author: JUSTICE McLAREN JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND THINGVOLD, Defendant-Appellant.
    Second District
    No. 2—88—0410
    Opinion filed November 22, 1989.

      REINHARD, J., dissenting.
    Robinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Raymond Thingvold, was charged by information with the offense of solicitation (Ill. Rev. Stat. 1985, ch. 38, par. 8—1). He allegedly solicited George Nalan over a period of time to arrange the murder of defendant’s wife, Barbara Thingvold. He was found guilty and sentenced to a prison term of 25 years.

Defendant initially attacks the sufficiency of the information under which he was charged, contending that it failed to properly allege that the offense occurred within the applicable statute-of-limitations period or to adequately plead an exception to the statute. We disagree.

A prosecution for the offense of solicitation must commence within three years of the commission of the crime. (Ill. Rev. Stat. 1987, ch. 38, par. 3—5(b).) When the offense is based on a series of acts performed at different times, the limitation period starts when the last such act is committed. Ill. Rev. Stat. 1987, ch. 38, par. 3—8.

The information in this case was filed on June 25, 1987. However, it charged that defendant committed the offense of solicitation “between the dates of December 1, 1983 and *** the 30th day of April, 1986, ” and that the offense was “being based upon a series of acts performed at different times.” The information also specifically referred to section 3—8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 3—8). The period of December 1, 1983, through June 24, 1984, is clearly outside the three-year statutory boundary. The State argues that it has remedied the problem by alleging that defendant’s offense is a series of acts committed in a period of time which ended within the limitation period. Therefore, the entire series of defendant’s actions would be within the statute of limitations.

Nowhere, however, does the information allege that any of defendant’s actions were performed within the limitation period. No facts are alleged that even the last of the series of acts occurred after June 24, 1984. Defendant cites as controlling in this situation People v. Toolen (1983), 116 Ill. App. 3d 632. In Toolen, the indictment alleged that criminal conduct occurred between “ ‘January 1, 1979 and October, 1980.’ ” (Toolen, 116 Ill. App. 3d at 653.) However, the first month of that period lay outside the limitation period. The indictment alleged no facts to establish that the last of a series of acts occurred any time after the first month. The court there ruled that the failure to allege such facts rendered the indictment insufficient to charge an offense. Toolen, 116 Ill. App. 3d at 653.

We are not persuaded by the reasoning in Toolen. Our supreme court has held that if a charging document does not allege that the crime was committed within the period fixed by the statute of limitations, facts must be alleged and proved which would toll the running of the statute under the various provisions, including section 3—8. (People v. Strait (1978), 72 Ill. 2d 503, 505-06.) The grounds on which the State seeks to toll the statute should be stated in the information with sufficient specificity to enable defendant to defend against them. (Strait, 72 Ill. 2d at 506.) We conclude that the information in the case before us was sufficiently explicit to enable defendant to prepare his defense and to apprise him that the last act occurred within the time prescribed by the statute of limitations. The information alleges the applicability of section 3—8, which places defendant on notice that he is being charged with a series of actions in the period shown. The fact that no one particular act was alleged to have occurred within the limitation period is not fatal. In addition, the court instructed the jury that, to sustain the charge of solicitation, the State must prove, among other things, “[tjhat the defendant *** encouraged or requested George Nalan on at least one occasion within three years prior to April 23, 1987.” Thus, defendant could not be convicted if the State could not prove that at least one of the alleged actions took place within the limitation period. We conclude that the information adequately charged defendant and allowed him to prepare his defense. Therefore, the judgment will not be reversed on this basis.

Defendant next contends that the trial court abused its discretion in allowing testimony of three men who claimed that defendant also solicited them to kill his two wives.

Roger Atkinson testified that, between 1974 and 1976, defendant on more than one occasion brought up the possibility of having his wife at that time, Diane, killed. Atkinson, defendant, and possibly other coworkers discussed methods of killing Diane so that defendant could collect a large insurance settlement. In addition, Atkinson testified that defendant asked him if he knew anyone that would do the job, to which he replied in the negative. Defendant and Diane were divorced in 1978.

Sid Haffendon, a former co-worker of defendant for several years, testified that, between 1980 and 1986, defendant and he discussed killing defendant’s second wife, Barbara, numerous times. Haffendon testified that defendant tried to enlist his aid in transmitting money to a hired killer on several occasions and offered him financial incentives, such as a new car and a partnership in a business venture, to get involved. Defendant had even chosen the method with which to kill her; since Mrs. Thingvold had undergone a stomach operation, a stab wound to the stomach would most likely cause her to hemorrhage to death. According to Haffendon, defendant wanted to collect under the insurance policies on Mrs. Thingvold’s life.

James Wagaman met defendant through Sid Haffendon, but was never more than a casual acquaintance of defendant. Wagaman testified that defendant approached him in 1983 in a grocery store and asked him to kill Barbara Thingvold. Again, defendant recommended stabbing Mrs. Thingvold in the stomach. According to Wagaman, defendant offered him $5,000 to do the deed. Wagaman also testified that defendant wanted the insurance money and was not happy with his wife.

In general, evidence of offenses other than those with which the defendant is charged is inadmissible. (People v. Romero (1977), 66 Ill. 2d 325, 330.) However, evidence of other offenses may be admissible to show motive, intent, identity, absence of mistake or modus operandi. (Romero, 66 Ill. 2d at 330.) Such evidence must be so clearly connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried. (People v. Wolfbrandt (1984), 127 Ill. App. 3d 836, 846, overruled on other grounds sub nom. Daley v. Hett (1986), 113 Ill. 2d 75.) The trial court must weigh the probative value of the evidence against the prejudicial effects, if any, of presenting the evidence. (People v. Senez (1980), 80 Ill. App. 3d 1021, 1023.) The trial court’s ruling as to the admissibility of such evidence will not be reversed absent a clear showing of an abuse of discretion. People v. King (1985), 140 Ill. App. 3d 937, 941.

The trial court allowed the testimony of Atkinson as proof of motive or intent. Defendant argues that the testimony had no probative value on either issue because it was too remote in time and detail. While remoteness in time may decrease the probative value of evidence (King, 140 Ill. App. 3d at 941), it does not necessarily preclude the use of evidence so removed in time. (See People v. Carter (1967), 38 Ill. 2d 496.) In Carter, the supreme court approved the State’s use of testimony concerning a crime allegedly committed by the defendant seven years after the crime for which he was on trial. (Carter, 38 Ill. 2d 496.) In this case, the alleged solicitation of Atkinson occurred up to 11 years before the current charge of solicitation of George Nalan to kill Barbara Thingvold. Under Carter, we cannot say that the trial court abused its discretion because of the timing of the alleged other crime.

Defendant also argues that the testimony of Atkinson, Haffendon and Wagaman lacked sufficient probative value on the issues of intent and motive because it is remote factually. We disagree.

“Motive” is defined as “that which incites or stimulates a person to do an act.” (Black’s Law Dictionary 914 (5th ed. 1979).) All three of these witnesses and George Nalan testified that defendant mentioned the collection of life insurance proceeds as his reason for wanting his wives murdered. The collection of these proceeds was the common motive or stimulation behind defendant’s solicitation of these men. This common motive sufficiently connects the alleged prior solicitations to that of George Nalan and tends to prove defendant guilty of soliciting Nalan. (See Wolfbrandt, 127 Ill. App. 3d at 846.) Defendant points out that the testimony of Atkinson, Haffendon, and Wagaman provided no independent evidence of the insurance motive as established by evidence of actual insurance policies. Defendant testified, without contradiction, that Diane was covered by insurance worth only between $5,000 and $10,000 and that Barbara was not covered under any insurance until May 1980 and the amount of insurance was less than $50,000. Defendant argues that this evidence negates any motive of collection of insurance proceeds. However, the State is not required to produce actual policies in force at the times in question. An adequate foundation was laid when these witnesses testified that defendant spoke to them about collecting insurance proceeds. We believe that this evidence goes to the weight of the witnesses’ testimony and should be considered by the jury. We find no abuse of discretion by the trial court in admitting this evidence.

Defendant next contends that the court erred in admitting evidence of a violent attack on Barbara Thingvold, which occurred on April 21, 1986. Mrs. Thingvold had been stabbed numerous times in the neck, chest and abdomen while at the office of the ambulance company she and her husband owned. No one was ever arrested for the attack. The court admitted the evidence as tending to show motive and intent.

A court may allow evidence of other crimes; however, the State must first be able to show that a crime actually took place and that the defendant committed it or participated in its commission. (People v. Sauer (1988), 177 Ill. App. 3d 870, 880.) While the quantum of proof of the other offenses need not be that of beyond a reasonable doubt (Sauer, 177 Ill. App. 3d at 880), such proof must amount to more than a mere suspicion. People v. Miller (1977), 55 Ill. App. 3d 421, 426.

