text:
    KATHY PETRAUSKAS, Plaintiff-Appellant, v. WEXENTHALLER REALTY MANAGEMENT, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—2760
    Opinion filed July 28, 1989.

      Stephen E. Vargo, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Steven M. Puiszis, Gregory B. Bolduc, and Robert G. Black, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Kathy Petrauskas, appeals from the dismissal with prejudice of her amended three-count complaint for failure to state a cause of action. We address the issue of whether the allegations of plaintiff’s complaint state a cause of action for negligence, wilful and wanton misconduct, and violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.). We affirm.

The following facts are pertinent to our disposition of this appeal.

Plaintiff filed an amended complaint against defendants, Wexenthaller Realty Management, Inc., and Briar Building Partnership, for injuries she sustained when she was raped in her apartment. In count I for negligence, plaintiff alleged she rented an apartment from defendants for the period of November 15, 1984, through April 30, 1986, in a building located at 540 West Briar Place in Chicago, Illinois. Plaintiff alleged that on August 6, 1985, an individual, who was not a tenant, confronted her in a common hallway on the fourth floor of the building and forced her into her apartment. Inside the apartment, she was raped and beaten.

Plaintiff alleged the individual obtained access into the building as a result of defendants’ negligence. The building had an exterior fire escape with a door at each floor and the base of the fire escape was at ground level. If the fire escape doors were closed, they could not be opened from the outside. The doors led directly into the common hallways of the building. The fourth-floor hallway was not well-lit and “was conducive to harboring trespassers and intruders.” On August 5, 1985, and for an unspecified period of time before that date, defendants tied the fire escape doors at each floor in such a way that they would remain in an open position to ventilate the building. Defendants also left a window open in the laundry room located on the first floor of the building. For an unspecified period of time prior to August 5, 1985, a tenant or tenants of the building complained to defendants that the fire escape doors and the laundry room window were repeatedly left open but should have been kept closed.

Plaintiff alleged that the building was located in a “high crime” area. On information and belief, plaintiff alleged that defendants knew or should have known of an incident one month prior to the attack when a person was fatally shot across the street from the building. Plaintiff also alleged on information and belief that at sometime prior to the attack, an unauthorized person gained access into the building and was escorted from the premises by defendants. Plaintiff did not allege how the person entered the building.

Plaintiff alleged defendants violated sections 39 — 1, 39 — 2, 61— 19, 61-19.1, 78-43, 78-55, 78-59, 78-61, 96-2, and 99-4 of the Municipal Code of Chicago. Chicago Municipal Code §§39 — 1, 39 — 2, 61-19, 61-19.1, 78-43, 78-55, 78-59, 78-61, 96-2, 99-4 (1984).

As a direct and proximate result of defendants’ negligent conduct, plaintiff was physically and mentally injured.

In count II for wilful and wanton misconduct, plaintiff added allegations that defendants acted in reckless disregard for plaintiff’s safety.

In count III, plaintiff alleged defendants violated the Consumer Fraud and Deceptive Business Practices Act when they made certain misrepresentations of material fact to her and concealed material facts from her.

Defendants filed a motion to dismiss the amended complaint for failure to state a cause of action under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615).

At the hearing on the motion, the trial court dismissed counts I and II because plaintiff did not allege facts which would impose a duty on defendants. The court dismissed count III because plaintiff did not sufficiently allege that defendants’ misrepresentations and concealments proximately caused her injury. Plaintiff now appeals.

Opinion

In reviewing the dismissal of an action under section 2 — 615, the court must accept all well-pled facts and reasonable inferences as true and must interpret the allegations of the complaint in a light most favorable to the plaintiff. (Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433.) The dismissal should be affirmed if it appears that no set of facts from the complaint could be proven that would entitle plaintiff to relief. Turner v. Rush Medical College (1989), 182 Ill. App. 3d 448, 537 N.E.2d 890.

To plead a cause of action for negligence or wilful and wanton misconduct, plaintiff must allege sufficient facts to establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358; Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 514 N.E.2d 552.) Whether defendant owed plaintiff a duty of reasonable conduct is a question of law for the court to determine. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) In determining whether a duty exists, reasonable foreseeability of harm is the primary concern but the court must also consider the likelihood of injury, .the magnitude of the burden to guard against the injury, and the consequence of placing the burden on defendant. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.

The Illinois Supreme Court has recently restated the general rule that a landlord does not have a duty to protect tenants from the criminal acts of third persons on the premises. Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.

Initially, in support of counts I and II for negligence and wilful and wanton misconduct, plaintiff argues that defendants’ conduct created or substantially enhanced the risk of criminal activity inside the apartment building, relying on Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038, and Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472. Phillips and Cross state that a landlord who voluntarily assumed a duty to provide security measures will be liable if he performed negligently and the negligence was the proximate cause of plaintiff’s injury. “[T]he duty of care imposed upon a landlord in a voluntary undertaking to provide guard service includes a duty not to create a condition of increased danger to tenants.” (Phillips, 89 Ill. 2d at 129, 431 N.E.2d at 1041 (discussing Cross, 82 Ill. 2d 313, 412 N.E.2d 472).) Neither Phillips nor Cross supports a general duty on the part of a landlord not to create a condition of increased danger. Phillips, 89 Ill. 2d 122, 431 N.E.2d 1038.

In the present case, plaintiff alleged defendants left the fire escape doors and the laundry room window open. These allegations do not reasonably support a theory of liability that defendants voluntarily assumed a duty to provide security measures. Accordingly, the duty not to create a condition of increased danger found in Phillips and Cross is not applicable to the present case.

A landlord may also be held liable for the criminal acts of third persons when he fails to keep the common areas of his building in a reasonably safe condition. (Duncavage, 147 Ill. App. 3d 88, 497 N.E.2d 433.) “Customarily, the landlord’s control of the common areas is associated with the obligation to maintain and repair.” Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 100, 302 N.E.2d 207, 209.

In Duncavage, plaintiff filed an action on behalf of his decedent, who was a tenant in defendant’s apartment building. Plaintiff alleged that a man concealed himself in an unlit area and in the high weeds outside the building. The area was unlit because the lights had either burned out or were inoperable. He chose to enter that, particular building because of its dilapidated condition. The man used a ladder defendant stored in the yard to enter decedent’s apartment through a window which was incapable of being locked. The man repeatedly raped and sodomized decedent and then killed her. Plaintiff also alleged that, previously, the ladder was used to enter the same window in the same apartment in a burglary. Defendant knew of the burglary from tenant complaints, a personal inspection, and a citation he received from the Department of Inspectional Services of the City of Chicago. Plaintiff also alleged that the building was in violation of several sections of the building code. The trial court dismissed the complaint for failure to state a cause of action. On review, however, the appellate court focused on the allegations that the lights were burned out or inoperable, that the weeds were high enough for a person to hide in, and that the ladder remained accessible in the yard even though the landlord knew it was used in a previous burglary to enter the same apartment through the same unlockable window. The court found that plaintiff alleged sufficient facts to establish “that defendant breached his duty to reasonably maintain areas of the building under his control.” Duncavage, 147 Ill. App. 3d at 96, 497 N.E.2d at 437.

