pleadings.

Respondent has appealed both judgments, and Runge has appealed from the judgment of July 31, 1989. At oral arguments, respondent agreed that the order modifying custody may stand. In regard to the order for sanctions, respondent and Runge or one of them contends (1) the court lacked jurisdiction to enter that order, (2) section 2 — 611 of the Code is unconstitutional, (3) the evidence was insufficient to justify the imposition of sanctions, (4) the court erred in refusing to consider new evidence at the sanctions hearing, (5) the affidavits filed by petitioner concerning the fees and costs he incurred were inadequate, and (6) in imposing sanctions, the court essentially was assessing a penalty for allegedly libelous activity. For reasons hereinafter stated, we disagree and affirm.

Section 2 — 611 of the Code, upon which the sanctions were based, requires every pleading to be signed by at least one attorney for the filing party. The signature is taken as a certificate the attorney (1) has read the document, (2) “that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact,” and warranted by present law or a good-faith argument as to what the law should be, and (3) the document is “not interposed for any improper purpose, such as to harass or to cause unnecessary delay” or costs of litigation. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Section 2 — 611 authorizes the court to impose upon any attorney or party signing a statement violative of the foregoing a sanction which can include payment of the opponent’s expenses, including attorney fees arising from the violation.

Petitioner sought sanctions for the filing of both the counterclaim and the request to hold petitioner in contempt. He contended those documents contained factual allegations which were not well grounded in fact, and respondent knew they were false and inappropriate. He further maintained Runge had failed to conduct a reasonable inquiry into the case to determine whether the documents were well grounded and not filed for an improper purpose.

Section 2 — 611 of the Code also states:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.)

Respondent and Runge contend petitioner’s motion for sanctions was untimely because it was filed on August 18, 1988, while the written order on the underlying pleadings was not entered until January 5, 1989, although the court had pronounced its ruling in open court on May 26, 1988. Based upon the opinion of the Second District Appellate Court in Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 533 N.E.2d 1144, respondent and Runge contend a section 2 — 611 petition must conform to the requirements for a post-trial motion.

In Herman, a party had filed a section 2 — 611 petition 44 days after the entry of final judgment in the underlying case. The court held the petition was untimely, as the circuit court had lost jurisdiction after the lapse of 30 days from entry of the final judgment. The court noted section 2 — 1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) required post-trial motions to be filed within the 30-day period, and some cases had referred to a section 2— 611 motion as a post-trial motion. However, the Herman opinion also stated:

“[Sjection [2 — 611] quite plainly requires that any petition filed under its auspices must be within and part of the ongoing civil action. It specifically prohibits a party from initiating a separate cause of action. It is clear that, during the course of a lawsuit, either party may file a section 2 — 611 petition at any time. ***
* * *
*** Further, the defendant could have brought her section 2 — 611 petition at any time after the offending pleading was filed ***. There is no requirement in the section that a party must wait until after judgment to file such a petition." (Emphasis added.) (Herman, 178 Ill. App. 3d at 869-70, 533 N.E.2d at 1146-47.)

Clearly, Herman is no authority for the proposition that section 2— 611 petitions must be filed after the final order in the underlying case. Rather, the dictum of Herman supports the clear indication of section 2 — 611 that a petition for sanctions can be filed any time after the offending pleading is filed as long as it is not filed after the circuit court has lost jurisdiction of the underlying case. The instant petition for sanctions was timely.

Runge challenges the constitutionality of section 2 — 611 of the Code as it applies to lawyers. He notes the Illinois Supreme Court has historically been given the authority to prescribe rules governing attorney conduct and to sanction attorney misconduct. Because of this prior history and because section 2 — 611 has been recognized as penal in nature and the equivalent of attorney discipline, he contends section 2 — 611 is an unconstitutional encroachment by the legislature upon the Illinois Supreme Court’s inherent authority to discipline attorneys. The issue raised by Runge appears to be one of first impression. Prior to November 25, 1986, section 2 — 611 of the Code applied only against parties and not their attorneys. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995.) Only upon amendment of that section effective November 25, 1986, could sanctions then be imposed against attorneys, too.

Petitioner attempts to characterize section 2 — 611 as a procedural provision. The supreme court has recognized that the legislature has power to enact laws governing judicial practice in the circuit court when the supreme court has not acted and where the legislation does not conflict with the supreme court’s inherent power. (O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322.) However, section 2 — 611 is clearly penal in nature when, as here, a party and/or attorney is ordered to pay an amount in excess of the actual fees and expenses incurred. Other courts have concluded the section is penal in nature. Fried v. Barad (1989), 187 Ill. App. 3d 1024, 543 N.E.2d 1018; People ex rel. West v. Herrendorf (1989), 187 Ill. App. 3d 777, 543 N.E.2d 824.

Runge cites In re Mitan (1987), 119 Ill. 2d 229, 518 N.E.2d 1000, for the proposition that the supreme court possesses the inherent and exclusive power to govern admission to, and to regulate, the practice of law in Illinois as well as the power to sanction or discipline the unprofessional conduct of attorneys admitted to practice before it. In Mitán, the court addressed the issue of whether section 2 — 611 applied to the filing of an allegedly false petition for reinstatement as an attorney licensed to practice law. Ironically, while the court concluded section 2 — 611 did not apply to reinstatement proceedings because they are sui generis, the court did recognize, its availability in all civil actions. This indicates an absence of tension between the two areas and is sufficient to uphold the constitutionality of section 2 — 611.

Both respondent and Runge contend the record does not justify the sanctions imposed upon them. We have previously summarized the extensive proceedings prior to respondent’s filing of her counterclaim and her petition to strike petitioner’s pending custody petition and hold him in contempt. Those earlier proceedings were hotly contested, but we need not discuss them in detail. We reluctantly conclude we must discuss the subsequent pleadings and surrounding facts regardless of how distasteful it is to do so.

In her counterclaim, respondent maintained the presence of certain “facts” warranted a change of custody. In particular, she noted several “facts” which had allegedly occurred prior to entry of the initial judgment implementing the joint-custody arrangement and which she had not previously disclosed out of fear of the petitioner. Those allegations included the following:

“A. That [petitioner] had forced Respondent to enter into a course of conduct of strange, unusual and dangerous sexual practices, including third party involvement; the Petitioner would require Respondent to become involved in sexual activities with third parties while he acted as a voyeur, and he then followed performing sexual activities with the Petitioner; that during part of the activities while conducting said sexual activities with third parties, the Petitioner would masturbate and watch the activities, and would threaten the Respondent with harm in the event she was to divulge said information.
B. That during the course of the marriage, the Petitioner required that the Respondent use certain artificial dildos in the rectal area of the Petitioner and then would require that the Respondent take pictures of the Petitioner [in] said sexual activity.
C. That the aforementioned aberrations caused great physical fear to the Respondent and are so unusual and bizarre that minor children who are novr reaching the age of puberty should not be allowed to be in the presence of, or be raised by, a person who would preach and teach sexual activity of such a nature.
D. That both prior to the entry of the Judgment of custody this course of conduct was unknown to the Court and even to the present time the Petitioner is involved in what are commonly known as “swingers”; and that he keeps certain magazines around the house called swinger magazines which the children have told the Respondent they have seen, examined, and been exposed to.”

Respondent cited additional changes in circumstances which she claimed mandated a transfer of custody, including petitioner’s (1) unwillingness to cooperate with respondent with regard to visitation, (2) failure to obtain proper health care for the benefit of the children and his opposition to medical insurance, and (3) failure to maintain normal hygiene for the children.

The answer and counterclaim was submitted by Runge. An affidavit attached to the document, however, indicated respondent had read that document, was familiar with its contents, and the matters stated therein were true to the best of her knowledge. The allegations concerning petitioner’s alleged sexual practices were eventually stricken and not repleaded.

At the hearing on the cross-petitions for a modification in custody, respondent testified extensively concerning petitioner’s alleged strange and unusual sexual practices. She testified he was involved in “swinger” activities and kept swinger magazines in the home. She said he initially requested that they view pornographic swinger magazines during sexual intercourse, but later told her he was going to call the people in the “swinger” photos and have them come and engage in sex with them.

Respondent said petitioner requested they attend XX- and XXX-rated movies when they were out of town at conventions, and, once, when attending a movie, he met a man, left with him, and later told her he had had sex with him. She recalled another incident when petitioner showed her sister and husband photographs of petitioner and respondent in the nude or engaged in sexual activities and asked them if they wanted him to photograph them, too.