We find that the State did not sustain its burden in attempting to associate defendant with the April 1986 attack. The State acknowledged that defendant himself did not attack Barbara. The attacker was never apprehended or identified. The only facts even remotely connecting defendant to the attack are the timing and method of attack. Barbara was attacked during the period in which defendant allegedly solicited George Nalan; however, Nalan testified that he had nothing to do with the attack. That Barbara was stabbed in a manner similar to that proposed by defendant may have been admissible to show modus operandi, but no foundation had been laid to show this. Nalan never testified that defendant wanted Barbara stabbed to death. Nalan and defendant only discussed tampering with her car. Without more, this scant evidence is not enough to show that defendant participated in the April 1986 attack on Barbara Thingvold. Therefore, evidence of the attack should have been excluded.

Defendant further contends that the court erred in admitting evidence of the murder of Barbara Thingvold, who was stabbed to death in her house in March 1987. Defendant had subpoenaed police reports on the homicide investigation. The State, arguing that the murder was not related to the solicitation charge, moved to quash the subpoena. The court sustained the State’s motion in part, giving defendant only those reports which the court found related to the solicitation charge. Defendant then moved in limine to exclude evidence of the murder from the trial. The State indicated that it had no intention of presenting evidence of the murder in its case in chief. The court granted the motion. The State, before trial, moved to have the court reconsider the order in limine, but the court refused to do so.

As the defense neared the end of its case in chief, the State again moved to have the court reconsider the order in limine. Defendant had testified that George Nalan called him in late March in an attempt to extort money from defendant. Nalan allegedly threatened to tell the police that defendant gave him keys to Barbara Thingvold’s car in order to let him tamper with it. The State, arguing in chambers, asserted that this testimony opened the door to evidence of the murder. According to the State, Nalan called several weeks after the murder to tell defendant that he knew of someone to murder Mrs. Thingvold but saw that defendant already found someone to do it. The State argued that the full circumstances of the phone call were necessary to rehabilitate Nalan’s credibility, to rebut defendant’s story of extortion, and to tell the jury why he waited so long to inform the police of the solicitations. The court ruled that defendant’s testimony had opened the door to evidence of the murder and that such evidence was to be admitted for the limited purpose of witness credibility. Defendant’s subsequent motion for a mistrial was denied. An instruction limiting the jury’s consideration of the evidence to the credibility of witnesses was given.

We determine that the court abused its discretion in admitting the evidence of the murder of Barbara Thingvold. Evidence of other crimes is inadmissible solely to enhance witness credibility. (People v. Romero (1977), 66 Ill. 2d 325, 329-32.) Thus, the one reason for which the evidence was admitted was by itself insufficient. The State made no attempt to tie defendant to the murder. Therefore, no “other crime” exception could be involved, as defendant was not shown to have been involved in the commission of the murder. See Sauer, 177 Ill. App. 3d at 880.

The probative value of evidence of Mrs. Thingvold’s murder, taken by itself, is far outweighed by the prejudice it entails. In a trial for solicitation to commit murder, the violent death of the alleged intended victim would tend to point an accusing finger at the defendant. Even if the jury were told only that Mrs. Thingvold was dead, without mention of the violent end she met, such information may tend to raise more questions in the jurors’ minds than it would answer. The State’s argument for admissibility of the evidence is unpersuasive. Testimony regarding Mrs. Thingvold’s death and George Nalan’s subsequent phone call is open to various interpretations. For example, even if it were true that Nalan called because he had heard of the death, such testimony may enhance the extortion theory of defendant, as Mrs. Thingvold’s murder could provide the impetus for Nalan to attempt an act of extortion. The slight benefit that the State may obtain from such testimony is outweighed by the obvious prejudice to defendant. Other methods were available to rehabilitate Nalan’s credibility and rebut the charges of extortion. For example, Nalan could have testified to the fact that he had contacted the police about the solicitation prior to his call to defendant or simply, as the court proposed, that extortion was not the basis for the phone call. Either of these methods, or a number of others, could have achieved the State’s purpose without mentioning the murder of Barbara Thingvold. Evidence of Mrs. Thingvold’s murder should have been excluded.

We also determine that defendant was prejudiced by the manner in which this evidence was admitted. The court reversed its pretrial ruling on the admissibility of the evidence during the testimony of defendant’s final witness in his case in chief. Defendant’s trial strategy and cross-examinations were made in reliance on the court’s order excluding evidence of the murder. Prejudice may result when a decision at trial is made in reliance on an evidentiary ruling that is later changed. (People v. King (1986), 109 Ill. 2d 514, 534.) We find prejudice here. In addition, the court had previously quashed defendant’s subpoena of police records of the murder and allowed defendant only those records relevant to the solicitation charge. To allow evidence of the murder without allowing defendant the opportunity to view the records pertaining to it was clearly prejudicial. Under these circumstances a fair trial was impossible, and a new trial would be required. See People v. Wilken (1980), 89 Ill. App. 3d 1124.

Defendant finally contends that the prosecutor improperly cross-examined defendant and made improper statements in his closing arguments. Defense counsel failed to object to many of the comments and did not include any of them in a post-trial motion. The issue is therefore waived. See People v. Pallardy (1981), 93 Ill. App. 3d 725, 729.

For these reasons, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded.

Reversed and remanded.

INGLIS, J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the portions of the majority opinion which find error in the admission of certain evidence.

I believe evidence of a violent attack on Barbara Thingvold on April 21, 1986, during the period of the alleged solicitation of George Nalan to arrange her murder, was properly admitted to show defendant’s intent.

One of the elements of the offense of solicitation which the State was required to prove was that defendant requested Nalan to arrange the murder of his wife with intent that the offense of murder be committed. The evidence of the April 21, 1986, attack on defendant’s wife showed that she was attacked and stabbed in the stomach and other areas of her body. This attack was committed several weeks after defendant’s latest inquiry of Nalan as to whether Nalan had found someone to kill his wife or would do it himself. Other evidence established that defendant had told two persons that if his wife was stabbed in the stomach the complications would kill her because of her prior stomach operation. Thus, to prove that the solicitation of Nalan to arrange the murder of defendant’s wife was with the intent that murder be committed, evidence of an attempt on her life shortly after the latest solicitation by defendant, coupled with evidence that Barbara Thingvold was stabbed in the stomach as had been mentioned twice by defendant as a method of killing her, was certainly relevant.

The connection between defendant and the stabbing of his wife need not be established beyond a reasonable doubt as defendant was not on trial for that offense. (People v. Baptist (1979), 76 Ill. 2d 19, 28, 389 N.E.2d 1200.) I am satisfied that there is enough evidence that defendant participated in that crime by arranging for its commission and, further, that such evidence was relevant to prove that defendant requested Nalan to arrange the murder of defendant’s wife with the intent that murder be committed. Under the standard by which we review the trial court’s decision, there was not a “clear abuse of discretion” in the admission of this evidence to warrant reversal. People v. Phillips (1989), 127 Ill. 2d 499, 522, 538 N.E.2d 500.

With respect to the trial court admitting evidence that Barbara Thingvold was stabbed to death in her home on March 10, 1987, I agree with the State’s position that defendant’s own testimony “opened the door” so that admission of this evidence in response, limited solely to the credibility of the witnesses, was not an abuse of discretion. The pertinent evidence allowed in this regard was that when Nalan called defendant in late March 1987, he told defendant he knew his wife had been murdered and, while he had someone in Texas “to do it,” it was too late as defendant already found someone, and that Nalan did not call defendant to extort money from him. Defendant was allowed to testify that on March 10, 1987, he was summoned home by his stepson and found his wife murdered and that he had not been charged with her murder.

While defendant characterizes this evidence as evidence of other crimes, it is not, as it does not demonstrate that defendant was involved in the murder of his wife, Barbara, nor was the evidence offered for that purpose. Consequently, defendant’s argument that other crimes evidence cannot be used for the sole purpose of attacking Nalan’s credibility is misplaced.

Rather, the evidence was offered in response to defendant’s testimony regarding Nalan’s reason for calling him. Thus, the only issue to be decided is whether the probative value of the evidence outweighs its prejudicial impact such that it was properly admitted. (See People v. Monroe (1977), 66 Ill. 2d 317, 323, 362 N.E.2d 295; People v. DeHoyos (1976), 64 Ill. 2d 128, 132, 355 N.E.2d 19; E. Cleary & M. Graham, Handbook of Illinois Evidence §403.1, at 148-49 (4th ed. 1984).) In exercising its discretion in applying this standard, the court should consider the importance of the evidence to the issues, the availability of alternative means of proof, whether the point for which proof is being offered is being disputed, and, where appropriate, the potential effectiveness of a limiting or cautionary instruction. E. Cleary & M. Graham, Handbook of Illinois Evidence §403.1, at 148 (4th ed. 1984).