As stated in Duncavage, “[w]hile a landlord is not an insurer and cannot be held liable for harm done by every criminal intruder [citation], prior incidents similar to the one complained of and which are connected with the physical condition of the premises may impose a duty of reasonable care.” (Emphasis added.) (Duncavage, 147 Ill. App. 3d at 97-98, 497 N.E.2d at 438, citing Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47.) The prior criminal activity and the injury to plaintiff need not be of the exact same nature but plaintiff’s injury must have resulted from the same risk as was present in prior incidents of criminal activity. Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.

In the present case, plaintiff alleged that the building was in a “high crime” area and that a person was fatally shot across the street from the building. These allegations of criminal activity have no connection to the building. Plaintiff also alleged that a person gained unauthorized entry into the building and did not allege how the person entered the building and did not allege a connection between the physical condition of the building and the entry.

In contrast to Duncavage and Stribling, plaintiff argues that there is authority for imposing a duty on a landlord when there are no allegations of prior criminal activity, citing Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497, and Mims v. New York Life Insurance Co. (1971), 133 Ill. App. 2d 283, 273 N.E.2d 186.

Neering is clearly inapplicable to plaintiff’s case because it involved what is considered a special relationship between a common carrier and its passenger that gives rise to a duty to protect from criminal activity. (See Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536.) The landlord-tenant relationship is not considered a special relationship where such a duty is imposed. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) Therefore, Neering does not support plaintiff’s position.

Plaintiff also relies on Mims, where a duty was imposed on a landlord although there was no evidence of prior criminal activity on the premises. In Mims, a theft occurred when the landlord inspected plaintiffs’ apartment shortly before they were moving out to determine whether it had been damaged during the lease term. One of the plaintiffs testified that on the day in question she locked her apartment door before she left. When she returned, the door was open and the landlord’s employee was inspecting the apartment. When he left, she noticed some of her property was missing. The employee testified he used a master key to enter the apartment and left the door open during the inspection. After a bench trial, plaintiffs were awarded damages from their landlord. On appeal, the landlord argued that plaintiffs did not prove his negligence was the proximate cause of the loss and that the loss was not foreseeable. The reviewing court, noting that a breach of duty and proximate cause are questions of fact, deferred to the reasonable determination of the trier of fact and would not disturb its finding.

Although plaintiff here relies on Mims to impose a duty on defendants, the landlord in Mims did not directly challenge the issue of whether a duty existed in the first instance. The court noted only generally that a duty of ordinary care is imposed to guard against injury which may be the foreseeable result of one’s act. In light of the general rule that a landlord is not under a duty to protect his tenants from the criminal acts of third parties, it is unclear on what basis a duty was imposed in Mims.

Subsequent decisions have either interpreted the duty in Mims as imposed under a contractual obligation (see Beck v. Rossi Brothers (1984), 125 Ill. App. 3d 874, 466 N.E.2d 1124) or imposed because the landlord acted in an affirmative manner that made it possible for the thief to enter the apartment (see, e.g., Smith, 36 Ill. App. 3d 967, 344 N.E.2d 536). The supreme court recently discussed Mims but only stated that under the facts, the landlord “had a duty to lock the door” to plaintiffs’ apartment. Rowe, 125 Ill. 2d at 225, 530 N.E.2d at 1368.

Plaintiff on appeal appears to argue that Mims is applicable to the present case because defendants acted in an affirmative manner by leaving the fire escape doors and the laundry room window open. Assuming for the purpose of argument that Mims stands for the proposition that a landlord may be liable for his affirmative act that facilitates crime, the decision must be reconciled with Duncavage. The action of the landlord in Duncavage by storing the ladder in the yard can also be viewed as an affirmative act. Yet in Duncavage, unlike Mims, the court focused on the allegations of prior criminal activity in determining that defendant owed plaintiff a duty.

We find that Duncavage is more persuasive to the resolution of the case at bar than Mims. Duncavage involved the review of a motion to dismiss for failure to state a cause of action, as does the present case, and directly confronted the issue of whether defendant owed plaintiff a duty, unlike Mims. Therefore, we will follow the reasoning of Duncavage.

Applying Duncavage to the present case, plaintiff’s allegations do not sufficiently support a finding that defendants owed plaintiff a duty. In Duncavage, a duty was imposed on defendant based, in part, on plaintiff’s allegations that a prior criminal incident occurred which was connected to the condition of the building and involved the same risk. Plaintiff in this case alleged an unauthorized person entered the building but did not allege a connection between the physical condition of the building and the entry. The allegation falls far short of the allegations in Duncavage and Stribling where the courts found that the criminal activities were foreseeable and imposed a duty on the landlords.

In Duncavage, the court also focused on the allegations that the weeds outside the building were high enough for a person to conceal himself and that the area was unlit because the lights were burned out or inoperable. These allegations indicate that defendant did not maintain and repair the common areas of the building as was his duty. (See Trice, 14 Ill. App. 3d 97, 302 N.E.2d 207.) Plaintiff’s allegations in this case do not indicate a failure to maintain and repair as in Duncavage.

In considering whether a duty exists, a court must examine the likelihood of injury, the magnitude of the burden to guard against it, and the consequences of placing that burden on defendant. Here, there may have been some likelihood of injury but it was not reasonably foreseeable. The magnitude of the burden to guard against the injury would have only required defendant to keep the fire escape doors and the laundry room window closed. The cost would have been minimal. However, the consequences of placing that burden on defendants, and others in their position, would be great. To impose a duty in this case would serve to greatly expand the scope of a landlord’s duty almost to the point of abolishing the general rule that a landlord has no duty to protect his tenants from the criminal acts of third persons.

The allegations of plaintiff’s complaint are insufficient to impose a duty of reasonable care on defendants and, therefore, the trial court properly dismissed the negligence and wilful and wanton counts of plaintiffs complaint.

Plaintiff also argues that defendants owe a duty to her based on the alleged violations of several sections of the municipal code. A violation of a city ordinance that is designed for the protection of human life or property is considered prima facie evidence of negligence. (Gula v. Gawel (1966), 71 Ill. App. 2d 174, 218 N.E.2d 42.) The plaintiff must be within the class of persons intended to be protected by the ordinance and the resulting harm must be of the kind that the ordinance was intended to prevent. (Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374.) The building code is a public safety measure and a tenant is within the class of persons to be protected under the code. Gula, 71 Ill. App. 2d 174, 218 N.E.2d 42.