Respondent said that, when she returned to live with petitioner in 1983, he told her they would have to change their relationship, and she would have to start bringing people home with her and have sex with them while he watched. She said she tried to become involved with the sort of sex that petitioner wanted. She started showing photographs of herself or petitioner to people she met and asking them if they wanted to come home with her. She said she talked to many, including a man named J.A., but no one ever came home with her.

Little, if any, of respondent’s testimony was corroborated by other testimony. In fact, J.A. testified respondent had never shown him any nude pictures or asked him to go home with her and have sex with her in front of her husband. One of the parties’ sons did indicate he had seen magazines containing some “pretty heavy duty stuff” in their home right after his mother moved out, and petitioner stated he had not had any of them in his home since May 1986. Petitioner denied all other accusations.

Respondent herself admitted there never was an occasion where she had had sex with another person in front of her husband with her husband either acting as voyeur or masturbating. She said, though, that, because she was unsuccessful, petitioner required her to tell him in detail what might happen if she did in fact bring another person home. She further admitted she had never heard petitioner preach, teach or advocate any particular sexual practice to any person other than herself, and she had never heard him say anything of that nature to their children.

Petitioner testified respondent had in the past threatened to expose flyers containing nude pictures of him if he did not comply with her requests. Respondent admitted preparing the flyers and showing them to petitioner in 1984 because she said she was angry at him for forcing her to enter into their 1984 custody arrangement. However, she denied making any threats to distribute them. She said she had no intention of trying to disrupt or affect his then current campaign for the office of State’s Attorney.

Evidence was presented that a flyer containing a nude photograph of petitioner was distributed around February 7, 1988, at a time when petitioner was campaigning for circuit judge. Petitioner opined respondent had participated in the distribution of those flyers. Respondent denied any knowledge of or involvement in the circulation of the posters.

Mary Shenke Sanderson, an employee of the Champaign-Urbana News-Gazette, testified that, in January 1988, she conversed with respondent and then wrote an article for the News-Gazette concerning the allegations in the counterclaim. She said respondent had told her her motives for contacting the paper were that she was concerned about her son’s health and she did not think petitioner should be a judge.

Respondent admitted she voluntarily went to the News-Gazette as well as the Decatur Herald and Review and brought her pleadings and other allegations to their attention. She said she did not “ask” them to print an article but realized there was a possibility an article might be published which could contain details of the parties’ private sex lives. However, she stated petitioner had told her she would not stand a chance if he “got into Moultrie County,” and she was afraid she would lose everything, so she went to the newspapers. She was also concerned for Jason’s health.

The circuit court’s written order of January 5, 1990, placing custody of all of the three children with petitioner made certain findings which bear on the sanctions issue. The findings indicated the following: (1) respondent made false factual allegations about petitioner’s sexual conduct, (2) she appeared at newspaper offices and encouraged them to publish an article, (3) flyers containing nude pictures of petitioner were distributed, and this was done with the knowledge, encouragement or acquiescence of respondent, (4) respondent did not offer any credible evidence to support numerous allegations contained in her counterclaim, (5) respondent apparently had a deep hostility towards petitioner and was motivated to attack and harass him, and (6) respondent’s actions were not undertaken with the best interests of the children in mind but instead with a complete disregard of the deleterious effect they could have upon them.

At the subsequent hearing on the motion for sanctions, Runge testified he had had several conversations with respondent and her previous attorney, Arthur Lerner, with regard to the petition to strike and hold petitioner in contempt. He conceded he had not attempted to determine the names of other attorneys involved or examine the applicable trial and appellate files. He stated at some point he learned the monetary amount discussed in the petition for contempt had been paid by petitioner and admitted the amended petition he filed with the court was not accurate.

With regard to the counterclaim he filed on behalf of respondent, Runge said that, in drafting the document, he relied upon the information given to him by respondent, her husband Nathan Stein, and several doctors and psychologists. He acknowledged he did not interview the parties’ three minor children or J.A., the man whom respondent allegedly solicited to come home with her at petitioner’s request. He stated it generally was not his practice to interview children in a contested custody situation. Furthermore, he stated he did not determine where the case had previously been litigated and did not examine the applicable court files. He said he knew some of respondent’s prior attorneys but did not think he had tried to contact them regarding the case. He acknowledged he knew petitioner practiced law and held the position of State’s Attorney.

Runge said he did discuss the case with Mr. Lerner, however. He said respondent had come to him to see if he would defend a petition for change of custody and/or file a counterclaim. He said he obtained a copy of a proposed answer and counterclaim from either respondent or Lerner and telephoned Lerner about them. He stated he “was concerned about the seriousness of the allegations, particularly [those] in the counterclaim, [and] what had been the ongoing situation vis-a-vis the children and the parents.” He said he went through each allegation with Lerner, redrafted the document and then went through the allegations with respondent. He stated she revealed to him, either specifically or generally, the evidence she had with regard to each allegation. He said he advised his client to not go to the newspapers with her allegations.

Respondent testified at the hearing that Lerner had prepared an initial petition for change of custody for her. She stated she had told him her husband required her to speak with men and ask them to return home and have sex, but she never told him such contacts actually occurred. She said she read the document he prepared but did not object to its wording. She said she trusted his judgment and thought whatever he put in the document based on her conversations with him was true and correct.

At the time of pronouncing its decision on the motion for sanctions, the circuit court noted: (1) the amended petition to strike petitioner’s petition had set forth as facts matters which were patently false; (2) one allegation of the counterclaim concerning, petitioner’s sexual conduct “was so egregious and so devastating in its effect that any reasonable litigant or attorney should have *** investigate^] such claims at great length” before filing; (3) before filing the counterclaim, “Runge *** should have discussed the matter carefully with counsel [and] with all potential witnesses and [should have] left no stone unturned”; and (4) Runge had not done so.

The question with regard to Runge is whether he conducted a reasonable inquiry into the matters in question before filing both the petition to strike and the counterclaim. Section 2 — 611 of the Code was modeled after Rule 11 of the Federal Rules of Civil Procedure. (28 U.S.C. app. Rule 11, Rules of Civil Procedure (Supp. V 1988).) Advisory committee notes to the Federal rule state:

“The rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.” 28 U.S.C. app. Rule 11, Rules of Civil Procedure at 129 (Supp. V 1988) (Notes of Advisory Committee on Rules — 1983 Amendment).

In Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595, both a defendant to a mortgage foreclosure action and his attorney were sanctioned by being required to pay a portion of the mortgagee’s attorney fees after making erroneous factual assertions in an answer to the complaint for foreclosure and defendant’s response to the mortgagee’s motion for summary judgment. The defendant had contended he had made payments which kept him current on the underlying obligation, but he could not produce evidence of the payments. Both defendant and his counsel admitted they knew defendant was in default at some time before they answered the motion for summary judgment denying an arrearage. The attorney admitted he had filed the answer denying the arrearage without asking his client for documentation of the payments the client alleged to have made.

In upholding the imposition of the sanction as not constituting a breach of discretion, the Anderson court stated:

“[A]s a general rule, an attorney cannot simply rely on the client’s verbal representations when the client has in his possession additional information bearing on the facts, or when additional information is readily ascertainable from third parties. *** [T]he attorney must objectively review the information submitted by his client, to determine if it factually supports the client’s claim; if such review reveals important discrepancies, inconsistencies, or gaps in the information provided, the attorney must investigate further before filing the relevant legal paper with the court.” Anderson, 177 Ill. App. 3d at 624-25, 532 N.E.2d at 601.

Here, the evidence is clear that respondent was attempting to harass petitioner. This would be apparent even if her allegations of sexual misconduct were true. Because of this, her counsel should have been particularly careful in regard to the allegations made. Runge had discussed the case with respondent’s most recent counsel, but he had not discussed the matter with other of her attorneys. Had he contacted Harold Belsheim, one of her prior attorneys, he would have found the alleged arrearage of child support, upon which respondent relied in her request to have respondent held in contempt, did not exist because the fact of its payment was revealed in a malpractice suit by respondent against that attorney.

Runge admitted he did learn at some point that some of the monies discussed in the petition had been paid by petitioner and that the amended petition he filed with the court had been inaccurate. Petitioner’s attorney had informed him the payments had been made, and Runge acknowledged that he had. However, Runge still filed an amended petition alleging monies were due and owing even after he learned about this information.

In regard to the allegations of the counterclaim, Runge did make reasonable inquiries into some of the alleged factual matters in question. For instance, he did contact the children’s doctors and psychologists and even deposed them. A genuine dispute appeared to exist as to whether petitioner was providing his children with proper medical attention and whether he had acted rationally in allowing his oldest son with epilepsy to drive. He did not attempt to interview any of the children, but his explanation that he does not deem it appropriate to interview children involved in a child custody action was not unreasonable.