It is apparent in this case that the murder of Barbara Thingvold is particularly probative as to the issue of Nalan’s reason for calling defendant and, consequently, to his credibility regarding that issue. It is also relevant to defendant’s credibility as it contradicts defendant’s testimony regarding the nature of Nalan’s telephone call. It is also apparent that the potential prejudice to defendant upon admission of such evidence is arguably significant. I believe, however, that in considering the above-mentioned factors, it was proper to admit the evidence of Barbara Thingvold’s murder for the limited purpose of rehabilitating Nalan’s version of the telephone call.

Obviously, the evidence was extremely important to the issue of why Nalan telephoned defendant, particularly where defendant placed Nalan’s credibility in question by testifying that Nalan called to extort money from him. Additionally, there were no alternative means by which the State could have effectively proved Nalan’s purported reason for calling other than Nalan’s own testimony which had already been called into question. There was no other evidence independent of his testimony which could have served the same purpose as that of the evidence in issue.

Further, the trial court, recognizing the potential prejudice to defendant upon admission of this evidence, gave a limiting instruction to consider such evidence only for the purpose of assessing the credibility of the witnesses. Such a limiting instruction is particularly effective where, as here, the trial court seeks to limit a jury’s consideration of evidence to a particular issue. (See People v. Taylor (1978), 66 Ill. App. 3d 907, 912, 384 N.E.2d 558; E. Cleary & M. Graham, Handbook of Illinois Evidence §105.1, at 35 (4th ed. 1984).) Thus, based on these various considerations, the trial court did not abuse its discretion in admitting evidence of Barbara Thingvold’s murder for the limited purpose of establishing Nalan’s credibility.

As to defendant’s argument that the timing of the admission of this evidence was prejudicial, I would also disagree. The trial court only admitted the evidence after defendant had opened the door by contradicting Nalan’s version of the telephone call. As such, the limited purpose for which the evidence was introduced was not evident prior to defendant’s testimony. This situation, where defendant opened the door, is not the same as where the trial judge changes an initial ruling relied upon at trial and thus does not deny defendant a fair trial. (See People v. King (1986), 109 Ill. 2d 514, 534-35, 488 N.E.2d 949.) The prohibition imposed by a motion in limine may be lifted if the defendant’s evidence “ ‘opens the door.’ ” (People v. Nearn (1988), 178 Ill. App. 3d 480, 493, 533 N.E.2d 509.) Consequently, there was no prejudice to defendant when, at the conclusion of defendant’s testimony, the trial court changed its prior ruling on defendant’s motion in limine.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELIUS LEWIS, Defendant-Appellant.
    Fourth District
    No. 4—88—0483
    Opinion filed November 9, 1989.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant brings this appeal from his resentencing in the circuit court of Macon County. The defendant’s convictions are a result of his participation in the armed robbery of the Citizens National Bank of Decatur (bank) on December 14, 1978. The evidence presented at the original trial and the resentencing hearing indicates a conspiracy to rob the bank existed between Willie Sangster, Maurice Farris, Bernice Lewis, and the defendant. Sangster was the leader of the conspiracy and recruited Farris and the Lewises to participate in the robbery.

On December 10, 1978, Sangster took Farris to the bank and explained the planned robbery and proposed escape. On December 12, Farris was introduced to the defendant and his sister Bernice at Sangster’s residence. At that point, he informed the Lewises of Sangster’s plans for the robbery. Later Farris took the Lewises to the bank and had them observe the routine of the bank guard and tellers and showed them the escape route.

On the morning of December 14, 1978, Farris drove the Lewises around Decatur to steal a car for use in the robbery. They drove into the parking lot of a day care center and observed Mary Comerford park her car and take her child into the center. Farris testified the defendant got into the back seat of Comerford’s car armed with a handgun. Comerford testified it was Farris in the back seat, and she was forced to drive away. She was later bound, gagged, and placed in the trunk of her car.

The Lewises then drove Comerford’s car to the bank. Shortly before 8 a.m., five tellers and a bank guard were preparing to leave for a drive-in facility close to the bank. Each teller carried a black attache case with the cash required for that day’s business. They had just entered the bank’s van when the front passenger door of the van was opened by a tall, masked black male holding a handgun. The gunman leaned across the passenger seat and shot the guard. The guard died within a few minutes. The sliding passenger door of the van was opened by a second man. The gunman took the bank guard’s gun, and the two men then proceeded to take three of the attache cases. They ran to Comerford’s car and drove away.

The defendant and the other participants were arrested. The defendant was charged with armed robbery and aggravated kidnapping for his participation in the robbery. He was also accused of being the gunman who shot the bank guard and was additionally charged with murder. He and his sister were tried as codefendants. At their jury trial in 1979, he was found guilty of all three counts. The court ordered a presentence investigation for defendant’s sister but not for the defendant. On June 22, 1979, he was sentenced to death for the murder conviction. No sentence was imposed on the armed robbery or aggravated kidnapping charges. The supreme court affirmed the circuit court’s judgment and sentence on November 13, 1981. People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346, cert, denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307.

On March 31, 1986, the defendant filed a petition for a writ of habeas corpus in the Federal district court. The district court issued a writ vacating the sentence of death and ordering a new sentencing hearing. (United States ex rel. Lewis v. Lane (C.D. Ill. 1987), 656 F. Supp. 181.) On appeal the Seventh Circuit Court of Appeals affirmed the district court’s issuance of the writ. Lewis v. Lane (7th Cir. 1987), 832 F.2d 1446, cert, denied (1988), 488 U.S. 829, 102 L. Ed. 2d 59, 109 S. Ct. 83.

In the resentencing before the circuit court, the State again requested a death penalty hearing be held. A sentencing hearing was held before a jury on May 11, 1988. In the first phase of the death penalty hearing, the jury found the defendant was eligible for the death penalty under section 9—1(b)(6) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(6).) In the second phase of the hearing, the jury found the death penalty should not be imposed on the defendant.

On June 27, 1988, the defendant was sentenced to a term of natural life imprisonment for the murder conviction. The circuit court also imposed a 30-year term of imprisonment for armed robbery and a consecutive 15-year term for the aggravated kidnapping. On June 30, 1988, a notice of appeal was filed.

Plaintiff on appeal maintains the failure of the trial court to order a presentence report prior to his 1988 resentencing is reversible error which requires this court to remand for yet another resentencing. He relies on section 5—3—1 of the Unified Code of Corrections, which requires the court to order a presentence investigation before a defendant may be sentenced on a felony conviction. Ill. Rev. Stat. 1987, ch. 38, par. 1005—3—1.

The Illinois Supreme Court in People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, held the presentence report requirement of section 5—3—1 was a statutory mandate which could not be waived by a defendant except as allowed by statute where the parties agree to the imposition of a specific sentence. In People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, the supreme court held substantial compliance with the report requirement was not sufficient to fulfill the statutory mandate and instituted a per se compliance standard which required the court to order a written presentence report.

People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, raised the question presented here, whether a presentence report is required before sentencing in a capital murder case where the jury finds there are mitigating factors which preclude the imposition of the death penalty. The supreme court declined to decide the issue on that occasion, finding it was not required to do so by its holding in that case. The court then enunciated the rule that chapter V of the Unified Code of Corrections, which requires a presentence report in all felony cases, is not applicable to capital cases because the court had no discretion in sentencing. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—1—1 et seq.) Though not relying on it, the court also noted that it failed to see how the preparation of a presentence report could have provided additional relevant information. The court again reaffirmed its holding that a sentencing hearing in a capital murder case substantially fulfills the purpose of a presentence report in People v. Madej (1985), 106 Ill. 2d 201, 478 N.E.2d 392, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 268. The court also noted defects in a presentence report could be waived and the defendant did not object to the imposition of sentence without the report at the hearing.

While we concede the interplay of the supreme court’s opinions in this area gives some color to the defendant’s arguments, we find they are ultimately without merit. The defendant urges us to a superficial application of the per se rule to the facts of this case. We decline to adopt defendant’s rationale, finding it preferable to apply the underlying reasoning of the supreme court’s decisions to the facts presented here.

Though we acknowledge the wisdom of the per se rule in a typical felony case, we fail to perceive what good would come from the application of this rule here. Given the extensive nature of the evidence presented in this and other capital sentencing hearings, there is little if any additional information which could be added by a presentence report. The defendant here has not suggested any actual prejudice, and our review of the record suggests the only additional information which would be generated by such a report is the availability of special resources in the community to aid in the defendant’s rehabilitation. Given the nature of the defendant’s crimes, his criminal record, and the trial court’s consideration of his rehabilitative potential, information concerning these resources would have had minimal value.