Defendants argue that plaintiffs allegation that they violated certain sections of the ordinance is conclusory and is not supported by specific factual allegations. (See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) We agree with defendants’ position.

We find it necessary to discuss in detail only a few of the ordinance sections cited by plaintiff. Section 78 — 55 requires that “[e]very stairway, inside or outside of the dwelling *** shall be kept in safe condition and sound repair.” Section 61 — 19.1 states that fire escapes must be maintained in “a good and safe condition.” Section 78 — 43 requires that “[e]very public hall *** shall be adequately lighted.” Section 99 — 4 prohibits a building from being “kept, maintained, or operated” in a manner that “shall be the occasion of any nuisance, or shall be dangerous to life or detrimental to health.” Chicago Municipal Code §§61 — 19.1, 78 — 43, 78 — 55, 99 — 4 (1984).

Plaintiff alleged that defendants tied the fire escape doors open, defendants left the laundry room window open, and the fourth-floor hallway was not “well lighted.” These allegations do not support the conclusion that the ordinance sections cited by plaintiff were violated. Keeping the fire escape doors open does not support the conclusion that the stairway was not in “safe condition and sound repair” as required under section 78 — 55 or that the fire escape was not maintained in “good and safe condition” as required under section 61— 19.1. The allegation that the hallway was not “well lighted” does not support the conclusion that the hallway was not adequately lighted as required under section 78 — 43. None of these allegations support the conclusion that the building was a nuisance or “dangerous to life or detrimental to health” as prohibited in section 99 — 4.

Accordingly we find plaintiffs allegations that defendants violated certain sections of the municipal code are conclusory and not supported by facts. Plaintiff has not sufficiently pled a cause of action for negligence based on alleged violations of the municipal code.

Finally, we consider whether the trial court properly dismissed count III of plaintiffs complaint alleging a violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.). Section 2 of the Act states:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” (Ill. Rev. Stat. 1985, ch. 121½, par. 262.)

The Consumer Fraud and Deceptive Business Practices Act has been applied to the landlord-tenant relationships. Duncavage, 147 Ill. App. 3d 88, 497 N.E.2d 433; Carter v. Mueller (1983), 120 Ill. App. 3d 314, 457 N.E.2d 1335.

In count III of her complaint, plaintiff realleged most of the allegations from the negligence and wilful and wanton misconduct counts and added the following allegations. Plaintiff alleged she was a consumer and defendants conducted a trade or commerce within the meaning of the Act. Plaintiff alleged that defendants, in violation of the Act, falsely represented to her that the building was safe, that they would hire a doorman, that none of the fire escapes led to the ground level, and that the fire escape doors would be kept closed. She also alleged defendants did not inform her that the building was located in a high crime area or that the building was in violation of the building code sections previously cited. Plaintiff alleged that the misrepresentations and concealments were made for the purpose of inducing her to become and remain a tenant. She further alleged that as a direct and proximate result of the violations of the Act, she was injured.

Although defendants raise several arguments that count III fails to state a cause of action, we will only review whether the trial court properly found that plaintiff did not adequately allege proximate cause.

A plaintiff can recover damages under the Consumer Fraud and Deceptive Business Practices Act only when his injury is a direct and proximate result of an alleged violation of the Act. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) Where an independent criminal act of a third person intervenes between defendant’s act and plaintiff’s injury, which causes the injury and without which the injury could not have occurred, the criminal act is a superseding cause of the injury relieving defendant of liability. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) However, if the criminal act is reasonably foreseeable at the time of defendant’s act, the causal chain is not necessarily broken. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) The question of whether proximate cause existed is generally one of fact (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203); however, “[a] defendant may escape liability by demonstrating that the intervening event was unforeseeable as a matter of law.” Warren, 142 Ill. App. 3d at 570, 491 N.E.2d at 476.

In count III, plaintiff complains of defendants’ alleged misrepresentations and concealments which occurred when she signed the lease and “on several occasions prior to the incident.” The question is whether the criminal act was reasonably foreseeable at the time defendants made the misrepresentations or concealed information. We find that the criminal act was not reasonably foreseeable as a matter of law. Our analysis of foreseeability concerning counts I and II is applicable here where defendants’ alleged violation of the Act was even further removed. Plaintiff has failed to allege facts that support the element of proximate cause and, therefore, count III was properly dismissed.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY STEWART, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—1485
    Opinion filed July 28, 1989.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Daniel Weiss, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Larry Stewart, and codefendant, Otis McCoy, were charged by indictment with burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1.) Following a joint bench trial, defendant was convicted of burglary, and McCoy was found not guilty. After a hearing in aggravation and mitigation, defendant was sentenced to a term of eight years’ imprisonment. On appeal, defendant contends that the trial court erred in imposing this sentence. For the reasons stated below, we affirm the judgment of the circuit court.

The evidence adduced at trial established that on April 5, 1985, defendant burglarized the home of the complainant, Lee Oliver Neal. Upon finding defendant guilty, the court revoked his bond and ordered a presentence investigation. Although defense counsel stated that he had no objection to proceeding to sentencing with only the pretrial investigation report, the trial court continued the matter until a presentence investigation report could be prepared. The presentence investigation report reflected, inter alia, that defendant had three prior convictions for burglary. For these previous offenses, defendant received a four-year sentence on February 3, 1981, a three-year sentence on October 12, 1982, and another three-year sentence on November 18, 1982. The pretrial investigation report contained defendant’s three prior burglary convictions and the sentences imposed as well as a record of defendant’s adult criminal history. This record reflected the dates of defendant’s arrests and the dates of his previous convictions.

During the sentencing hearing, the prosecutor pointed out defendant’s three prior burglary convictions and argued that defendant’s background required that he be sentenced as a Class X offender. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8).) Defense counsel stated that he knew nothing about defendant’s prior burglary convictions and argued against application of the Class X sentencing provision because defendant had been merely “junking” (removing property from a building he believed to be abandoned) and had not committed “a classic burglary.” Defense counsel acknowledged that defendant’s background was “not the best in the world,” but argued that defendant was “not a violent person” and should not receive a Class X sentence. Defense counsel did not, however, dispute the accuracy or validity of the information contained in the pretrial and presentence investigation reports.

Prior to imposing sentence, the trial judge stated that because defendant’s record included three prior burglaries, the court felt that defendant would continue to commit burglary. Accordingly, after consideration of his notes on the case, the arguments of counsel and the presentence investigation report, the trial judge sentenced defendant to a term of eight years.

Burglary is a Class 2 felony (Ill. Rev. Stat. 1985, ch. 38, par. 19— 1(b)), and the penalty for a Class 2 felony is imprisonment for not less than three years and not more than seven years (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(5)). In certain circumstances, however, a court may impose a greater sentence.

Section 5 — 5—3(c)(8) of the Unified Code of Corrections provides as follows:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(c)(8).)