Considering the seriousness of the sexual allegations and the existence of respondent’s intention to harass petitioner, Runge’s inquiry in that regard could properly have been found by the circuit court to be inadequate. Admittedly, the matters involved were difficult to either prove or disprove, but the only other source he contacted was respondent’s new husband, Nathan Stein. He did not attempt to interview J.A. Runge was under no time constraint because the children were not shown to be in great danger, and none of the improprieties attributed to petitioner were alleged to have taken place in front of the children.

Respondent’s counterclaim alleged not only that petitioner sought bizarre sexual activities but also that the activities actually took place. In order to obtain sanctions against respondent for making these allegations, petitioner had the burden of proving the falsity of these allegations. In the hearing on the counterclaim, petitioner testified virtually all of these allegations were untrue. Respondent’s testimony, at best, only tended to support her theory that petitioner sought those activities. Respondent was college educated and a licensed certified public accountant. She testified she had read the counterclaim. She would not have had trouble in understanding what was stated therein. Under this evidence, the circuit court could properly determine virtually all of respondent’s allegations as to improper sexual conduct by petitioner were known by respondent to be false.

Respondent is correct in her contention that the court cannot directly punish her under section 2 — 611 for attempting to harass petitioner by her conduct in embarrassing him in the media and through posters. Nevertheless, she can be sanctioned for filing false pleadings with the intent to harass. (Szabo Food Service, Inc. v. Canteen Corp. (7th Cir. 1987), 823 F.2d 1073; Thornton v. Wahl (7th Cir. 1986), 787 F.2d 1151.) Evidence of her general intent to harass bears upon the question of whether she acquiesced in false pleadings with intent to harass.

Respondent’s contention the court erred in refusing to consider new evidence at the hearing on sanctions arose because she offered, but was not permitted to introduce, testimony from a witness who would testify she had made statements to him in 1984 about her sex life with petitioner which were consistent with her testimony at trial, thus tending to prove the truth of some of the allegations of her counterclaim. While the proceedings at a section 2 — 611 hearing are necessarily summary, the court'should hear all evidence that is reasonably material, relevant, and significant to the issue before the court unless the evidence is barred by some rule. Here, however, evidence of respondent’s hearsay statement would have been admissible as a prior consistent statement if an express or implied charge has been made by petitioner that her testimony at trial was a recent fabrication, and she had made her statement before she had incentive to fabricate. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.14, at 398 (4th ed. 1984).) The evidence at trial clearly showed petitioner and respondent were in sharp dispute in 1984, and respondent had substantial incentive to fabricate to shame petitioner even at that time. No error resulted from the court’s refusal of the evidence.

Runge contends the affidavits filed by petitioner which accompanied his request for sanctions were inadequate. They concerned fees and costs incurred by petitioner in responding to the counterclaim and request to hold him in contempt. They contained an itemized schedule of time spent by two attorneys, listing the time and nature of services performed on a daily basis. Runge also maintains he was not shown to be a part of any plot to defame petitioner, and he should not be required to pay for work done to clear petitioner’s name. However, similar affidavits were deemed satisfactory in a section 2 — 611 proceeding in Fried (187 Ill. App. 3d 1024, 543 N.E.2d 1018). That court recognized an attorney would not ordinarily keep time records distinguishing the time spent responding to untrue allegations from that spent in regard to true allegations. Here, the attorneys’ records were specific enough to distinguish time spent after the filing of the pleadings in issue from the time spent before. We conclude the affidavits were sufficient.

Finally, respondent contends that, in sanctioning her, the trial court essentially was penalizing her for allegedly libelous activity. She claims this was improper, as those damages should be reserved for libel actions.

According to historical and practice notes, in 1986 section 6 — 211 “was completely rewritten and greatly expanded, in an effort to make section 2 — 611 a more stringent sanction for ill-founded litigation and ill-founded claims in otherwise meritorious cases. *** It *** providefs] that papers that are not well founded in fact or law or are interposed for an improper purpose may be the basis for sanctions that include, but are not limited to, fees and costs.” (Emphasis added.) (Ill. Ann. Stat., ch. 110, par. 2 — 611, Supplement to Historical and Practice notes, at 21-22 (Smith-Hurd Supp. 1989).) Clearly, punishing offending parties and attorneys is a proper purpose of a section 2 — 611 sanction.

Here, approximately half of the $30,000 award was for attorneys fees and expenses. The other half was clearly punishment. The thrust of the wrong for which the punishment was imposed was not because it defamed petitioner. Rather, the heart of the misconduct by respondent was that the allegations were untrue and harassed petitioner. Similarly, Range’s filing of the allegations was careless and thereby served to harass. The fact the allegations were defamatory was a proper compounding factor.

No error resulted from imposition of the sanctions.

We affirm for the reasons stated.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDY BERNARD McCLENDON, Defendant-Appellant.
    Fourth District
    No. 4—89—0500
    Opinion filed May 9, 1990.

      Daniel D. Yuhas and Peter L. Rotskoff, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

During a series of altercations occurring in Danville, defendant shot and killed Keith Bevly. Defendant was charged with three counts of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a), 9— 1(a)(2)) and with armed violence based upon aggravated battery (great bodily harm) (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). The jury convicted him of armed violence. It could not reach a decision on the murder counts. The trial court sentenced defendant to 30 years’ imprisonment for the armed violence conviction. Subsequently, defendant pleaded guilty to second-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) and was sentenced to a concurrent 15-year term of imprisonment.

Defendant argues the trial court erred in instructing the jury; he was denied his constitutional right to confront witnesses by admission of an evidence deposition; his conviction of armed violence should be vacated because he subsequently pleaded guilty to second-degree murder; and the trial court abused its discretion in sentencing.

We affirm.

Background

The incident occurred during the late evening hours of August 22, 1988, in the main parking lots of the Fair Oaks apartment complex in Danville. There are two lots separated by a curb and a sidewalk. Several persons were gambling near the smaller lot. Defendant had parked his car in the smaller lot near a light pole and the gamblers. He was there with his cousin, James “Termite” Graham.

Gregory “Wheat” Foreman, Steve Butler, and Keith Bevly came to the area in the same vehicle. Bevly parked the vehicle in the larger lot. Then, he and the others walked over to the smaller lot. As Bevly crossed into the smaller lot, Boo Strong (Willie Williams), defendant’s uncle, asked Bevly what he wanted in the parking lot. Bevly responded that it was a free lot and he could go where he wanted. Strong then told Bevly to move away from his car, a fight started, and Bevly hit Strong.

Defendant approached Bevly and asked why he was fighting with his uncle. Defendant then tried to grab Bevly’s legs, lift him, and throw him to the ground. However, Bevly wrestled defendant to the ground. Michael “Meathead” Foreman, Gregory Foreman, and several others broke the fight up. Bevly walked back to his car and put on a pair of gym shoes.

STATE’S WITNESSES

Robert Moore testified he left the lots for a few minutes after Bevly went back to his car. When he returned, defendant, Bevly, Termite, and Wheat were shouting. Bevly walked over to the small lot, near Termite and defendant. Termite said, “ ‘Ain’t nobody going to fuck with Freddy.’ ” Bevly then said he was going to hit Termite with a beer can, which he was carrying. Bevly was about 18 feet from defendant when he said this. Moore stated he left when Bevly and defendant were within arm’s reach of each other. Moore saw a chrome gun at defendant’s side. He did see Bevly running but did not see him fall. He heard three to four shots. Moore admitted he was subpoenaed to testify and was escorted to trial.

On cross-examination, Moore stated Bevly, defendant, and Termite were yelling across the lots and threatening each other. This occurred after Bevly returned to his car. As Bevly walked back, Termite was yelling at him. Moore did not hear Bevly make any threat other than he would hit Termite with a beer can. Wheat Foreman tried to persuade Bevly to stay out of the smaller lot. On redirect examination, Moore stated he saw defendant point a gun in Bevly’s direction.

Wheat Foreman stated 30 minutes elapsed between the first fight and the shooting. He, Bevly, and Butler were standing on the other side of the lots from defendant and Graham. As they walked across the lots, Graham said, “ ‘Ain't nobody going to fuck with Fred.’ ” Bevly said, “ ‘What’s up?’ ” Wheat did not remember whether Bevly had a can of beer in his hand. He had been drinking earlier. Wheat did not see Bevly make any gestures or movements toward Graham or defendant. Bevly was facing defendant when defendant shot him. Bevly turned and ran. Then, defendant fired three more times. Wheat stated Bevly got hit and stumbled on the third shot; but he kept running. Wheat further testified there was a delay between the first shot and the next three. Bevly turned and was running away when the second shot was fired.