We also note the defendant here did not object to the lack of a presentence report at his sentencing hearing. In fact, defense counsel induced the court to proceed without a report after the court indicated it would be necessary to order such a report. The defendant, who is by no means unsophisticated, concurred in the recommendation of counsel with the stipulation that he could present any additional information he might desire. (See People v. Heard (1947), 396 Ill. 215, 219-20, 71 N.E.2d 321, 323 (defendant may not ask court to proceed in a given manner and then assign as error in a court of review the ruling or action which he procured).) While we do not rely on an inducement argument in reaching our decision, we find it worthwhile to note both defendant and counsel recognized no additional, relevant information would be generated by the report and every opportunity was given to defendant to present whatever information he thought relevant.

For the reasons stated above, we find the supreme court has indicated capital cases as a class are taken out of the operation of chapter V. A trial court need not direct preparation of a presentence report in a capital murder case where the defendant is found ineligible for the death sentence and the usual requirements of a sentencing hearing in a capital case are met. The trial court did not err in re-sentencing the defendant on his murder conviction.

The defendant next argues the trial court lacked jurisdiction to sentence him to imprisonment on two crimes for which he was convicted but not sentenced in 1979. At his original trial, the defendant was convicted of three crimes: murder, armed robbery, and aggravated kidnapping. The jury found the defendant eligible for the death sentence, and on June 22, 1979, the presiding judge imposed a death sentence. However, this sentence was imposed only for the murder; no sentence was imposed for the armed robbery and aggravated kidnapping.

Clearly, a trial court does not retain jurisdiction to sentence the defendant indefinitely. Post-trial activity, including imposition of sentence, may not be indefinitely postponed. The question of whether a given period of delay is so unreasonable as to deprive the court of its authority to proceed is dependent in substantial measure upon the circumstances. (People ex rel. Houston v. Frye (1966), 35 Ill. 2d 591, 221 N.E.2d 287.) In People ex rel. Fensky v. Leinecke (1919), 290 Ill. 560, 125 N.E. 513, the supreme court held that once the defendant began serving his sentence the trial court was without jurisdiction to vacate or change the judgment. Under the circumstances here, where the defendant has already been imprisoned for nine years and sentencing on the additional convictions comes long after the original trial, the trial court has no authority to sentence the defendant on the additional charges.

The State maintains, however, the revestment doctrine was sufficient to vest the circuit court with jurisdiction to sentence the defendant on the two additional charges. For the rule of revestment to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. (People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11.) Here, the defendant challenged only the sentence on his murder conviction. The proceedings in this case were conducted pursuant to a mandate for re-sentencing from the Federal district court. While the trial court had jurisdiction to resentence the defendant on his murder conviction, neither the defendant’s appeal of the murder sentence nor the mandate of the Federal court served to revest the court with jurisdiction as to the other charges.

At the resentencing hearing, the circuit court took into account the two prior out-of-State convictions of the defendant in resentencing him on the Illinois convictions. The defendant alleges these prior convictions were obtained in violation of his constitutional rights. He maintains that once he raised this question, the trial court could not take these convictions into account in resentencing unless it further investigated the defendant’s allegations.

The defendant cites numerous Federal court cases generally supporting the proposition that a prior conviction obtained in violation of the defendant’s constitutional rights cannot be used for sentencing. However, in so doing the defendant attempts to leapfrog an important initial step. Before such a claim can be considered, it must be properly initiated in the trial court. Before the defendant can deny the State the opportunity to employ prior convictions, there must be an evidentiary hearing and a determination that the convictions were in fact obtained in violation of the defendant’s rights. The petition must make a showing of a violation of constitutional rights to be entitled to an evidentiary hearing. To accomplish this, allegations in the petition must be supported by the record in the case or by accompanying affidavits. People v. Gaines (1984), 105 Ill. 2d 79, 473 N.E.2d 868.

In this case, the defendant’s allegations were raised in a written in limine motion before the trial court without affidavits or any attempt to substantiate the allegations. The defendant failed to provide the court with any substantial basis on which to proceed in an evidentiary hearing to determine whether the convictions were proper or not. It is the burden of the defendant to provide the trial court with this information, and merely raising the issue without more is insufficient to bring the sentencing process to a halt and require an evidentiary hearing.

Last, defendant argues his sentence for natural life imprisonment on the murder conviction is excessive. Defendant here does not argue the court was unaware of the factors in mitigation of his crime nor does he suggest it failed to take these into account when sentencing him. The record shows the court was cognizant of both the factors in aggravation and mitigation when it sentenced the defendant. As this court has recently held, imposition of sentence is a matter within the purview of the trial court, and its decision is entitled to great deference and weight. A sentence within the statutory range described for the offense will not be disturbed on review absent an abuse of discretion. (People v. Bogan (1989), 185 Ill. App. 3d 129, 540 N.E.2d 1135.) A sentence of natural life imprisonment may be imposed not only where a murder involves torture or the unnecessary infliction of pain, but where a defendant has a history of criminal activity, has acted with premeditation and deliberation, or has displayed a total lack of remorse. (People v. Montague (1989), 182 Ill. App. 3d 737, 538 N.E.2d 669.) The defendant here has completely failed to cite any authority which would require us to find the imposition of a sentence of natural life imprisonment is an abuse of discretion under these facts. In this case, the defendant has a history of criminal activity and by his unwillingness to admit his guilt has displayed a total lack of remorse for his actions. The trial court did not abuse its discretion in sentencing him to natural life.

For the foregoing reasons the defendant’s natural life sentence on the murder conviction is affirmed. The prison sentences imposed for the robbery and aggravated kidnapping convictions are reversed.

Affirmed in part; reversed in part.

SPITZ and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DAVIS, Defendant-Appellant.
    Fourth District
    No. 4—88—0723
    Opinion filed November 9, 1989.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorney’s Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On July 22, 1988, defendant Michael Davis was found guilty by the circuit court of Sangamon County, following a stipulated bench trial, of the offenses of murder and armed robbery. (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), 18—2(a).) He was subsequently sentenced to 20 years’ imprisonment. He now appeals, alleging the court improperly denied his motion to suppress various statements he made to the police. We affirm.

On September 12, 1986, defendant and Rodney Johnson were charged by information with committing the murder and armed robbery of J.S. Defendant gave the police several separate statements concerning his involvement in the offenses. These statements were given on July 30, July 31, August 1, August 15, and August 16, 1986. These statements commenced being entirely exculpatory and concluded with that of August 16 implicating defendant in the crimes. On June 2, 1987, defendant filed a motion seeking to suppress these statements, alleging they were not voluntarily given and that defendant was not properly advised of his Miranda rights. At the conclusion of the hearing, the trial court found the statements were voluntarily given but, finding defendant could not understandably read the written statements he signed, the court suppressed these written statements. The State appealed, and this court determined the written statements were admissible and remanded the case to the trial court. See People v. Davis (1988), 166 Ill. App. 3d 1016, 520 N.E.2d 1220.

Upon remand, the parties agreed to proceed to a stipulated bench trial. Defendant renewed his motion to suppress the statements. The court, relying on its earlier ruling, denied it. After reviewing the stipulated evidence, which is made up in large part of defendant’s statements, the court found defendant guilty. Defendant’s sole allegation is that his motion to suppress was improperly denied.

The State’s evidence at the motion to suppress hearing established that on July 30, 1986, defendant, then 15 years of age, and Rodney Johnson had been apprehended for committing the offense of retail theft. Juvenile detective Daniel Hughes, who had known defendant for some time, was processing paperwork for the prosecutor’s office and was preparing to release defendant when defendant asked if they would let him go in return for some information concerning a murder. Defendant stated he saw a third person kill a “white dude” by striking him in the head with a brick. At that time, Hughes, being unfamiliar with the particulars of the crime, called Detective Don Rolar, the primary investigating officer, to speak with defendant.

Rolar and Hughes viewed defendant strictly as a witness at that time. Therefore, defendant was not read his Miranda rights. Defendant told Rolar and Detective Don Stouffe that he saw the victim come up to Auggie Johnson at a local bar. They left and went to an alley where defendant saw Johnson hit the victim in the head with a brick and take his wallet.

The next morning Rolar and Detective Thomas Mann picked defendant up at his home and brought him to the station to interview him. They had his mother’s permission. Defendant was still perceived as a witness and was not advised of his Miranda rights. The statement given was reduced to writing and signed by defendant. It was a more detailed account of the July 30 statement. The detectives then went to the scene of the crime and discovered defendant could not have viewed the crime from his asserted location.

Therefore, on August 1 at around 10 a.m., Rolar, Mann, and juvenile detective Tom Marvel brought defendant to the station for another interview. This time, defendant was read his Miranda rights. As each one was read, he was asked if he understood it, and he responded affirmatively. He then agreed to talk to them. Defendant repeated his earlier statement and was released. At this time, the detectives began viewing defendant as a suspect.

Around 4 p.m. that day, defendant was brought to the jail by Rodney Johnson at the behest of the police. Defendant was also accompanied by his stepfather, Gary Jackson. After they explained a discrepancy between his statement and the crime scene, defendant explained he had “snuck up” the alley and was in a different position when he viewed the crime. This conversation lasted two hours.