The penalty for a Class X offense is imprisonment for not less than six years and not more than 30 years. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3).

Section 5 — 5—3.2(b)(1) of the Unified Code of Corrections provides that an extended term may be imposed under the following circumstances:

“When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(1).)

An extended term for a Class 2 felony is not less than seven years and not more than 14 years. Ill. Rev. Stat. 1985, ch. 38, par. 1005— 8 — 2(a)(4).

We initially consider defendant’s assertion that he was improperly sentenced as a Class X offender because the State failed to prove his prior convictions beyond a reasonable doubt. Defendant claims that his sentence should be vacated because the State failed to introduce certified statements of his prior convictions and failed to identify him as the person convicted.

This argument is without merit where defendant did not deny the prior convictions (People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353, cert. denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507; People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792; People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107, appeal denied (1987), 116 Ill. 2d 567), where defendant failed to correct the information contained in the presentence investigation report and did not dispute the report’s accuracy or validity (Morrow v. Dixon (1985), 108 Ill. 2d 223, 483 N.E.2d 876; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9) and, more significantly, where defense counsel specifically stated defendant was willing to proceed to sentencing with only the pretrial investigation report which included the information on defendant’s prior convictions and sentences. The trial court did not rely on the pretrial report but instead ordered a presentence report which contained the same information of prior convictions and sentences.

Although People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142, was not cited in his brief, defendant relied on this case at oral argument to support his claim that the State had not sufficiently identified him as the person convicted of the three prior burglaries. We note that the Langdon decision was premised upon the holding in People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812, which was rejected by the supreme court in People v. Davis (1983), 95 Ill. 2d 1, 31, 447 N.E.2d 353, 367-68, cert. denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507, and in People v. Davis (1976), 65 Ill. 2d 157, 164, 357 N.E.2d 792, 795-96.

The Langdon decision adopted the Casey analysis as follows:

“ ‘One of the facts to be proved to establish a prior conviction is to show the defendant charged with the commission of the substantive offense was the same person that was convicted and sentenced as shown by the record of the prior conviction.
The mere proof of a record containing identity of name with that of the defendant on trial is not sufficient to overcome the presumption of innocence where the enhancement of the penalty depends upon the proof of such fact.’ ” Langdon, 73 Ill. App. 3d at 884-85, 392 N.E.2d at 144.

Subsequent to the decisions in Casey and Langdon, the supreme court adopted the general rule that “identity of name gives rise to a rebuttable presumption of identity of person.” (People v. Davis (1983), 95 Ill. 2d 1, 31, 447 N.E.2d 353, 368, cert. denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507.) Thus, defendant’s reliance on People v. Langdon is misplaced.

It was the obligation of the defendant to bring to the attention of the sentencing court any alleged deficiency or inaccuracy in the presentence investigation report. (People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9, 14.) This the defendant failed to do. We note from the adult criminal history for Larry Stewart, which is part of the record before us, that his address at the time of the three prior arrests and felony convictions and at the time of his arrest for the instant offense is identical to that listed in the pretrial and presentence investigation reports for defendant. For this reason, and because of defendant’s agreement to proceed to sentencing based on the pretrial report which identified three prior felony convictions, we find defendant has unequivocally acknowledged his identity as the person described in the report.

Relying on People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130, and on People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107, appeal denied (1987), 116 Ill. 2d 567, defendant also contends that his sentence should be vacated because the State failed to prove the dates of commission of his prior felony convictions. The record of defendant’s adult criminal history contains the dates of arrest and of conviction for each of defendant’s previous felonies. We note from this record that defendant was arrested for burglary on January 31, 1981, and he was convicted of that offense on February 3, 1981. On January 25, 1982, defendant was again arrested for burglary and was convicted on October 12, 1982. Defendant was again arrested for burglary on February 8, 1982, and was convicted for that offense on November 18, 1982.

Just as a conviction may be based upon circumstantial evidence and the inferences drawn therefrom (People v. Williams (1987), 118 Ill. 2d 407, 515 N.E.2d 1230; People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 309), we believe that it was logical for the trial court to infer that defendant’s second felony, for which he was arrested January 25, 1982, was committed after his first felony conviction on February 3, 1981. The instant offense was committed on April 5, 1985, after his conviction of the second felony. The record indicates, therefore, that defendant’s offenses and convictions occurred in the sequence required by section 5 — 5—3(c)(8). Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8); People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107.

As noted above, defendant and his counsel were present at the sentencing hearing and made no objection to the application of section 5 — 5—3(c)(8) on the ground that the State had not adequately proved the dates of commission of his prior convictions. Consequently, defendant’s sentence will not be vacated on this basis. (Morrow v. Dixon (1985), 108 Ill. 2d 223, 483 N.E.2d 876; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) We find defendant was properly sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code of Corrections. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8).

Subsequent to oral argument, the State was granted leave to cite additional authority and referred the court to language in People v. Palmer (1984), 104 Ill. 2d 340, 472 N.E.2d 795, where it was noted:

“The defendant in [People v.] Hayes [(1981), 87 Ill. 2d 95, 429 N.E.2d 490] was claiming prejudice as a result of the State’s failure to include an allegation that the pending charge was a second or subsequent offense. She was not claiming that the allegation and proof of the prior conviction should have been excluded as prejudicial, as did the defendants in Ostrand and Owens. Therefore, the issue of whether prejudice results when the State alleges and proves the prior conviction was not presented in Hayes. Accordingly, any comment the court made regarding that issue is properly characterized as dicta, which is not binding authority within the rule of stare decisis. [Citation.] Thus Hayes holds only that, where a defendant has notice that she is being tried as a felon, a felony conviction for retail theft can be sustained despite the State’s failure to allege in the information that the offense charged was a second or subsequent offense of retail theft. (People v. Hayes (1981), 87 Ill. 2d 95, 98.) As such, Hayes did not overrule Ostrand or subsequent cases based thereon.” (Emphasis in original.) Palmer, 104 Ill. 2d at 347-48, 472 N.E.2d at 799.

Defendant responded, arguing that the supreme court decision in People v. Palmer did not alter the burden of proof of prior convictions and that such convictions must be proved beyond a reasonable doubt.

Although defendant’s prior convictions were not elements of the instant offense, he contends that the State was required to prove them beyond a reasonable doubt. In support of this contention, defendant relies primarily on People v. Hayes. In Hayes, the defendant’s prior conviction was an element of the offense for which she was to be sentenced. Hayes, therefore, is factually distinguishable from the instant case. The Hayes ruling is limited to its facts and has no precedential application to our case because prior convictions were not elements of the offense for which defendant was convicted. We find, however, that the record here supports the trial court’s ruling that defendant’s prior convictions were proved beyond a reasonable doubt.