Donny Duckworth was gambling that night but observed the shooting. Duckworth stated that after the initial fight Bevly returned to his car. Then, defendant and Wheat Foreman started arguing. Bevly told Wheat he could handle his own battles. Bevly stated he would “whup” Graham like he had the others. Graham then said, “ ‘Ain’t nobody going to fuck with Freddy, now.’ ” Bevly then walked up to Graham, holding a beer bottle or can. However, defendant stepped in front, pushed Graham back, and shot Bevly. Defendant and Bevly were very close to each other when the shooting occurred. After defendant shot Bevly the first time, Bevly turned and ran into the other parking lot. Bevly was running around the buildings when the other shots were fired. However, Bevly had not reached the buildings. Duckworth saw four to five shots being fired.

Steve Butler testified that he, Bevly, and Wheat Foreman were talking after the first fight. Defendant came to the sidewalk and wanted to know whether they were all going to “jump him.” Defendant and Bevly started to argue. Then, Graham came up. Bevly said, “ ‘What’s up with you? I will faze [fade] you.’ ” This meant Bevly would hurt him. Butler heard defendant say, “ ‘Watch out, Termite [Graham], I am going to have to do the time. Watch out, I’m going to do time.’ ” Then defendant pulled a gun out and started shooting. Defendant fired four times. Bevly did not have anything in his hands when the shooting started. However, he had been drinking canned beer earlier.

After the first shot, Bevly turned and ran. Bevly was across the sidewalk by the time defendant fired the second shot. Butler stated he thought Bevly was shot first in the chest; then, shot again as he turned.

DEFENDANT’S STATEMENT

Defendant gave a statement to the police on August 30, 1988. Defendant stated that after Bevly started kicking his uncle, defendant intervened. Defendant did not want to fight, but Bevly threatened to knock him out. They fought. Graham broke up the fight. Bevly kept threatening defendant, who told' Bevly to leave him alone. Graham said, “ ‘Fuck the punk.’ ”

Defendant saw Wheat Foreman hand Bevly a bluesteel gun. Graham then handed defendant a gun. Defendant told Graham he was going home. However, he turned around and saw Wheat and Bevly running toward him. Defendant told Graham to get back, begged Bevly to leave him alone, saw Bevly pull a gun out of his shirt, and saw Bevly point the gun at him. .Because Bevly was threatening to kill defendant, defendant shot Bevly. Defendant threw the weapon he used away. It was a silver .32 or .38 caliber handgun with a brown handle. Graham had given him the handgun in between his first fight with Bevly and the shooting. Defendant did not fire the handgun after Bevly turned around.

DEFENDANT’S WITNESS

Theresa Graham, defendant’s cousin, stated she arrived at the main parking lots at approximately 11:30 p.m. on August 22, 1988. She observed the initial fight between Bevly and defendant. Defendant told her about the fight between Bevly and Strong. She heard Bevly threaten to kill defendant; then she heard Bevly threaten her brother. Bevly threatened defendant and put his hand inside his shirt or jacket. He walked toward defendant. As Bevly started to remove his hand from his jacket, defendant shot him twice. After he was shot, Bevly initially continued to walk toward defendant; then, he turned and ran.

On cross-examination, Graham stated she did not remember telling the police she left her apartment at 12:45 a.m. on August 23, 1988. After the second shot, Bevly made three 360-degree turns, and then ran away. She did not see Bevly with a weapon. She saw defendant aim at the ground and fire again after Bevly was out of sight.

MEDICAL TESTIMONY

Defendant stipulated to the admission of a videotaped evidence deposition. Dr. Stanley Bobowski stated there were two entry wounds on the body. Bevly had been shot in the chest and the left buttock. The bullet which entered the left buttock took an upward angle and severed the aorta. Bevly was either running or falling when he was shot in the left buttock. Bevly died from shock caused by massive blood loss. The chest wound did not destroy any vital areas. Bobowski admitted that the oblique angle of entry could have been caused by the weapon being held at a 60-degree downward angle.

ANALYSIS

During the instruction conference, in conjunction with the murder instructions, the prosecutor offered the following Illinois pattern jury instruction:

“Force which is likely to cause death or great bodily harm includes [(the firing of a firearm in the direction of a person to be arrested, even though no intent exists to kill or inflict great bodily harm) (the firing of a firearm at a vehicle in which the person to be arrested is riding)].” Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.15 (2d ed. 1981) (hereinafter IPI Criminal 2d).

Defense counsel objected to the instruction. The prosecutor then modified the instruction. Defense counsel agreed to the modified instruction. It states:

“Force which is likely to cause death or great bodily harm includes the firing of *** a firearm in the direction of a person even though no intent exists to kill or inflict great bodily harm.”

The prosecutor next offered a non-IPI issues instruction on armed violence. It stated:

“To sustain the charge of Armed Violence, the State must prove the following propositions.
First: That the defendant was armed with a dangerous weapon; and
Second: That he committed Aggravated Battery while armed with a dangerous weapon;
Third: That the defendant was not justified in using the force which he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of those propositions has not been proved beyond a reasonable doubt you should find the defendant not guilty.”

Defense counsel stated he was going to make a motion for directed verdict on the armed violence count. He did not believe it should be predicated upon aggravated battery. If that motion were denied, he had only a general objection to the armed violence instruction. The court gave the instruction over defendant’s general objection.

The jury was also instructed on the definition of aggravated battery.

Initially, defendant argues error in giving the non-IPI issues instruction on armed violence, in defining the use of force, and the lack of a definitional instruction on battery either individually or cumulatively denied him his constitutional right to a fair trial.

Generally, a failure to object at trial to an asserted error in jury instructions waives review of the question. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Casey (1989), 179 Ill. App. 3d 737, 534 N.E.2d 1036.) Additionally, no party may raise on appeal the failure to give an instruction unless he tendered it at trial. (Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248.) Failure to object to an instruction because it is a non-IPI instruction waives review of the issue where defendant failed to offer the IPI instruction. (People v. Barber (1974), 20 Ill. App. 3d 977, 313 N.E.2d 491.) However, the waiver rule may be modified where a grave error occurred or where waiver will result in denial of a fundamentally fair trial. Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248; 107 Ill. 2d R. 451(c).

Defendant waived review of the non-IPI issue instruction on armed violence. He objected to it generally, but did not object to it as a non-IPI instruction. He did not offer an IPI instruction in its place. Additionally, defendant did not raise this issue in his post-trial motion. Therefore, defendant has waived review of the propriety of the armed violence instruction. Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248; Casey, 179 Ill. App. 3d 737, 534 N.E.2d 1036; Barber, 20 Ill. App. 3d 977, 313 N.E.2d 491.

Similarly, the defendant has waived review of the definitional instruction on force. Defendant initially objected to the language of the original instruction. The prosecutor withdrew it and modified it. Defendant then stated he had no objection to the instruction as modified. Defendant did not raise the issue in his post-trial motion. Therefore, defendant has waived review of the instruction. Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248.

At trial, neither party offered an instruction on battery. An instruction defining aggravated battery was, however, given. Generally, a party may not object to the absence of an instruction when he fails to tender it. (Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248.) However, in his post-trial motion, defendant argued that the instruction was essential because battery was the predicate offense of aggravated battery, which was the basis of the armed violence count. This could be viewed as an argument that the jury was not properly instructed on the elements of armed violence, since it did not know the legal definition of battery. Fundamental fairness requires the jury be given basic instructions. Those instructions include the elements of the offense charged. (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) Since the lack of a battery instruction could be viewed as affecting the fundamental fairness of defendant’s trial, the merits of this issue will be addressed.

Defendant argues the jury was improperly instructed because it never was told it had to find bodily harm was done without legal justification. The IPI committee note states a definition of battery should be given whenever the jury is instructed on aggravated battery. (IPI Criminal 2d No. 11.07, Committee Note, at 210.) The primary responsibility for preparing instructions rests with the parties. Therefore, ordinarily a trial court has no general duty to sua sponte instruct the jury on the facets of the case. Huckstead, 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Hicks (1987), 162 Ill. App. 3d 707, 516 N.E.2d 807; People v. Peebles (1984), 125 Ill. App. 3d 213, 465 N.E.2d 539; People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610.

In instructions, a term which is employed in a general, nontechnical context need not be defined. (Hicks, 162 Ill. App. 3d 707, 516 N.E.2d 807 (lack of definition of arson in a possession of incendiary devices case was not plain error); Johnson, 98 Ill. App. 3d 228, 424 N.E.2d 610 (lack of definition of theft was not plain error in a burglary trial); People v. Parks (1971), 133 Ill. App. 2d 348, 273 N.E.2d 162 (theft is not a term of art when considered in the case).) The Parks court also noted that the dictionary definition of theft compared with its statutory definition. See also Peebles, 125 Ill. App. 3d 213, 465 N.E.2d 539.