On August 15, Rolar and Mann took defendant, with his mother’s permission, to a polygraph examination. After the examination, they took him to the station. On the way, he was advised of his Miranda rights, which defendant waived. Juvenile detective Frank Kress joined them at the station. Defendant was confronted with the polygraph result and the discrepancies in his statements. He asked if they could promise him anything. He then wanted assurance that if he was only a witness rather than a participant, he would not be prosecuted. He was taken to speak with an assistant State’s Attorney and told that if he was only a witness, he would not be punished but, if he was a participant, he would be. Defendant then gave a statement to the effect that he saw Rodney Johnson kill the victim with the brick. The police then interviewed Johnson, who implicated defendant.

Accordingly, defendant was reinterviewed on August 16 in the presence of Kolar, Mann, and juvenile detective Ralph Harris. Again, defendant was advised of and waived his Miranda rights. This interview lasted two to three hours. Defendant admitted going up to the victim with Johnson and taking the victim’s wallet, but insisted that Johnson struck the victim with the brick. They then fled with the wallet.

All the police testified defendant was not threatened, physically abused, or promised anything for his statements. It also appeared to Kolar that defendant understood what was happening at each interview.

Defendant presented evidence from his teacher at the detention center, the behavior disorder research teacher at the high school, and the school psychologist. This established that in 1986, the results of the Gates-McGinitie Achievement Test showed defendant’s reading comprehension and job vocabulary were mid-first to second-grade, eighth-month, level. Defendant’s full scale IQ was 61. Defendant was classified as behaviorally disordered and educably mentally handicapped.

One teacher observed that defendant was capable of carrying on a normal conversation with her, and she did not observe him having trouble communicating with anyone else. The other noticed that defendant could relate events that occurred to him outside school in an understandable fashion.

Defendant’s stepfather, Gary Jackson, testified that when he came with defendant to the police station, defendant stated that he was helping police with the investigation into this crime. Jackson encouraged defendant to be as helpful to the police as possible.

Defendant testified that after his polygraph examination on August 15, the police told him he failed and was being taken to the police station. At no time during that trip was he advised of his Miranda rights. He also did not believe he could leave at any time he wanted. Further, he was not advised of his Miranda rights on August 16.

Defendant acknowledged being given the Miranda warnings in his other dealings with the police. He also explained that he understood what those rights are.

The trial court found the statements were voluntarily made. It found defendant was advised of his Miranda rights when it was required, and he knowingly waived them. It also found that the Miranda warnings were not required to be given on any day prior to August 16 since defendant was not in custody.

Initially, defendant, observing that Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, applies to exculpatory as well as inculpatory statements (see People v. Holmes (1977), 53 Ill. App. 3d 856, 861, 368 N.E.2d 1329, 1333), argues the statements of July 30 and 31 should have been inadmissible since he was not advised of his Miranda rights prior to making the statements.

The rule of Miranda requires the suppression of statements made by a defendant in response to custodial police interrogation unless they are preceded by a statement of basic constitutional rights and a waiver of those rights. (People v. Newsome (1983), 117 Ill. App. 3d 1005, 1007, 454 N.E.2d 353, 355.) Only statements made as a result of a custodial interrogation must be preceded by Miranda warnings. People v. Romano (1985), 139 Ill. App. 3d 999, 1009, 487 N.E.2d 785, 792; Newsome, 117 Ill. App. 3d at 1007, 454 N.E.2d at 355.

Defendant maintains, concerning the July 30 statement, that he was in custody on the retail theft charge at the time of the interrogation, and he was, therefore, entitled to those warnings. (See Mathis v. United States (1968), 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503.) However, the evidence establishes otherwise. Defendant and Johnson were in the process of being released when they offered to speak of the crime. By the time defendant spoke with Kolar, the paperwork was completed and the juvenile authorities released him to go home.

Defendant next contends that on both July 30 and July 31, he was in custody for Miranda purposes. The test laid down in Miranda to determine if a suspect must be advised of his rights is whether the person is in custody or otherwise deprived of his freedom in a significant way. (People v. Wipfler (1977), 68 Ill. 2d 158, 168, 368 N.E.2d 870, 874; Newsome, 117 Ill. App. 3d at 1007, 454 N.E.2d at 355.) In considering whether a suspect is in custody, several factors are relevant, including: (1) the place of the interrogation; (2) any statement or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the police officers and the focus of their investigation; (4) the intentions of the police; and (5) the objective circumstances surrounding the investigation to determine what a reasonable man innocent of any crime would perceive. Romano, 139 Ill. App. 3d at 1009, 487 N.E.2d at 792; People v. Berry (1984), 123 Ill. App. 3d 1042, 1046, 463 N.E.2d 1044, 1048.

In applying these factors, it is evident defendant was not in custody. Defendant originally broached the subject, indicating he was a witness to the crime. Both times he was interviewed as a witness. On July 30, it was superficially and, on July 31, it was done in greater detail. At this time, the police had no reason to think of defendant as a suspect. Defendant was free to leave at any time. Admittedly, the conversations took place at the police station, but this factor alone does not make this a custodial situation. A reasonably innocent person in similar circumstances would not have considered himself in custody.

Defendant makes a similar argument concerning his second interview on August 1, noting he was not given the Miranda warnings. Again, this argument must fail. Defendant was still being viewed as a witness by the police. In fact, they did not go get him but asked Johnson to tell defendant to come in. Defendant came voluntarily with his stepfather. Stepfather testified that defendant told him defendant was helping the police with the crime. A reasonable person would not believe he was in custody, and no warnings were required.

The fact defendant was advised of these rights prior to the earlier August 1 interview does not affect this determination (see Wipfler, 68 Ill. 2d at 170-71, 368 N.E.2d at 875), nor does the fact the police had become suspicious of defendant due to the inconsistencies in his statements. The United States Supreme Court, when confronted with a situation where a defendant’s freedom to depart at the time of the statement was not restricted, he appeared voluntarily and he knew he was not under arrest, stated:

“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that [emphasis in original] sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” (Emphasis added unless otherwise noted.) Oregon v. Mathiason (1977), 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719, 97 S. Ct. 711, 714.

Defendant next argues the statements of August 1, 15, and 16 should be suppressed since the State failed to establish they were given voluntarily.

The test to determine if a statement or confession is voluntary is whether it was made freely, voluntarily, without compulsion or inducement, and whether the accused’s will was overborne at the time he confessed. (People v. Hester (1968), 39 Ill. 2d 489, 497, 237 N.E.2d 466, 472-73; In re T.S. (1986), 151 Ill. App. 3d 344, 350, 502 N.E.2d 761, 765.) This determination is based on the totality of the circumstances. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606.) Consideration must be given to both the characteristics of the accused and the details of the interrogation. (People v. Simmons (1975), 60 Ill. 2d 173, 179, 326 N.E.2d 383, 386.) Factors to be considered include the age, education, and intelligence of the accused, the duration of the questioning, any police deception, and whether he received his constitutional rights. (In re T.S., 151 Ill. App. 3d at 350, 502 N.E.2d at 765.) Also considered are the accused’s mental capacity, emotional characteristics, and experience in criminal matters. (Hester, 39 Ill. 2d at 497, 237 N.E.2d at 473.) The trial court, in making its determination, need not be convinced beyond a reasonable doubt. (Prim, 53 Ill. 2d at 70, 289 N.E.2d at 606.) The court’s finding that a statement is voluntary will not be reversed unless it is against the manifest weight of the evidence. People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234; Wipfler, 68 Ill. 2d at 172, 368 N.E.2d at 875-76.

We have no such difficulty with the present case. The evidence establishes, despite defendant’s testimony to the contrary, that defendant was advised of his Miranda rights prior to each questioning. It further established that defendant understood these rights. Defendant acknowledged on the stand that he understood what the rights meant. Finally, the evidence shows he knowingly waived these rights.

Defendant insists that his low intellectual level requires a finding that the statements were involuntary. While mental subnormality is a factor to be considered, it does not ipso facto make a confession involuntary. (Hester, 39 Ill. 2d at 500, 237 N.E.2d at 474.) Here, the police testified defendant understood what was transpiring and was communicative with them. Defendant’s teachers observed that, while his academic functioning was low, he was able to communicate better about events that involved him than academic or hypothetical situations. The evidence also establishes that defendant was familiar with the criminal justice system. In fact, he understood well enough to initiate bargaining with the police on July 30, and then to inquire as to the possible penalties if he was only a witness. Finally, the court had a chance to observe defendant testifying, and found that he was able to respond directly and appropriately to questioning, which is recognized as an important factor in determining whether defendant’s mentality impaired his ability to understand and waive his constitutional rights. See People v. Padilla (1979), 70 Ill. App. 3d 406, 411, 387 N.E.2d 985, 988-89.