We also find that defendant’s eight-year sentence was proper under the statute authorizing extended-term sentences. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)(4).) The evidence in the record established that defendant was convicted of a Class 2 felony. The record also indicated that he had, within the previous 10 years, been convicted of three Class 2 felonies and that these charges were separately brought and tried and arose out of different series of acts. Defendant argues, however, that the trial court could not have sentenced him to an extended term because neither the court nor the State mentioned extended term at sentencing.

It is recognized that the court is presumed to know the law and to apply it properly without any prompting. (People v. Planer (1987), 161 Ill. App. 3d 938, 942, 515 N.E.2d 1042, 1045; People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 1063, 433 N.E.2d 361, 365; People v. Roberson (1980), 83 Ill. App. 3d 45, 49, 403 N.E.2d 490, 492.) Section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)) mandates that the factors enumerated in section 5 — 5—3.2(b) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)) be found present before an extended term is imposed. The requirement that the court set forth in the record the reasons for a sentence does not, however, obligate the court to recite and assign value to each fact presented at the sentencing hearing. People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14; People v. McFarland (1981), 93 Ill. App. 3d 136,144, 416 N.E.2d 769, 776.

Additionally, a court of review, in considering the appropriateness of punishment, must give great weight to the judgment of the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. The trial court is normally in a better position to determine the punishment to be imposed than is a court of review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We find no such abuse of discretion here.

In the instant case, the presentence investigation report reflected that defendant had, within the previous 10 years, been convicted of three Class 2 felonies. As previously stated, defendant failed to correct the information in the presentence investigation report or to dispute the report’s accuracy of validity (Morrow v. Dixon (1985), 108 Ill. 2d 228, 483 N.E.2d 876; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9), and he did not deny the prior convictions (People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353; People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792; People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107). In addition, the trial judge specifically referred to defendant’s three prior burglary convictions as the basis for the sentence imposed. Thus, the record clearly established that defendant was eligible to be sentenced to an extended term (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(1)) or as a Class X offender under section 5 — 5—3(c)(8) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8)).

Although the trial court did not specifically refer to the extended-term provision or to the Class X provision in sentencing defendant, the court’s reference to defendant’s prior convictions served as a sufficient basis for the sentence imposed. A court of review will not draw negative inferences from a record (People v. Roberson (1980), 83 Ill. App. 3d 45, 49, 403 N.E.2d 490, 493), and all reasonable intendments not contradicted by the record are to be taken in favor of the validity of the judgment (People v. Bassinger (1949), 403 Ill. 108, 85 N.E.2d 758, cert. denied (1949), 337 U.S. 960, 93 L. Ed. 1759, 69 S. Ct. 1524). Where the evidence in the record supports the imposition of either a Class X sentence or an extended term and the defendant has failed to request a statement of reasons for the sentence imposed, the issue cannot be asserted as a ground of error on appeal. People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473; People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674; People v. Carter (1984), 129 Ill. App. 3d 1076, 473 N.E.2d 434.

The eight-year sentence imposed by the trial court was well within the sentencing guidelines for both a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3)) and for an extended term (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)(4)). We find that the prosecution argued in favor of a Class X sentence, and the trial court properly sentenced defendant as a Class X offender. On review we will not disturb the sentence imposed by the trial court.

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

Judgment affirmed.

EGAN, P.J., and QUINLAN, J., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENRICO LEVY, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—2377
    Opinion filed July 28, 1989.

      Bruce Mosbacher, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State's Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Nancy Colletti, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant of attempted murder, armed violence and aggravated battery. He was sentenced to 24 years’ imprisonment. No issue is made of the sufficiency of the evidence.

The defendant’s only assignment of trial error involves proof of another offense. Before trial began, the defendant made a written motion in limine seeking to bar “[a]ny reference to criminal conduct of defendant including references to any drug selling or buying *** between defendant and witness Anthony Blue.” During argument on the motion, the assistant State’s Attorney told the court that the evidence would show that the defendant attempted to sell Blue some drugs, that Blue refused and that insulting words were exchanged that led to an altercation between him and the defendant. The court then ruled that it would permit the evidence. We judge that the State was arguing that it would offer the evidence to show a motive for the crime.

Anthony Blue testified that about 11 p.m. on July 18, 1985, he was standing in a vacant lot near 816 South Cicero Avenue in Chicago with his girlfriend, Tina Preston. The defendant asked if Blue wanted some marijuana, and Blue told him that he did not. The defendant had “a few words” with Tina Preston, and Blue began to argue -with him. Blue asked the defendant “why he did approach her like that?” One thing led to another, and they then had a fistfight. Another man named “Cigar Man” broke up the fight. Blue and the defendant went their separate ways.

Blue was walking northbound on Cicero with Tina Preston when he was shot three times, once in the lower back and twice in the buttocks. He saw the defendant on a bicycle about five feet away. He had seen the defendant in the neighborhood occasionally for several years.

On re-cross-examination he was asked if the “altercation” was “over dope” and he said it was over the way the defendant had approached Preston. “It wasn’t over no dope.” On redirect he said that his refusal to buy marijuana was not what the argument was about; the argument arose because the defendant had approached Tina in a way that he did not like and she did not like. He and the defendant then had an argument and ended up fighting. On further re-cross he said he did not remember telling Officer Stampnick that the defendant’s attempt to sell him marijuana led to the fight.

Tina Preston testified that after she heard a gunshot she saw the defendant on a bicycle with a gun in his hand. Blue tried to shield her and there were three more shots. The defendant started to laugh and rode off on the bicycle. She also testified that before the shooting, a fight had occurred after the defendant asked Blue whether he wanted to buy some marijuana and Blue said that he did not. Then the defendant started saying things about her that Blue did not like, and they started fighting.

Officer Stampnick testified on direct examination only that she had arrested the defendant. The defendant’s attorney then brought out that Blue and Preston told her that the argument with the defendant was over marijuana and never told her, as far as she could recall, that the argument was over the way the defendant had talked to Preston.

The defendant did not introduce any evidence.

In the written motion for a new trial and in argument on the motion, the defendant contended that the evidence of his attempt to sell Blue marijuana should not have been admitted. While his attorney made passing reference to the fact that there was a claim by the State that narcotics was the cause of the fight and the evidence established that the fight was caused by the defendant’s insulting remarks about Preston, the inconsistencies between the State’s representation to the judge and the evidence does not appear to be the basis of the motion or the argument in support of the motion.

The State responded to questions by the judge about the inconsistency between the reason for the fight as expressed by the State and the testimony of Blue and Preston. The judge rejected the State’s argument that the evidence was part of the res gestae, saying that the doctrine of res gestae has not existed in Illinois for several decades. He concluded, however, that the prosecutor made a good-faith representation as to what the evidence would be, but he added that he would not have permitted the evidence to be introduced; he would have allowed the motion in limine. He denied the motion for a new trial, holding that the error was harmless beyond a reasonable doubt in view of all the evidence.