A person commits battery when he knowingly or intentionally, without legal justification, causes harm to an individual by any means. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(1).) Battery is defined as “the unlawful beating or use of force on a person without his consent.” (Webster’s Ninth New Collegiate Dictionary 135 (1986).) The “unlawful” beating or use of force implies that the offender acted “without justification.” Thus, it could fairly be stated that the jury would have understood the meaning of battery in this case. (See Hicks, 162 Ill. App. 3d 707, 516 N.E.2d 807; Parks, 133 Ill. App. 2d 348, 273 N.E.2d 162.) No plain error occurred under the facts of the instant case.

Defendant makes a one-paragraph subargument urging this court to find that waiver of the instructions issue for purposes of review constituted ineffective assistance of counsel. The purpose of the constitutional requirement of effective assistance of counsel is to ensure a fair trial. The benchmark for assessing ineffective assistance claims is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. A two-part test exists for determining ineffective assistance of counsel. First, defendant must show counsel’s performance was actually deficient; and second, defendant must show the deficiency prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Any failure to preserve for review the instructions issues did not create a reasonable probability of a different outcome. No error occurred in instructing the jury.

Bobowski had a heart attack approximately one week before defendant’s trial date. On December 23, 1988, the prosecutor argued a motion for an extension of the speedy trial term. (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(c).) The prosecutor noted that it would be possible to take Bobowski’s deposition while he was hospitalized or at home recovering. However, the prosecutor had been notified that Bobowski could not testify in court. The prosecutor asked for a stipulation as to the content of Bobowski’s testimony. Defense counsel did not agree to a stipulation. However, counsel stated he would agree with an evidence deposition procedure. The court reset the trial date and ordered the deposition to be taken in accordance with Supreme Court Rule 414 (107 Ill. 2d R. 414). Defense counsel was present during the deposition. However, defendant was not personally present. At trial, defendant stipulated to the admission of the deposition.

In his post-trial motion, defendant alleged he was denied his sixth amendment right “to confront the pathologist in front of a jury of his peers for cross-examination purposes.” In arguing the motion, counsel stated defendant did not waive the presence of Bobowski in open court. Defendant now argues he was denied his sixth amendment right to confront the witness by admission of Bobowski’s evidence deposition. Defendant contends he did not waive his presence during the evidence deposition.

Absent plain error, defendant has waived review of this issue. In a criminal case, both a trial objection and a written post-trial motion raising the issue are necessary to preserve an error for review. (People v. Enoch (1988), 122 Ill. 2d 176, 185-91, 522 N.E.2d 1124, 1129-32, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Crowder (1988), 174 Ill. App. 3d 939, 529 N.E.2d 83.) Here, defendant stipulated to the admission of the deposition at trial. He stated a sixth amendment challenge in his post-trial motion. However, it was directed to Bobowski’s absence at trial, not defendant’s absence at the deposition. A defendant may not change or add to the basis for his objection on review. A specific objection to evidence eliminates all grounds not specified. People v. Travis (1988), 170 Ill. App. 3d 873, 889-90, 525 N.E.2d 1137, 1146-47, cert. denied (1989), 489 U.S. 1024, 103 L. Ed. 2d 209,109 S. Ct. 1149.

Waiver applies to constitutional issues as well as nonconstitutional issues. (People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) However, plain error or errors affecting substantial rights may be addressed although they were not raised in the trial court. (107 Ill. 2d R. 615(a); People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) Review of issues pursuant to Rule 615(a) only occurs where the evidence is closely balanced or the error denied the defendant a right to a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) It should be noted that defendant does not argue admission of the deposition was improper because it failed to comply with Supreme Court Rule 414(e). 107 Ill. 2d R. 414(e).

On the merits, we note the sixth amendment gives a criminal defendant the right to confront witnesses against him. (Coy v. Iowa (1988), 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S. Ct. 2798; People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670; U.S. Const., amend. VI.) Coy held a statute which permitted a child sex-offense victim to testify from behind a screen was unconstitutional. The statute had a presumption that the child would suffer severe trauma when testifying. The Coy Court stressed that the right to face one’s accusers is a fundamental part of the rights conferred by the confrontation clause. Similarly, in Bastien, the Illinois Supreme Court, relying on Coy, found a statute which permitted the admission of a videotaped deposition of a child witness, without a finding of special circumstances, was unconstitutional. The statute also did not provide for contemporaneous cross-examination of the witness.

Therefore, the State’s argument that a face-to-face meeting is a secondary aspect of the constitutional right to confront witnesses is not in line with the most recent Supreme Court decisions. It is also not consistent with older Illinois cases which note the defendant’s presence is essential because he may suggest lines of examination to his attorney. See People v. Nastasio (1960), 19 Ill. 2d 524, 168 N.E.2d 728.

Coy and Bastien dealt with the confrontation clause in the context of available witnesses who appeared at trial. In Nastasio, no statement was made as to the availability of the witnesses for trial. Here, Bobowski was unavailable due to his illness. The Coy Court recognized that the right to confront witnesses is not absolute. (See also Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531.) In Roberts, the Court found that where a hearsay declarant is not present for cross-examination at trial, the confrontation clause requires a showing that he is unavailable. The clause also requires that his statement is admissible only if it bears “ ‘indicia of reliability.’ ” (Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.) Other jurisdictions following this analysis have found depositions, taken outside of the defendant’s presence, do not violate his confrontation rights. (See Coleman v. State (Ind. 1989), 546 N.E.2d 827; Gallagher v. State (Ind. App. 1984), 466 N.E.2d 1382; State v. Wells (Iowa 1989), 437 N.W.2d 575.) However, other courts have found a defendant must waive his presence at the deposition prior to its admission. (See generally State v. Alvarado (1988), 158 Ariz. 89, 761 P.2d 163 (and cases cited therein).) Many jurisdictions have found admission of videotaped depositions of available child sex-offense victims satisfies the sixth amendment requirement where a special finding of trauma is made. See generally State v. Dunbar (Vt. 1989), 566 A.2d 970; State v. Tafoya (N.M. 1988), 108 N.M. 1, 765 P.2d 1183, cert. denied (1989), 489 U.S. 1097, 103 L. Ed. 2d 938, 109 S. Ct. 1572; State v. Lucero (N.M. Ct. App. 1989), 109 N.M. 298, 784 P.2d 1041; People v. Thomas (Colo. App. 1988), 770 P.2d 1324.

The Nastasio, Bastien, and Coy cases are distinguishable from the instant case. No showing was made in those cases that the witness was unavailable to testify at trial. Therefore, the analysis of Roberts should be followed. Here, the pathologist was unavailable. The deposition was taken under oath, and the witness was subject to cross-examination by defense counsel. Under Roberts and Coleman, the admission of the statement did not violate defendant’s right to a face-to-face confrontation with the witness. See Gallagher, 466 N.E.2d 1382.

Defendant next argues his armed-violence conviction must be vacated because he subsequently pleaded guilty to second-degree murder based upon the same facts. Defendant relies upon People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501, and People v. Clay (1987), 165 Ill. App. 3d 68, 518 N.E.2d 659. In Alejos, the court held voluntary manslaughter as an unpremeditated offense could not serve as a predicate offense for armed violence. (Alejos, 97 Ill. 2d at 513, 455 N.E.2d at 52.) In Fernetti, the court, using the same analysis, held involuntary manslaughter could not serve as a predicate offense for armed violence. (Fernetti, 104 Ill. 2d at 25, 470 N.E.2d at 503.) In Clay, the court noted the State could not avoid Alejos and Fernetti by charging defendant with armed violence based upon aggravated battery and voluntary manslaughter and receiving convictions on both. The court held that when the convictions are returned for armed violence and voluntary manslaughter arising out of the same set of facts, the armed-violence conviction must be vacated and judgment entered only on the voluntary-manslaughter conviction. Clay, 165 Ill. App. 3d at 71, 518 N.E.2d at 661.

Alejos, Fernetti, and Clay do not control the instant situation. In those cases, the same act supported the convictions. Here, defendant was charged with armed violence based upon aggravated battery. The aggravated battery alleged great bodily harm. The evidence showed that during the argument, defendant pushed his cousin out of the way, said he was going to do “the time,” and shot Bevly in the chest. This wound was not fatal. This evidence would sustain the armed-violence conviction based upon aggravated battery.