Defendant maintains the police misled him by explaining if he was only a witness, he would not be prosecuted, and by not telling him he could be prosecuted as an adult. However, a defendant’s confession is not rendered involuntary because he may not have understood the principles of criminal accountability and the implications of the acts admitted. (Martin, 102 Ill. 2d at 427, 466 N.E.2d at 235.) Similarly, the circumstance that an accused is a juvenile does not require that he be advised he may be prosecuted as an adult before he may knowingly waive his right to remain silent. People v. Prude (1977), 66 Ill. 2d 470, 476, 363 N.E.2d 371, 373.

We recognize that special care must be taken when determining the voluntariness of a minor’s waiver of rights. (See Wipfler, 68 Ill. 2d at 171, 368 N.E.2d at 875.) In the case at bar, the court reviewed in great detail the appropriate factors and rendered a well-reasoned decision. The record establishes this determination was not against the manifest weight of the evidence.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re MARRIAGE OF CHARLES STONE, Petitioner-Appellant, and REBECCA STONE, Respondent-Appellee.
    Fourth District
    No. 4—89—0382
    Opinion filed November 30, 1989.
    Brown, Hay & Stephens, of Springfield (Almon A. Manson, Jr., of counsel), for appellant.

      James Alexander Pappas, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Petitioner, Charles Stone (Charles), appeals a modification of the judgment of dissolution of his marriage to Rebecca Stone (Rebecca). That modification increased his child support payments. Charles contends that there was no substantial change in his circumstances warranting the increase in his payments. We disagree with that argument, but conclude that the court erred in determining Charles’ net income for purposes of determining a new support order.

At the hearing on Rebecca’s motion to modify child support payments, the evidence revealed that Charles’ net income increased from $10,775.93 in 1985, the year of the divorce, to $14,257.09 in 1988. Rebecca’s net income also increased during this period from $9,522.28 to $16,996.08.

Rebecca testified that the costs associated with caring for Marissa, the minor child born during the marriage, had increased from 1985 to 1988. Rebecca estimated that monthly 1988 expenditures for food for Marissa were $133, a sum greater than the food expenses incurred in 1985 when the child was IV2 and consumed less expensive meals. Rebecca also testified that clothing expenses had similarly increased during this three-year period. Rebecca claimed to have spent between $600 and $750 on Marissa’s clothing in 1988.

At the time of the hearing, Marissa attended a half-day of preschool, which cost $50 per month, and stayed with a babysitter for the other half of the day, who charged $40 per week. Rebecca attributed $40 of her utility bill to her child and testified that her rental payment had increased by $25 since 1986.

The trial court concluded that Rebecca was entitled to an increase in child support. Citing (1) the increase in the amount and types of food Marissa was consuming, (2) the costs of clothing and preschool tuition, both of which were nonexistent at the time of the divorce, and (3) Charles’ salary increase, the court ordered the amount of child support to be increased by $71 per month, thereby requiring Charles to pay $196 per month in child support.

Under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act), a modification of child support may be made only upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1985, ch. 40, par. 510(a); Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 801, 508 N.E.2d 531, 533.) In determining whether there is sufficient cause to modify, the court may consider both the circumstances of the parents and the circumstances of the child. (In re Marriage of Wettstein (1987), 160 Ill. App. 3d 554, 561, 514 N.E.2d 783, 787, appeal denied (1988), 118 Ill. 2d 544, 520 N.E.2d 394.) If the court determines that a substantial change in circumstances has occurred, then the court should determine the amount of child support to be paid. In doing so, the court should follow the statutory guidelines set forth in section 505 of the Act, including those provisions for determining the noncustodial parent’s “net income” under section 505(a)(3) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3)).

The modification of child support payments lies within the sound discretion of the trial court and, absent abuse of discretion, will not be disturbed on appeal. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.

The circumstances of the instant case show that the trial court did not abuse its discretion when it increased Charles’ child support payments. Charles’ salary increased by 32% during the relevant three-year period. This is a factor favoring an increase in child support payments. (In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 73, 441 N.E.2d 1221, 1229.) The increase in the child’s expenses since the divorce should also be considered. In Fedun, this court determined that the twofold increase in the costs of raising a child showed a substantial change in circumstances. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) Other courts have presumed that the needs of a child have escalated simply because he has grown older and the cost of living has increased. Swanson v. Swanson (1977), 51 Ill. App. 3d 999, 1001, 367 N.E.2d 512, 513.

The testimony in this case demonstrates the increased cost of raising Marissa. The evidence presented regarding Marissa’s food, clothing, baby-sitting, and preschool expenses provides sufficient grounds for the trial court’s modification of Charles’ child support obligation.

Charles further contends that the trial court erred in calculating his net income. Section 505(a)(3) of the Act defines “net income” as all income from all sources minus certain deductions, one of which is dependent and individual health-hospitalization insurance premiums (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3)(f)). Specifically, Charles argues that under section 505(a)(3)(f), the court should have deducted the total cost of his health insurance, $1,969.82, from his income. The health insurance benefitted Charles, his present wife, and his dependents, as well as Marissa. The court disagreed with Charles, relying upon section 505(a)(4) of the Act, which states:

“(4) In cases where health/hospitalization insurance coverage is not being furnished to a child to be covered by the support order, the court may order the party from whom support is sought to provide such coverage when a child can be added to an existing insurance policy at reasonable cost. Net income shall be reduced by the cost thereof in determining the minimum amount of support to be ordered.” (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)(4).)

The trial court determined that it would

“read [section] 505(a)(3)(f) in conjunction with [section] 505(a)(4) and [make] a determination that perhaps what they’re talking about is the amount that they’re actually allocating to the child since that’s specifically what they did under (a)(4) when you didn’t have insurance.”

Accordingly, the trial court gave Charles a deduction of only $984.91, half the amount he was paying for health-hositalization insurance, in calculating his net income for the purpose of setting his child support obligation. The court determined that only $984.91 of the $1,969.82 Charles was paying for health-hospitalization insurance benefitted Marissa. The court ordered that no credit was to be given to Charles for sums paid by him for the health-hospitalization insurance for himself and his current dependents.

The trial court incorrectly construed the relevant provisions of section 505. The language of section 505(a)(3)(f) should not have been read in conjunction with section 505(a)(4). Section 505(a)(3)(f) is clear on its face and does not indicate that only the child’s share of the insurance premiums should be deducted. Instead, the statute allows for the deduction of all “health/hospitalization insurance premiums.” As a result of this incorrect calculation, Charles’ child support obligation was set $16 per month higher than it should have been.

Additionally, we note that section 505(a)(4) (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(4)) is inapplicable to the present case. That section addresses the situation where health insurance is not being provided to the child. However, in this case Charles has already included Marissa under his health insurance coverage.

Accordingly, we affirm the trial court’s judgment modifying Charles’ support order, but reverse its determination of the sum Charles is to pay; we remand this cause with directions that the trial court enter an amended order to reflect a child support obligation for Charles of $180 per month.

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

McCULLOUGH, P.J., and SPITZ, J., concur.


text:
    BOATMEN’S BANK OF CAPE GIRARDEAU, Plaintiff-Appellant, v. STANLEY N. ADAMS, JR., Defendant-Appellee.—BOATMEN’S BANK OF CAPE GIRARDEAU, Plaintiff, v. STANLEY N. ADAMS, JR., Defendant and Third-Party Plaintiff-Appellant (Sieben, Inc., d/b/a Plaza Motor Company, et al., Third-Party Defendants-Appellees).
    Fourth District
    Nos. 4—89—0009, 4—89—0036 cons.
    Opinion filed November 30, 1989.

      Jeffry P. Hine, of Oliver, Oliver, Waltz & Cook, P.C., of Cape Girardeau, Missouri, for appellant Boatmen’s Bank of Cape Girardeau and appellee Roger D. Davault.
    Alex M. Kanter, of Herzog, Ahlquist, Kanter & Hoffert, of St. Louis, Missouri, for appellee Sieben, Inc.

      James M. Drake, of Holley, Keith & Huntley, of Springfield, for Stanley N. Adams, Jr.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, a Missouri bank, filed a replevin action in Sangamon County to recover a car to which it has title and a perfected security interest. Plaintiff loaned money to Roger Davault (Davault) to purchase the car. Six months later he returned the car to the dealer (Sieben, Inc., d/b/a Plaza Motors) for repair and resale. Michael Sheahan (Sheahan), a salesman for Plaza Motors, purchased the car. The check he gave Davault, payable to plaintiff and Davault, was not honored. In the interim, Sheahan sold the car to Springfield, Illinois, resident John Taylor (Taylor), who then sold it to defendant Stanley Adams (Adams). Title to the car remained with the bank. Adams filed a third-party complaint against Sieben, Inc., and Davault. The circuit court dismissed the third-party defendants and denied plaintiff's replevin complaint. Plaintiff appealed the denial of its replevin complaint (appeal No. 4—89—0009), and Adams appealed the dismissal of the third-party complaint (appeal No. 4—89—0036). The cases were consolidated on appeal, and both are presented here. We reverse the decision of the circuit court denying plaintiff’s replevin complaint and affirm the decision dismissing the third-party complaint.