The judge’s assessment of the evidence was correct. Contrary to the defendant’s argument, the identification was not questionable. Both witnesses had known the defendant for a considerable period of time; and, as the judge pointed out, the fact that the defendant and Blue had had a fight five minutes before the shooting was a strong circumstance corroborating their identification.

We agree that the admission of the evidence did not warrant a new trial; but, we would go further. In our judgment the evidence was admissible as part of the res gestae, and we do not believe that the rule permitting proof of other crimes that constitute part of the res gestae is no longer the law of Illinois. We are aware that res gestae has been criticized by some textwriters insofar as its use as an exception to the hearsay rule is concerned. (See E. Cleary & M. Graham, Handbook of Illinois Evidence §803.2, at 549-50 (4th ed. 1984) (Cleary & Graham); E. Cleary, McCormick on Evidence §288, at 686-87 (2d ed. 1972).) But from our reading of Cleary & Graham we conclude that the authors were restricting their condemnation to the use of the term under the hearsay rule and not to its use as an exception to the rule barring proof of other crimes. This is evidenced by their distinguishing citation of People v. Crocker (1962), 25 Ill. 2d 52, 183 N.E.2d 161, in which the supreme court said that proof of a sexual assault other than that for which the defendant was on trial was “admissible as a part of the res gestae” and that its holding “appears to be in accord with the great weight of authority.” (25 Ill. 2d at 55.) Acceptance of the rule has never been questioned in any reviewing court in Illinois to our knowledge. As recently as 1987, this court upheld admissibility of another crime on the ground that it constituted part of the res gestae. People v. Demeron (1987), 153 Ill. App. 3d 440, 505 N.E.2d 1222.

We would also hold that the defendant has waived any objection on the ground of any variance between the testimony and what the State had represented to the court. At no time did the defendant raise any objection after Blue testified about the cause of the fight. He never renewed his motion, made no motion to strike the testimony, no motion for a mistrial and never called the variance to the attention of the judge. As a matter of fact, the defendant used the variance to his advantage. By that variance between the testimony of Blue and Preston and that of Officer Stampnick, the defendant was able to show some impeachment, since as it was, and he argued that point before the jury. In that vein, we refer to the defendant’s additional argument that the State improperly referred to this evidence in its closing argument. The State’s closing argument, to which no objection was made, was an appropriate response to the argument of the defendant’s attorney, who referred to the alleged contradictory statements made by Preston and Blue. We conclude that the court did not err in denying the motion for a new trial.

The defendant’s only other contention is that the trial court erred in failing to appoint new counsel to present his post-trial motion in which he alleged ineffective assistance of counsel.

The assistant public defender filed a motion for a new trial on August 5, 1986. On August 14, when he appeared with the defendant for a hearing on the motion, he also asked leave to file a motion to withdraw. It was brought in the name of the defendant, who swore to its contents, and had been prepared by the assistant public defender who had tried the case. In the motion, the defendant stated that he had several discussions with his counsel regarding ineffective assistance based on the following factors:

“A) Counsel had inadequate time to properly prepare the instant case for trial;
B) The cross-examination of Tina Preston was ineffective assistance of counsel in that it was unnecessarily narrow in scope and content and failed to fully bring before the jury issues affecting her believability;
C) Counsel’s failure to interview defense witnesses and [State] witnesses adequately and in sufficient time before trial to do further investigation was ineffective assistance of counsel.”

After a hearing in which the judge questioned the defendant and the assistant public defender, he denied the motion to withdraw. The assistant public defender then presented a four-page motion for a new trial, which was also denied. The defendant contends that the court erred in denying the motion to withdraw and asks that we grant him a new hearing on his post-trial motion at which he would be represented by counsel other than his trial attorney. We assume that the post-trial motion would be amended to include ineffective assistance of counsel; and the new attorney would investigate and argue that claim.

Post-trial motions alleging incompetence of counsel are seemingly becoming fashionable (see People v. Miles (1988), 176 Ill. App. 3d 758, 531 N.E.2d 891 (and cases cited therein)) and constitute still another rung in the appellate ladder that the bar and the courts must scale. Some earlier decisions appear to indicate that the mere allegation of trial ineffectiveness in a post-trial motion triggered the requirement that new counsel be appointed to investigate the allegation. (See, e.g., People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178.) But later cases have disabused us of such a notion. (People v. Davis (1986), 151 Ill. App. 3d 435, 502 N.E.2d 780; People v. Mallette (1985), 131 Ill. App. 3d 67, 475 N.E.2d 237.) A commonsense and realistic approach to the problem was provided in People v. Johnson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, and People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610. In Jackson, the court expanded on Johnson, affirmed the denial of the motion to withdraw and approved the procedure followed by the trial judge, who, coincidentally, is the trial judge in this case. The court held that where ineffective assistance of counsel is claimed in a post-trial motion, the trial judge may question the allegedly ineffective counsel “to determine whether the facts underlying defendant’s claim have potential merit and to refuse to appoint new counsel if defendant’s claim is spurious or revolves simply around a matter of trial strategy or tactics.” 131 Ill. App. 3d at 139.

There is certain language of Jackson, however, we believe should be viewed with caution: “[S]ome interchange between the court and the defendant’s attorney must take place. Such an interchange is necessary to avoid potential abuses ***.” (Emphasis added.) (131 Ill. App. 3d at 139.) If the Jackson court meant that in all cases the trial judge is required to examine counsel, we must express disagreement as, we conclude, this court did in People v. Miles (1988), 176 Ill. App. 3d 758, 531 N.E.2d 891. There may be cases where the allegations of the motion itself are so obviously baseless or conjectural to the trial judge, who, having observed all of the proceedings, is in the best position to determine the question, that any further inquiry is unnecessary.

But we do not believe, as apparently the Miles court did, that procedures to be followed in cases involving appointed counsel should differ from procedures in cases involving retained counsel. (Cf. People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Nor do we see anything in the procedure followed in Jackson as an abridgment of the right of a defendant to choose his own counsel. The claim in a post-trial motion that trial counsel was incompetent is, implicitly at least, an expression of a desire that the lawyer-client relationship be terminated, whether the lawyer is retained or appointed. If the judge determines that there may be some merit in the claim of incompetence on the part of retained counsel, the defendant, of course, should be given the opportunity to retain other counsel to pursue the claim.

In any event, this case involves appointed counsel, and the procedure followed was proper: the court considered the allegations of the motion, and he questioned the defendant’s attorney and the defendant.

The propriety of the procedure being accepted, the issue becomes the propriety of the judge’s determination that ineffective assistance had not been established to the point that appointment of separate counsel was required.