After defendant initially shot Bevly, Bevly turned and ran. The second or third shot was the fatal one. The murder counts were based upon the second physical act of shooting Bevly. The witnesses disagreed as to the timing between the first and second shots. Additionally, the testimony varied about how far Bevly had run prior to the second injury. Defendant testified he saw Bevly with a weapon, Bevly threatened his life, and he meant only to defend himself. This was also disputed. Bobowski testified that the fatal shot could have been caused by someone aiming at the ground.

When more than one offense arises from a series of incidental or closely related acts and the offenses are not included offenses, conviction and concurrent sentences may be entered on each offense. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Doe (1988), 175 Ill. App. 3d 371, 529 N.E.2d 980; People v. Drake (1988), 172 Ill. App. 3d 1026, 527 N.E.2d 519.) Here, the jury could have found two physical acts occurred which were the basis for the two convictions. The armed violence based upon shooting Bevly in the chest and injuring him is not an included offense of the voluntary manslaughter based upon the second series of shots. Defendant could have been appropriately convicted of murder and aggravated battery. (People v. Taylor (1985), 139 Ill. App. 3d 779, 487 N.E.2d 767; People v. Wieland (1984), 123 Ill. App. 3d 576, 462 N.E.2d 1256.) Since defendant could have appropriately been convicted of both offenses, no problem arises when he later decided to plead guilty to an included offense of the first-degree murder counts. Defendant’s armed-violence conviction need not be vacated.

Defendant next argues that the trial court abused its discretion in sentencing. Defendant contends the sentence was unduly severe in light of his record and the fact that the offense was provoked. Armed violence is a Class X felony. It is punishable by a sentence of not less than 6 years nor more than 30 years’ incarceration. (Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 3(a), 1005 — 8—1(a)(3).) The trial court sentenced defendant to 30 years’ imprisonment. The court noted defendant’s record showed escalating violence and he displayed a cavalier attitude about shooting someone. Defendant’s presentence report showed three adult felony convictions and five misdemeanor offenses. The court correctly noted defendant’s record showed increased weapons offenses.

Absent an abuse of discretion, the trial court’s sentencing determination will not be altered upon review. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422.) The trial court is in the best position to assess the proper sentence based upon the particular circumstances of the case. (Ward, 113 Ill. 2d at 525-26, 499 N.E.2d at 425; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Jones (1988), 172 Ill. App. 3d 1048, 527 N.E.2d 521.) No abuse of discretion in sentencing occurred.

For the above reasons, we affirm the trial court.

Affirmed.

LUND AND SPITZ, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. SANDRA K. SANDNESS, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fourth District
    No. 4—89—0768
    Opinion filed May 1, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The Secretary of State (Secretary) appeals from a circuit court order directing the issuance of a judicial driving permit (JDP) to defendant Sandra K. Sandness. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1.) We reverse.

Defendant was placed on court supervision for driving while under the influence of alcohol (DUI) on July 6, 1984. Ill. Rev. Stat. 1983, ch. 95V2, pars. 11-501, 11-501.1.

Defendant was again arrested and charged with DUI on March 17, 1989. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 501(a)(2).) She refused to submit to any chemical testing, whereupon the arresting officer served defendant with notice that her license and driving privileges would be immediately subject to suspension. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1.) Defendant subsequently received separate letter notice confirming a 12-month summary suspension of her license and driving privileges.

Defendant pleaded guilty to the DUI charge on July 20, 1989. The Sangamon County circuit court accepted her plea and sentenced defendant to court supervision for a one-year period conditioned on alcohol-abuse counseling and payment of a $500 fine.

On July 20, 1989, defendant filed a petition for a JDP to travel to and from counseling and work. The circuit court granted the petition and entered an order directing the issuance of a JDP to defendant. The Secretary subsequently returned the order for reassessment, indicating its determination defendant was ineligible for a JDP based on her prior DUI supervision. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11— 500.) Upon reassessment, the circuit court responded with an order again directing the issuance of a JDP to defendant.

We note defendant did not file an appellee brief on appeal. Accordingly, the standard of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, applies. Under this standard, the appellate court will decide the merits of an appeal where the record is simple and the issues are easy to resolve.

On appeal, the Secretary contends the circuit court erred in directing the issuance of a JDP to defendant because she was not a first offender within the meaning of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 100 et seq.). We agree.

Section 6 — 206.1 of the Code states the circuit court should only issue JDPs to first offenders. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1; see also People v. Pine (1989), 129 Ill. 2d 88, 97, 542 N.E.2d 711, 713.) A first offender is defined as follows:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501 *** within the last 5 years.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 500.)

The underlying purpose of this statutory scheme is to protect those who travel on Illinois highways. People v. Doyle (1987), 159 Ill. App. 3d 689, 692, 512 N.E.2d 798, 800.

The dispositive question here is whether defendant’s subsequent DUI arrest occurred within five years of the disposition of her prior DUI arrest. (People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 99, 546 N.E.2d 1182, 1184.) This determination presents a pure question of law. As such, we may determine the correctness of the ruling below independently of the judgment by the circuit court. People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37, 39, 543 N.E.2d 1088, 1089.

In this action, the record shows defendant received court-assigned supervision for her prior DUI arrest on July 6, 1984. She was again arrested for DUI on March 17, 1989. These two events occurred within a five-year period. Thus, defendant was not eligible for a JDP as a first offender within the meaning of the Code. See People v. Kerr (1990), 196 Ill. App. 3d 207.

The judgment of the circuit court of Sangamon County, insofar as it granted defendant a JDP, is reversed.

Reversed.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLAN M. THOMANN, Defendant-Appellant.
    Fourth District
    No. 4—89—0824
    Opinion filed May 1, 1990.

      Larry S. Mills, of Law Offices of Richard J. Doyle & Associates, of Dan-ville, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On June 15, 1989, defendant Allan Thomann was found guilty, following a bench trial in the circuit court of Vermilion County, of committing the offense of child pornography in violation of section 11— 20.1(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(2)). He subsequently was placed on probation. He now appeals, alleging numerous errors. We affirm.

On September 8, 1988, an information was filed alleging defendant committed five counts of child pornography. These counts were all based on the possession or dissemination on July 14, 1988, of a videotape portraying children under the age of 18 years involved in various sexual acts prohibited by the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1.) A bench trial commenced on June 12, 1989.

The evidence establishes that Indiana State Police investigator Chris Hunt had been working in the field of the sexual exploitation of children for several years. Part of his investigations involved placement of personal ads in various sexually explicit magazines. One such ad was placed in the magazine entitled, “Video Xcitement.” The ad indicated a “swinging couple” was wanting to exchange or purchase photos or videos. It further indicated they were looking for “tapes on family interests, male or female, slender types, little or no body hair.” It gave an alias and a post office box for interested parties’ responses.

On April 26, 1988, defendant responded with a letter which indicated he had read the ad and had a tape which might be of interest. It described the tape as “It is a copy of a tape shot by a father of his daughter and three of her friends (a girl and two boys).” Hunt did not get this from his post office box until July.

On July 11, 1988, Hunt answered by letter sent to defendant’s post office box. On July 18, he received from the defendant another letter and the videotape in question. The letter explains that defendant tried to make a copy of the tape but was unhappy with the results so he sent the original and would like it back. It also observed that the tape needed to be rewound to the beginning. Hunt again responded by letter and included some photographs which he took from a sexually explicit magazine. Defendant responded with another letter returning Hunt’s pictures and including some of his own. Defendant telephoned the number Hunt gave him and left a message on Hunt’s answering machine. On August 24, 1988, Hunt, after getting a number from directory assistance, called defendant’s home and spoke with his father. Hunt was directed to call defendant at his place of business and he did so, leaving a message. Defendant returned Hunt’s call, and Hunt taped the conversation.

In the conversation, defendant indicated he had the tape for several years. The following exchange occurred:

“[Hunt]: Boy, that’s nice. That was in — that tape’s in awfully good shape and I tell you, those — teenage girls, they — they know how to get it on there.
Defendant: Yeah, yeah, there’s no question about it.
[Hunt]: And the — Did you put — Allan, I especially like those stills on the — on the back of it.
Defendant: You know, I had forgotten those were on it. Again, I did not do that. I need to — because you had mentioned it I need to take a look at that and see what that is, because I have forgotten. [Y]ou know, it’s such a long segment that I’m never — I don’t know if I have ever paid any attention to what was on that.”

Later, the following transpired:

“[Hunt]: But let me do that, and I tell you what, I got to look through that tape one more time. I tell you, those teenage girls, they — I just got to think it looks like they’re what, about fourteen or fifteen years of age.
Defendant: Oh, yeah, yeah, probably, that’s exactly it.
[Hunt]: Oh, they’re nice. Look at that, and I like those stills at the end again.
Defendant: Okay.”