Plaintiff is a Missouri banking corporation with its principal place of business in Cape Girardeau, Missouri. Plaintiff loaned $29,711.22 to Davault to purchase a 1981 Porsche automobile. Davault, a resident of Bollinger County, Missouri, signed an installment note and security agreement. He purchased the car on January 12, 1985, from Plaza Motor Company in Creve Coeur, Missouri. Plaintiff acquired a first lien on the car as collateral for the loan, pursuant to the security agreement executed by Davault. Plaintiff perfected its lien by sending the title application and various other documents to the Missouri Department of Revenue, the State agency responsible for licensing and lien perfection. The Department of Revenue issued a certificate of title in Roger D. Davault’s name with plaintiff as lienholder.

In September 1985, Davault took the car to Plaza Motors for repair and resale. Sheahan, a resident of St. Louis County, Missouri, stated Davault inquired about trading the car to Plaza Motors for another car. Sheahan could not locate the car Davault wanted, and Plaza Motors was not interested in purchasing the Porsche. Sheahan offered to arrange a sale of the car to Taylor. Sheahan claims he told Davault the sale would be through him and not through Plaza Motors. Davault consented, and Sheahan wrote a personal check for $22,000 payable to Davault and plaintiff. He advised Davault not to cash the check until he (Sheahan) received money from Taylor. Davault offered the title to Sheahan, who refused to accept it. Davault denied, in his deposition, ever having title to the car.

Davault took the check from Sheahan to plaintiff to pay his loan. Plaintiff sent the check, drawn on First Missouri Bank, to that bank for collection. Plaintiff attached the car’s title to the check and signed the release section on the certificate of title.

First Missouri Bank refused to pay the check because Sheahan’s account contained insufficient funds. First Missouri Bank returned the check and title to plaintiff. Plaintiff never received $22,000 from Sheahan, and Davault defaulted on the loan. Although given opportunities to cure the default, Davault never did so, and plaintiff accelerated the loan. The amount due is now $13,147.54.

Sheahan contacted Taylor, a resident of Springfield, Illinois, and offered to sell him the car. Taylor testified Sheahan told him he was purchasing the car from an individual in Missouri. Sheahan claims he specifically told Taylor he was acting in his individual capacity in buying and selling the Porsche and not as an agent of Plaza Motors. Taylor paid Sheahan $23,000 for the car. Sheahan delivered the car to him in Springfield and Taylor drove it for approximately one week. On cross-examination, Taylor admitted the car had Missouri license plates when delivered to him. He also admitted he knew at the time that obtaining title to a car is essential to ownership, and he never received title. He claimed he and Sheahan were waiting on the title to “catch up” to the car. While cleaning the car, he found documents in the glove compartment bearing Davault’s name, but assumed Davault was a previous owner. He never had any contact with plaintiff or Davault.

One week after receiving the car, Taylor sold it to defendant, a resident of Springfield, Illinois, for $23,000. Defendant purchased the car with the Missouri license plates on it and never received title from Taylor. Taylor testified he told defendant he (Taylor) did not have title to the car at the time of the sale, and defendant corroborated Taylor’s testimony. Defendant testified Taylor showed him the papers bearing Davault’s name found in. the car’s glove compartment. Defendant is now in possession of the car and maintains insurance on it. The car still has Missouri license plates, never transferred to defendant’s name.

In an affidavit dated August 11, 1987, almost one year before the above deposition testimony was taken, defendant stated he believed the car was being sold by Plaza Motors. He believed Sheahan acted as an agent of Plaza Motors in selling the car and that Plaza Motors had given him authority to sell it.

Plaintiff filed a replevin action against defendant on August 4, 1986, in Sangamon County circuit court. Plaintiff sought possession of the car or its value, $26,000, damages of $1,500, and costs of the lawsuit. On May 1, 1987, defendant moved to dismiss plaintiff’s complaint and filed a third-party complaint against Sieben, Inc., d/b/a Plaza Motors, and Davault. Defendant sought relief in the event he was held liable to plaintiff. Defendant sought $23,000, the value of the car, damages of $5,000 and costs of the lawsuit from Sieben, Inc., and from Roger Davault. Davault entered a special appearance on June 11, 1987, and moved to dismiss the third-party complaint for lack of jurisdiction and to quash service of process under the entry of special appearance. Sieben, Inc., entered a special appearance on July 6, 1987, challenging the court’s jurisdiction.

The third-party defendants were dismissed on August 27, 1987. The court denied defendant’s motion to dismiss plaintiff’s complaint. On June 7, 1988, plaintiff moved to amend its complaint by interlineation, claiming damages of $10,000.

The circuit court conducted a hearing on the matter on July 1, 1988, After another hearing on September 15, the court ordered a docket entry denying plaintiff’s complaint for replevin on the ground plaintiff failed to establish a prima facie case. Plaintiff moved for modification of the judgment or for a new trial but the court denied the motion. Plaintiff appeals.

We consider first the issues raised in the replevin action, appeal No. 4—89—0009. Initially, we must decide whether Illinois or Missouri law applies.

Missouri and Illinois have adopted the Restatement (Second) of Conflict of Laws (1969) (Restatement). (Kennedy v. Dixon (Mo. 1969), 439 S.W.2d 173; Ingersoll v. Klein (1970), 46 Ill. 2d 42, 262 N.E.2d 593.) The Restatement, section 6, directs the forum State to apply its laws to resolve choice of law issues. The applicable Illinois statute in this case is section 9—103(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 9—103(2)), which reads in pertinent part:

“(a) This subsection applies to goods covered by a certificate of title issued under a statute of this State or of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection.
(b) Except as otherwise provided in this subsection, perfection and the effect of perfection or non-perfection of the security interest are governed by the law (including the conflict of laws rules) of the jurisdiction issuing the certificate until 4 months after the goods are removed from that jurisdiction and thereafter until the goods are registered in another jurisdiction, but in any event not beyond surrender of the certificate. After the expiration of that period, the goods are not covered by the certificate of title within the meaning of this Section.”

The statute is applicable because plaintiff perfected its security interest in the car according to Missouri law, which provides the interest is perfected when recorded on the certificate of title.

“A lien or encumbrance on a motor vehicle or trailer is perfected by the delivery to the director of revenue of the existing certificate of ownership, if any, an application for a certificate of ownership containing the name and address of the lienholder and the date of his security agreement, and the required certificate of ownership fee. It is perfected as of the time of its creation if the delivery of the aforesaid to the director of revenue is completed within thirty days thereafter, otherwise as of the time of the delivery.” Mo. Ann. Stat. §301.600(2), at 204 (Vernon 1972).

The Illinois statute orders application of the whole law of Missouri as it authorizes application of Missouri’s conflict of laws rules. The next question is whether Missouri’s conflict of laws rules send the case back to Illinois. Sections 244 and 248 of the Restatement are relevant in answering this question. Sections 244 states:

“(1) The validity and effect of a conveyance of an interest in a chattel as between the parties to the conveyance are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the parties, the chattel and the conveyance under the principles stated in §6.
(2) In the absence of an effective choice of law by the parties, greater weight will usually be given to the location of the chattel, or group of chattels, at the time of the conveyance than to any other contact in determining the state of the applicable law.” (Restatement (Second) Conflict of Laws §244, at 67 (1969).)

Section 248 provides:

“(1) Whether the title to a chattel is embodied in a document is determined by the local law of the state where the chattel was at the time the document was issued.
(2) As between persons who are not both parties to the conveyance:
(a) the effect of a conveyance of an interest in a chattel, title to which is embodied in a validly transferred document, is determined by the law that would be applied by the courts of the state where the chattel was at the time of the conveyance;
(b) the effect of a conveyance of an interest in a document, in which title to a chattel is embodied, is determined by the law that would be applied by the courts of the state where the document was at the time of the conveyance. These courts would usually apply their own local law in determining such questions.” (Restatement (Second) Conflict of Laws §248, at 83-84 (1969).)

Section 244 requires an examination of the contacts each State has with the parties, the car, and its transfer.

Illinois has the following contacts: the defendant resides in Illinois, the car is in Illinois, and it is the forum State. Plaintiff argues Missouri has the most significant relationship as it has the following contacts: plaintiff is a Missouri corporation doing business in Missouri, the legal owner of the car is a Missouri resident, the car is registered in Missouri, plaintiff perfected the security interest in Missouri and holds the lien there. An additional argument favoring application of Missouri law is that State’s interest in protecting its residents holding valid liens perfected in Missouri. Section 248 of the Restatement indicates Missouri law applies as title to the car is embodied in a document, the certificate of title, and the car was in Missouri when the certificate was issued.