The defendant was no stranger to the criminal court, or to defense attorneys, having an extensive record beginning in 1971 which contained three felony convictions. His claim that his counsel had inadequate time to prepare for trial rings hollow, since the record shows that the defendant was demanding trial. Indeed, he filed his own three-page motion for discharge on the day of trial on the ground he had not been brought to trial within 120 days.

We do not read the assistant public defender’s remarks as an admission that he was ineffective, as the defendant argues, but, rather, a statement that he was ineffective in the defendant’s view. He also told the judge that the defendant’s complaints were made after the trial and that he could not remember whether they were mentioned during the trial. He had been an assistant public defender for several years, and it was his practice to give the defendant an opportunity during trial to call any claim of his ineffectiveness to the attention of the court. He also said that he had attempted to locate witnesses without success.

The defendant told the judge in response to his questions that Calvin Richmond should have been interviewed. Later, he said a man named “Sugarman” (Cigar Man?) should have been interviewed, as well as Tina Preston and Blue.

The court noted that the case was a “simple” one, that neither Richmond nor Sugarman was a witness to the shooting, that the assistant public defenders had presented a vigorous defense and that their cross-examination of Preston and Blue was “sufficient and effective.” He also noted that Preston and Blue were under no obligation to talk to the defendant’s attorney and there was no indication that a pretrial interview would have benefitted the defendant. He concluded that the defendant had an opportunity to call the matters to his attention before or during the trial and that his belated claim was “sour grapes.”

We agree with the procedure followed and the judge’s conclusions. The entire record displays more than ample justification for the denial of the motion to withdraw.

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

Judgment affirmed.

QUINLAN and LaPORTA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES TURNER, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—3329
    Opinion filed July 28, 1989.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Patrick Brady, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, James Turner, was indicted by a grand jury on one count of burglary under section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)). A jury found him guilty of burglary, and defendant was sentenced to 12 years’ incarceration. Defense filed a motion for new trial on the ground that defendant had not been found guilty beyond a reasonable doubt, which was denied, and the defendant appeals.

The essential facts of this case, as shown at trial, are that at approximately 6:45 p.m. on December 30, 1985, three agents of the Chicago Northwestern Transportation Company (CNW) were on surveillance, sitting in two cars at the CNW’s Wood Street railyard. One agent saw several persons enter the yard, and one of the party broke into a sealed railcar, tossing boxes out to his companions. The agents gave chase and apprehended the defendant, who was identified in court as the person who had broken into the railcar.

Defendant claims that he was driving in the vicinity when boxes fell from a viaduct in front of his car; that he left his car to investigate; and that he ran when he saw the CNW agent chasing him and another, unidentified, person. Defendant was arrested and subsequently charged in a single-count indictment with burglarizing a railroad car.

Defendant raises three issues on appeal: (1) whether he was subjected to double jeopardy by the court’s dismissal and replacement of a juror during voir dire; (2) whether the trial court erred in admitting proof of the defendant’s prior convictions on rebuttal to impeach his testimony; and (3) whether the defendant’s extended term sentence was excessive.

The first inquiry must be whether the issues raised by the defendant upon appeal should be addressed, because they were not raised in the defendant’s motion for a new trial. “The motion for a new trial shall specify the grounds therefor.” (Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1(c).) Here the defense argued only “[tjhat the defendant was not found guilty beyond a reasonable doubt.”

Failure to raise an issue in the motion for a new trial acts as waiver of that issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, 227, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362; People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995, 999, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330, rehearing denied (1987), 481 U.S. 1025, 95 L. Ed. 2d 520, 107 S. Ct. 1915.) However, there are exceptions to this rule, and because each issue falls within a different exception, they will be addressed as each issue is discussed.

Defendant first argues that he was placed in double jeopardy when a prospective juror who had been selected and sworn was later excused during voir dire. The record discloses that during voir dire, and after he had been selected and preliminarily sworn to serve on the jury, Edward White volunteered the information that he had been convicted of and incarcerated for a crime and that another member of his family had also been convicted of a crime. White stated that he could give both sides a fair trial, and the court stated that it could not excuse him for cause. On the State’s peremptory challenge, and over the defendant’s objection, the court excused White from the jury. Another juror was selected to complete the panel of 12. While the Illinois Code of Criminal Procedure of 1963 provides that the court may authorize the selection of alternate jurors, it is not required to do so. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(g).) Voir dire then continued until two alternates were selected. At the conclusion of the voir dire, all 12 jurors and the two alternates were sworn.

Although this issue was not presented in defendant’s post-trial motion, defendant contends that timely objection at trial preserves the issue for review even without inclusion in defendant’s post-trial motion for a new trial. The Illinois Supreme Court in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, affirmed that “[bjoth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) The court further stated that the fact that an objection was made at trial “does not justify ignoring the clear mandate of the statute that the question be set forth in writing in the motion for a new trial.” Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130; see also People v. White (1989), 181 Ill. App. 3d 798, 803, 537 N.E.2d 1315, 1318.

While holding that failure to preserve an issue by raising it at trial and in a post-trial motion constitutes a waiver of the issue for purposes of appeal, the court in Enoch acknowledged an exception to the waiver rule for a constitutional question. (Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.) The Illinois Constitution, article I, section 10, provides that “[n]o person shall *** be twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, §10.) Clearly, the issue of double jeopardy raised by the defendant here is a constitutional issue and it should be reviewed even though not raised in a post-trial motion.

The defendant argues that he was twice placed in jeopardy for the crime of burglary and that his conviction should be vacated because one prospective juror was excused after he had been accepted, but before the alternates were chosen. The query that must be decided by this court is, when does jeopardy attach?

The Illinois statutory provision regarding double jeopardy states in pertinent part:

“A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(3) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court.” Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).

It has long been held that the jury must be “empaneled and sworn” before jeopardy attaches. (Downum v. United States (1963), 372 U.S. 734, 737-38, 10 L. Ed. 2d 100, 102, 83 S. Ct. 1033, 1035; Serfass v. United States (1975), 420 U.S. 377, 388, 43 L. Ed. 2d 265, 274, 95 S. Ct. 1055, 1062.) The defendant here argues that this occurred when the jurors were sworn in their panels of six, even though they were later reswom as a full panel with the alternates just before the trial commenced. Because Edward White was sworn before he was excused the defendant argues that jeopardy had attached.