On September 8, 1988, the present information was filed and a search warrant was authorized and executed upon defendant’s home. Defendant, not wishing to upset his parents, who lived with him, directed the police to his bedroom, telling them that what they wanted was there. Found in the room was a briefcase containing numerous items, including two of the letters Hunt sent. Also recovered were three magazines, “6-16,” “Nudist Children and Their Parents,” and “Young and Naked,” which depict children, with and without their parents, naked. These did not involve any sexual activity. The police found in an envelope several pictorial advertisements with order forms for various graphic sexual matters, including “Lolita” magazines, which depict children in sexual activities.

The videotape sent to Hunt was approximately two hours long and was played for the court. It appeared to be a homemade video. The first portion involved a film of a sexual nature. It was followed by several still photographs depicting children in various sexual poses. After several minutes of “snow,” the end of the movie “Elephant Man” came on. Apparently the maker of the video used a tape of that movie to record on.

Dr. Phillip Merk observed the tape as it was played. He is a board-certified pediatrician who teaches at Indiana University and works part time with the sexual abuse clinic involving sexually abused children. He also teaches seminars concerning such children throughout the State. He explained it is possible to tell the age range of children using the Tanner method, based on development of the genitalia, the presence of pubic hair, and the development of the female’s breasts. After viewing the tape, he rendered an opinion concerning the ages of the various participants in the still photos, which placed most of them in the range of 8 years to 14 years. He was unable to make any age determination on the participants in the action film portion of the tape.

Defendant explained in his testimony that he has a collection of over 50 videotapes on a wide variety of subjects. Some of these, 8 to 10 in number, are of a sexually explicit, adult nature. He received the tape in question approximately five years earlier. It came with some other tapes which he had requested. This one was unsolicited. When he first received the tape he viewed it, but he only viewed about the first 15 or 20 minutes of it. After that, he put it away and never looked at it again. He explained this is the reason the tape needed to be rewound by Hunt. He never saw the portion containing the still photos.

He stated that the taped conversation with Hunt took place around 5 p.m. on a workday. He explained that he owns and operates a radio station and that the office is very hectic around that time. He maintains he was distracted during much of the call and was not paying attention. He was simply being agreeable with Hunt, and this is why he agreed with some of Hunt’s statements.

He also explained that the Lolita advertisements were totally unsolicited and he had received those several years prior. At first he threw them in the garbage but, upon consideration, he became concerned his parents would see them. He returned the ads to his briefcase and forgot about them. He explained he never tried to copy the tape and he placed that language in his letter as a means of salesmanship. Defendant then presented the testimony of numerous witnesses as to his character and community involvement.

The court found defendant guilty of one count and not guilty of four others. It subsequently placed defendant on 18 months’ probation and fined him $7,500. Defendant now appeals, alleging (1) the search warrant was defective for failing to establish probable cause to search defendant’s home; (2) the search warrant was defective for failing to particularly describe the items to be seized; (3) the videotape was improperly introduced into evidence; and (4) defendant was not proved guilty beyond a reasonable doubt.

Defendant initially argues the search warrant executed on his residence was invalid and the court erred by denying his motion to suppress the evidence seized pursuant to the search. He specifically argues that there was no probable cause to search his residence and that the warrant fails to properly describe the items to be seized.

On September 8, 1988, the State procured an arrest warrant for defendant for the instant offense and, at the same time, sought the search warrant in question. Investigator Hunt gave oral testimony for the basis of the search warrant. This testimony was substantially similar to his trial testimony. It included the exchange of letters, phone conversations, and a brief description of the videotape.

Defendant observes that before a search warrant may be issued, a showing must be made that the facts and circumstances are sufficient to warrant a reasonable person to believe that an offense has occurred and that evidence thereof is at the place to be searched. (People v. Stewart (1984), 104 Ill. 2d 463, 476, 473 N.E.2d 1227, 1232.) He argues that Hunt’s testimony fails to establish any connection between his residence and the criminal offense. He observes Hunt testified that he always dealt with defendant through a post office box number or on the telephone at the radio station. Defendant maintains that the search warrant is therefore defective for authorizing a search of his residence, and the court should have granted the motion to suppress.

Our supreme court has observed that in reviewing the sufficiency of a search warrant complaint it is only the probability, and not a prima facie showing, of criminal activity which is the standard of probable cause. (Stewart, 104 Ill. 2d at 475, 473 N.E.2d at 1232, quoting People v. Gacy (1984), 103 Ill. 2d 1, 21, 468 N.E.2d 1171, 1177.) The affidavits or evidence presented in support of- a search warrant must be tested and interpreted in a commonsense and realistic manner. (People v. Parker (1968), 42 Ill. 2d 42, 45, 245 N.E.2d 487, 489; Stewart, 104 Ill. 2d at 475-76, 473 N.E.2d at 1232, quoting Gacy, 103 Ill. 2d at 21, 468 N.E.2d at 1177.) The courts, in deciding the question of probable cause, are not disposed to be unduly technical but, rather, the probabilities considered are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. (People v. Free (1983), 94 Ill. 2d 378, 400, 447 N.E.2d 218, 228.) The determination of probable cause by the issuing court should be paid great deference by the reviewing court. Stewart, 104 Ill. 2d at 476, 473 N.E.2d at 1232, quoting Gacy, 103 Ill. 2d at 21, 468 N.E.2d at 1177.

Here, the evidence presented the court establishes that defendant mailed a videotape involving child pornography to Hunt. Defendant’s letters described some of the activity on the tape and indicated that this is a “loaner,” which he wanted back. Defendant also indicated he and his wife were voyeurs, and that he wanted to know if Hunt had similar material. This would indicate to a reasonable person that defendant was interested in watching such material. While Hunt only mailed items to a post office box number, it is apparent that defendant would not be able to store his items there. An application of common sense would lead a reasonable person to the conclusion that since defendant has indicated he and his wife are voyeurs, and since such property cannot be stored in a post office box, it is most probable that similar property is kept at his residence, where viewing would most likely take place. Although it may not be easy to determine the existence of probable cause in any given case, the resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded warrants. (Stewart, 104 Ill. 2d at 477, 473 N.E.2d at 1233.) In reviewing the evidence in a commonsense and realistic fashion, we believe it is sufficient to justify issuance of the warrant for defendant’s residence.

Further, accepting defendant’s argument that probable cause was lacking, we find the good-faith exception to the exclusionary rule to be applicable. In United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, the Court modified the exclusionary rule to allow the State to use evidence obtained by officers acting in good faith and in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found to be unsupported by probable cause. This exception was adopted and applied by our supreme court in Stewart (104 Ill. 2d at 477, 473 N.E.2d at 1233).

Defendant argues the exception should not apply because the warrant is facially deficient and Hunt misled the court by withholding some information and supplying other misleading information. (See People v. Bohan (1987), 158 Ill. App. 3d 811, 818, 511 N.E.2d 1384, 1389.) However, a review of the warrant establishes that it is not so facially deficient that the executing officers cannot reasonably presume it to be valid. (Bohan, 158 Ill. App. 3d at 819, 511 N.E.2d at 1389.) We also observe that a mechanism has been created pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, to provide a hearing to protect a defendant against perjurious warrant applications. (People v. Lucente (1987), 116 Ill. 2d 133, 150, 506 N.E.2d 1269, 1276.) Defendant pursued such a hearing in the trial court. However, our review of Hunt’s probable-cause testimony, in view of his trial testimony, fails to convince us that he misled the court with information he knew was false or, but for his reckless disregard for the truth, should have known was false. See Bohan, 158 Ill. App. 3d at 818, 511 N.E.2d at 1389.

Defendant also maintains the warrant is defective because it does not sufficiently describe with particularity the items to be seized. Defendant raised a number of objections to the search warrant at the trial level, but this was not one of them. Nor was this allegation included in defendant’s post-trial motion. Accordingly, this issue is properly considered waived. People v. Enoch (1988) 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1129-30, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

A trial court’s determination on a motion to suppress will not be disturbed unless it is manifestly erroneous. (Free, 94 Ill. 2d at 401, 447 N.E.2d at 229.) We find no such difficulty in this case with the trial court’s denial of defendant’s motion.