We conclude Missouri law applies in plaintiff’s replevin action and turn now to the second issue plaintiff raises on appeal, whether the circuit court erred in denying the replevin complaint.

The Missouri replevin statute states:

“If the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterward, before the rendition of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, showing:
(1) That the plaintiff is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to the possession thereof;
(2) That it is wrongfully detained by the defendant;
(3) The actual value thereof;
(4) That the same has not been seized under any process, execution or attachment against the property of the plaintiff; and
(5) That plaintiff will be in danger of losing his said property, unless it be taken out of the possession of the defendant, or otherwise secured.” Mo. Ann. Stat. §533.010, at 407 (Vernon 1972).

Missouri case law indicates replevin “is primarily an action to determine the right of possession [citations], not to try title or the right of property.” (M.F.A. Cooperative Association v. Murray (Mo. App. 1963), 365 S.W.2d 279, 285.)

“It is incumbent upon a plaintiff in replevin to plead and prove his right to immediate possession of the property at the time the suit was filed and that the defendant was wrongfully detaining it. [Citations.] And while proof of title to or ownership of property is not an inherent element of an action in replevin, title or ownership may become involved incidentally as it may tend to show right of possession. ***
We are further cognizant that as a general rule a plaintiff in replevin must prove that the property sought to be replevined was in possession of the defendant at the time the suit was commenced.” (Fawley v. Bailey (Mo. App. 1974), 512 S.W.2d 477, 479.)

Missouri courts require plaintiff to “stand on the strength of its own title in [a] replevin action and [plaintiff] cannot recover on the weakness of defendant’s title.” Bordman Investment Co. v. Peoples Bank (Mo. App. 1958), 320 S.W.2d 72, 75.

Success in its replevin action, under Missouri law, required plaintiff to plead and prove a right to immediate possession of the car, the car was in defendant’s possession, and defendant wrongfully detained it. Plaintiff’s complaint met the pleading requirement. The next question is whether plaintiff proved its right to possession of the car.

Plaintiff argues it is entitled to possession of the car because it holds a valid lien on the vehicle which has never been released. Plaintiff admits, however, that a bank employee did sign the release portion of the certificate of title before it was sent, with Sheahan’s check, to First Missouri Bank for collection. Plaintiff argues this was a conditional release, contingent on payment of the check by First Missouri Bank. First Missouri Bank returned the check and the title to plaintiff because Sheahan’s account contained insufficient funds.

A lien on a motor vehicle is released in Missouri when it has been satisfied.

“Upon the satisfaction of a lien or encumbrance in a motor vehicle or trailer for which the certificate of ownership is in the possession of the lienholder, he shall, within ten days after demand and, in any event, within thirty days, execute a release of his lien or encumbrance, and mail or deliver the certificate and release to the next lienholder named therein, or, if none, to the owner or any person who delivers to the lienholder an authorization from the owner to receive the certificate. The owner may cause the certificate and release to be mailed or delivered to the director of revenue, who shall release the lienholder’s rights on the certificate or issue a new certificate.” (Mo. Ann. Stat. §301.640(1), at 209 (Vernon 1972).)

This appears to be the sole method for releasing a lien on a motor vehicle in Missouri. Because First Missouri Bank did not honor Sheahan’s check, it returned the certificate of title to plaintiff. The lien was never satisfied and thus was never released.

Next plaintiff must show defendant is wrongfully detaining the car. Under Missouri law the sale of the car to defendant was null and void and thus he acquired no interest in it.

“It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.” (Mo. Ann. Stat. §301.210(4), at 48 (Vernon Supp. 1989).)

Missouri courts have held this statute must be strictly enforced.

“ ‘The provisions of the statute that the sale of any motor vehicle which has been registered under the laws of this state without the assignment of the certificate of ownership shall be fraudulent and void is absolute, mandatory and both rigidly and technically enforced.’ *** The reasons [for strict enforcement] are: to prevent traffic in stolen automobiles; to aid in the apprehension of criminals; and to protect the innocent and guileless from the machinations and wiles of the wicked.” (Bonnell v. Mahaffey (Mo. App. 1973), 493 S.W.2d 688, 690-91.)

(See also Albright v. Uhlig (Mo. App. 1958), 315 S.W.2d 471, 475; Horton v. State Farm Fire & Casualty Co. (Mo. App. 1977), 550 S.W.2d 806, 809; Executive Jet Management & Pilot Service, Inc. v. Scott (Mo. App. 1981), 629 S.W.2d 598, 613.) “Failure to strictly comply with the statute means no title passes and the purported buyer has no ownership. [Citations.] This is true, painful as it may be, even where the buyer was guilty of no intentional wrongdoing, i.e., has acted in good faith.” Horton, 550 S.W.2d at 809.

Plaintiff never released its lien on the car, and the sales transaction through which defendant received the car was fraudulent and void under Missouri law. Defendant is wrongfully detaining the car.

Plaintiff has pleaded and proved the elements necessary to succeed in a replevin action under Missouri law. The decision of the circuit court of Sangamon County dismissing plaintiff’s replevin action is reversed.

We now turn to appeal No. 4—89—0036, the dismissal of the third-party complaint. The only issue defendant raises on appeal is whether the circuit court erred in dismissing his third-party complaint for lack of jurisdiction under the Illinois long-arm statute (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(a)(1)).

The burden on the party asserting jurisdiction under the long-arm statute is to make a prima facie showing that jurisdiction exists under the statute. (Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 612, 498 N.E.2d 708, 710; see also Loos v. American Energy Savers, Inc. (1988), 168 Ill. App. 3d 558, 561, 522 N.E.2d 841, 843; Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 247, 421 N.E.2d 231, 235.) On review, the appellate court must determine whether defendant met his burden of proof. (Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc. (1985), 136 Ill. App. 3d 1084, 1089, 483 N.E.2d 1291, 1294.) Adams must show: “(1) that defendants transacted business in Illinois, (2) that [the] cause of action arose from this transaction of business and (3) that personal jurisdiction [is] consistent with due process.” Mandalay Associates Limited Partnership v. Hoffman (1986), 141 Ill. App. 3d 891, 894, 491 N.E.2d 39, 42.

Under the long-arm statute a single act may constitute a business transaction for purposes of the statute. (Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 833, 474 N.E.2d 1297, 1303.) “The provision requires essentially that the plaintiff’s claim lie ‘in the wake of the commercial activities by which [the] defendant [allegedly] submitted to the jurisdiction of Illinois courts.’ ” Financial Management Services, Inc., 130 Ill. App. 3d at 833, 474 N.E.2d at 1303, quoting Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 557, 447 N.E.2d 919; see also People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 597, 461 N.E.2d 658, 664.

“In assessing a nonresident’s contacts with this State, ‘[o]nly the acts of defendant can be considered in determining whether business was transacted in Illinois.’ (Unarco Industries, Inc. v. Frederick Manufacturing Co. (1982), 109 Ill. App. 3d 189, 192, 440 N.E.2d 360, 362; see City of East Moline v. Bracke, Hayes & Miller (1985), 133 Ill. App. 3d 136, 140, 478 N.E.2d 637, 640; Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 742, 371 N.E.2d 161, 164.) The determination of whether defendant sufficiently transacted business in Illinois so as to avail himself of the benefits of Illinois law requires consideration of several factors: who initiated the transaction (Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 371 N.E.2d 161); where the contract was entered into (Servo Instruments, Inc. v. Fenway Machine Co. (1980), 92 Ill. App. 3d 509, 415 N.E.2d 34); and where the performance of the contract was to take place (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131). While none of these factors has been held to be controlling, each of them has been held to be significant. See Empress International, Ltd. v. Riverside Seafoods, Inc. (1983), 112 Ill. App. 3d 149, 153-54, 445 N.E.2d 371.” Gordon v. Tow (1986), 148 Ill. App. 3d 275, 280-81, 498 N.E.2d 718, 722.

Careful examination of the factors enumerated above and the affidavits filed in this case indicates the Illinois court did not have jurisdiction over the third-party defendants under the long-arm statute. Sieben, Inc., and Davault did not transact business in Illinois.

Defendant purchased the car and took delivery of it in Illinois, but from Illinois resident Taylor, not Sieben, Inc., or Davault. The record does not support defendant’s assertions that Sheahan acted as an agent for Sieben, Inc., or Davault. In short, defendant has not met his burden of proving jurisdiction over Sieben, Inc., and Davault under the long-arm statute. Given our conclusion on this issue, discussion of the parties’ arguments on the effect to be given the various affidavits is unnecessary.

Judgment of the circuit court in appeal No. 4—89—0009 is reversed and remanded; judgment in appeal No. 4—89—0036 is affirmed.

No. 4—89—0009, reversed in part and remanded.

No. 4—89—0036, affirmed.

LUND and STEIGMANN, JJ., concur.