Defendant next contends the videotape was improperly admitted into evidence due to a lack of foundation. There is no dispute that the videotape is the one defendant mailed Hunt. Defendant observes that a sufficient foundation for the introduction of a photograph or videotape is made by testimony of any person with personal knowledge of the object of the photograph or tapes at a time relevant to the issues, that the photograph or tape is a fair and accurate representation of the object at that time. (People v. Hebel (1988), 174 Ill. App. 3d 1, 27, 527 N.E.2d 1367, 1384, cert. denied (1989), 489 U.S. 1085, 103 L. Ed. 2d 848, 109 S. Ct. 1544.) He further observes that there is no testimony that the videotape in this case truly and accurately depicts what it purports to depict. Accordingly, he insists the foundation is improper and the tape should not have been introduced into evidence. We disagree.

We have no disagreement with defendant’s general proposition of law. It is his application of this principle with the facts of the present case with which we disagree. As the trial court so astutely put it, defendant is arguing apples and oranges.

The authority defendant relies upon addresses the circumstance where the pictures are used as demonstrative evidence of a scene or object (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.8, at 125 (4th ed. 1984)) or, more recently, as substantive evidence of a crime (Hebel, 174 Ill. App. 3d at 28-29, 527 N.E.2d at 1384-85). Under each circumstance, the pictures are portraying a scene or incident for the court. Accordingly, it is necessary that the evidence establish they accurately portray this incident or scene.

However, in the present case, defendant is convicted of disseminating a videotape which portrayed children involved in sexual acts. Thus, it is the videotape itself which is the critical piece of evidence. The tape is not relevant as demonstrative evidence of the incident as it was actually filmed or as substantive evidence of any criminal offense that occurred at that time. The dissemination of the videotape itself is the criminal offense. Since we are not concerned with the underlying incident or the scene that the tape portrays, it is not necessary for testimony to be presented that the tape fairly and accurately depicts the scene.

Defendant insists that to lay a proper foundation the State must show that the videotape accurately portrays persons under the age of 18. He maintains the failure to do so would “allow persons to be convicted of child pornography, not when they possess or disseminate a photograph or videotape of someone who is under 18 but merely when they look to be under 18.” However, defendant is confusing the evidence necessary for the foundation of the tape with that necessary for a conviction.

In People v. Schubert (1985), 136 Ill. App. 3d 348, 483 N.E.2d 600, the defendant was convicted under a predecessor of the current child pornography statute for possessing photographs. He maintained the State must present independent evidence of the children’s ages to support the conviction. The court disagreed, observing the pictures speak for themselves. (Schubert, 136 Ill. App. 3d at 354, 483 N.E.2d at 605.) The court explained:

“Congressional investigations indicate that Chicago is a major center for producing and disseminating child pornography. However, it is often impossible to determine the source of the child pornography. It is quite common for photographs made in the United States to be sent to foreign countries to be reproduced and then returned to this country to give the impression of foreign origin. [Citation.] The identity of children depicted and their whereabouts are frequently unknown. Requiring law enforcement officials to track down and identify the depicted children to successfully prosecute a child pornography case would destroy the effectiveness of the child pornography statute in preventing the sexual exploitation of children. Therefore, the legislature has vested the trier of fact with the function of determining the age of the child depicted.” Schubert, 136 Ill. App. 3d at 353, 483 N.E.2d at 604-05.

Thus, it is clear that the determination of the age of the participants is to be made by the trier of fact during the proceeding as a necessary element of the offense. This determination is not a part of the necessary foundation for the introduction of the tape. All the State must show as a foundation is that the tape introduced into evidence is the tape Hunt received from the defendant and that this tape has not been altered in any fashion since then. As noted, there is no dispute that this was done. Accordingly, there is no doubt that it was properly introduced into evidence.

Finally, defendant maintains he was not proved guilty beyond a reasonable doubt. He believes the evidence fails to establish the participants are under 18 years of age and that he had knowledge the still photographs which Dr. Merk identified as involving underage children were on the tape.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, if after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

The sole testimony concerning the age of the participants was the testimony of Dr. Merk. Defendant believes this testimony is impeached by the possibility that the photos were airbrushed.or that the participants have a hormonal problem. However, there is no evidence of either of these occurring. While these are possibilities, their likelihood goes to the weight of Dr. Merk’s testimony. The court had the opportunity to observe the tape and listen to the testimony. In fact, a court does not need expert testimony to determine whether the participants are underage, but can rely on its own everyday observations and common experiences in making this determination. (Schubert, 136 Ill. App. 3d at 354, 483 N.E.2d at 605.) Accordingly, we can find no error with the court’s finding.

Similarly, we have no difficulty with the court’s determination concerning defendant’s knowledge. The length of possession of the tape, the ad to which defendant responded, the letters, the phone conversation, and everyday experiences and observations support this conclusion. Admittedly, defendant testified to the contrary and offered explanations for various facts. However, some of these explanations are less than compelling. Further, a trial court is not required to accept a defendant’s testimony. In a bench trial, it is the function of the court to determine the credibility of witnesses and the weight that should be given to their testimony. (People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398, 401.) It is not for our court to substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) Considering all the evidence in the light most favorable to the prosecution, we find the evidence sufficient to sustain the conviction.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL E. MINOR, Defendant-Appellant.
    Fourth District
    No. 4—89—0675
    Opinion filed May 1, 1990.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On July 11, 1989, after a bench trial, defendant was convicted of driving while his driving privileges were suspended. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303.) He appeals, arguing the trial court erred in admitting a signed document from the Secretary of State (Secretary) as evidence that defendant’s driving privileges had been suspended.

We affirm.

The salient facts are taken from the common law record and a bystander’s report. On October 24, 1988, Officer Price of the El Paso police department observed defendant and another individual driving vehicles on the wrong side of East Clay Street. Price followed the vehicles. Both turned into a mobile home park, where Price observed defendant exit one of the vehicles.

Defendant testified that he had not been driving that day and had just left his mobile home when Officer Price arrived.

The State introduced a document from the Secretary which certified defendant’s driving privileges had been suspended on April 9, 1988. The Secretary further certified the 1988 suspension was in effect on October 24, 1988, that the certification had been made after a review of the driving records, and all statutorily required notices had been given to defendant prior to any action. The document was dated and signed by the Secretary. The State seal had been affixed to the document. Although the document stated copies of defendant’s driving record abstract and other pertinent documents were attached, no such attachments were appended to the certification. The court admitted the certification over objection and stated it was prima facie evidence of the matters contained within it.

Defendant argues the document was inadmissible because it did not have attached to it a copy of the suspension order and an abstract of defendant’s driving record. Second, defendant argues the certification was not admissible under the business-record exception to the hearsay rule because it was prepared for litigation.

In People v. Manikas (1969), 106 Ill. App. 2d 315, 246 N.E.2d 142, the court addressed the admissibility of the certificate from the Secretary. The court held the document was admissible as a business record because the Secretary was required to maintain such information and provide it upon request from governmental agencies. The Manikus court noted Manikus did not offer any evidence to rebut the information contained in the Secretary’s certification. Thus, the evidence was sufficient to support a conviction. Manikus, 106 Ill. App. 2d at 322-23, 246 N.E.2d at 147.

Under the Illinois Vehicle Code (Code), the Secretary is required to retain records of revocation and suspension. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 117(b).) The Secretary is authorized to prepare certified copies of the driving records, which are admissible in court. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 108.) The Secretary may provide abstracts of a driver’s record to the courts. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 123(g).) Such an abstract is prima facie evidence of the facts stated therein. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 123(g)(5).) An abstract is a summary of the larger record. Webster’s Ninth New Collegiate Dictionary 47 (1986); Black’s Law Dictionary 9 (5th ed. 1986).

Here, the certification from the Secretary contained a brief summary of the salient portion of defendant’s driving record, the date and fact of his suspension. We acknowledge this was not an abstract of the complete driving record; however, the statute does not state the abstract must be of the complete driving record. (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 123(g).) Thus, the certification was admissible and was prima facie evidence of the facts stated within it. The trial court did not err in admitting the certification of defendant’s suspension.

Defendant’s argument that the document was not admissible under the business-records exception to the hearsay rule because it was prepared for litigation does not change this result. The prerequisite for admission of public records as an exception to the hearsay rule is that the record is made in the ordinary course of business and is authorized by statute, rule, or regulation, or required by the nature of the public office. (People v. Williams (1986), 143 Ill. App. 3d 658, 663, 493 N.E.2d 362, 366.) As a part of its ordinary business, the Secretary is required to prepare abstracts for the courts, public defenders, and other officials. Thus, the general exclusion of matters prepared for litigation would not apply.

Only two elements are necessary to establish the offense of driving while one's license is suspended: the fact of a suspension and the act of driving on the highways of the State. (See People v. Younge (1980), 83 Ill. App. 3d 305, 404 N.E.2d 415.) These elements were established in the instant case.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.