The United States Supreme Court has held “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment” (Benton v. Maryland (1969), 395 U.S. 784, 794, 23 L. Ed. 2d 707, 716, 89 S. Ct. 2056, 2062), and that “[t]he federal rule that jeopardy attaches when the jury is impaneled and sworn” also applies to the States through the fourteenth amendment. (Crist v. Bretz (1978), 437 U.S. 28, 38, 57 L. Ed. 2d 24, 33, 98 S. Ct. 2156, 2162.) However, while the rule of Crist is applicable here, the defendant’s rote insistence upon its literal wording is misplaced. All the cases cited by the defendant involve mistrials or cases where the juror was dismissed during trial and do not approach the issue of a juror having been dismissed during voir dire. In Crist, after the jury was empaneled and sworn and the trial had begun, but before the first witness was sworn, Bretz filed a motion noting an error in the information filed in that case which gave the date of the illegal conduct as one year after its occurrence — and several days after the statute upon which the information was based had been repealed. The prosecution moved to dismiss the information, and the motion was granted. Thereafter a new information was prepared and an entirely new jury sworn. In Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066, a mistrial was declared because of an insufficient indictment, with the defendant later charged for the same crime under a valid indictment. The jury had been impaneled and sworn when the mistrial was declared. (Somerville, 410 U.S. at 459-60, 35 L. Ed. 2d at 428, 93 S. Ct. at 1068-69.) In both cases the Court held that jeopardy had attached when the first jury was sworn, and thus the second trial placed the defendant in double jeopardy. Crist, 437 U.S. at 38, 57 L. Ed. 2d at 33, 98 S. Ct. at 2162; Somerville, 410 U.S. at 460, 35 L. Ed. 2d at 428, 93 S. Ct. at 1068-69.

In other cases cited by the defendant, a juror was dismissed during trial for reasons the reviewing court found insufficient. The defendant relies heavily upon People v. Payton (1971), 2 Ill. App. 3d 693, 276 N.E.2d 775, but in that case the juror approached the court, after trial had begun and the complaining witness had testified, with information that the juror had not known at the time of voir dire but had since discovered. After examining the juror, the court held that the information would not affect the juror’s fairness and did not dismiss the juror. The reviewing court held that if he had done so, it might have “furnished a sufficient basis for a subsequent claim of double jeopardy.” (Payton, 2 Ill. App, 3d at 697-98, 276 N.E.2d at 778.) The cases cited by defendant clearly differ from the instant case, because in all of them the trial had already begun when the juror was excused.

In two Illinois cases where a juror was dismissed before the trial began, the courts have found no double jeopardy. In People v. Harvey (1987), 162 Ill. App. 3d 468, 515 N.E.2d 337, after the 12 jurors were selected and sworn but before the alternates could be chosen or the case heard, one juror informed the court that he “was not going to be able to try the case. The parties agreed that juror could be excused, but that juror was not immediately excused.” (Harvey, 162 Ill. App. 3d at 472, 515 N.E.2d at 340.) The appellate court found it improper for the trial court to have selected the alternates before selecting a replacement juror. Because the alternates had been selected before the juror was excused, the appellate court said that the trial court should have replaced the excused juror with an alternate juror, as provided in the statute. However, the appellate court also found that there was no discernible prejudice to the defendant because the replacement “juror was with the jury from the time of opening statements until the verdict was accepted.” Harvey, 162 Ill. App. 3d at 473, 515 N.E.2d at 341.

In a case with even more similar facts, People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350, the court held that the defendant was not harmed when a juror was dismissed after he had been selected and sworn. The court noted that “[a] defendant’s right to a trial by an impartial jury does not mean that he is entitled to have a particular person serve on the jury.” (Watson, 103 Ill. App. 3d at 997, 431 N.E.2d at 1355, citing People v. Nicholson (1978), 61 Ill. App. 3d 621, 627, 377 N.E.2d 1063, 1068.) Before the opening statements were made in Watson, a juror admitted on inquiry by the court “that he had not mentioned all his convictions [or those of his brother] during voir dire” and the trial court excused the juror on a peremptory challenge from the State. (Emphasis in original.) (Watson, 103 Ill. App. 3d at 997, 431 N.E.2d at 1354-55.) The appellate court found that the trial court’s entertainment and grant of the State’s tardy motion was merely harmless error. Watson, 103 Ill. App. 3d at 998, 431 N.E.2d at 1355.

Defendant contends that Watson is inapplicable because the issue of double jeopardy was not addressed. However, in Watson it was the State who challenged the juror’s ability to serve, and only upon inquiry by the court did the juror admit his untruthfulness. In the instant case, the juror presented himself to the court as soon after his selection as possible, so that there was no error in timing by an officer of the court.

The trial court here systematically disqualified prospective jurors who admitted during voir dire that they or a relative had been accused of a crime. The court asked this question of only 25 of 43 prospective jurors and neglected to ask it of White. White volunteered the information himself after he was preliminarily sworn. He was excused on a peremptory challenge by the State.

Courts in other jurisdictions faced with similar situations also have held that jeopardy does not attach until the jury sits to hear the case. In a Pennsylvania case, a juror was dismissed after all 12 jurors had been selected and sworn but before the alternates were chosen, and the court noted that jeopardy only attaches when the defendant is “regularly charged with crime before a tribunal properly organized and competent to try [the defendant].” (Commonwealth v. Almeida (1949), 362 Pa. 596, 637, 68 A.2d 595, 615, quoting Commonwealth v. Fitzpatrick (1888), 121 Pa. 109, 116, 15 A. 466, 467.) Thus, the court said, “[a] jury does not come into being until it is completely selected and sworn” (emphasis in original) (Almeida, 362 Pa. at 638, 68 A.2d at 616), because “[e]leven jurors, or eight, can give no verdict. *** [T]he tribunal is unorganized when there are less then twelve.” Commonwealth v. Curry (1926), 287 Pa. 553, 556-57, 135 A. 316, 317, cited in Almeida, 362 Pa. at 637, 68 A.2d at 615.

The California statute is very similar to section 115 — 4(g) of the Illinois Code of Criminal Procedure and provides that the judge may appoint alternate jurors. (Cal. Penal Code §1089 (Deering 1971).) A long line of cases has interpreted this to mean that when a judge decides to impanel alternate jurors, jeopardy attaches only after the alternate juror is sworn, and thus a defendant is not put into jeopardy when a juror is dismissed after being sworn but before the alternates have been selected. People v. Burns (1948), 84 Cal. App. 2d 18, 33, 189 P.2d 868, 872; see also People v. Caro (1988), 46 Cal. 3d 1035, 1047, 761 P.2d 680, 686-87, 251 Cal. Rptr. 757, 764; In re Mendes (1979), 23 Cal. 3d 847, 855, 592 P.2d 318, 322-23, 153 Cal. Rptr. 831, 835; People v. Davis (1972), 27 Cal. App. 3d 115, 119, 103 Cal. Rptr. 494, 497.

In the Federal circuits, dismissal of a juror after the entire panel has been selected and sworn but before any arguments are made or any testimony is given has been held not to create double jeopardy when the juror is replaced by an alternate. Gillars v. United States (D.C. Cir. 1950), 182 F.2d 962, 980; Banks v. United States (8th Cir. 1953), 204 F.2d 666, 671.

When White was dismissed in the instant case, there were no alternate jurors. After his dismissal, the jury contained only 11 members, not 12. A panel of 11 could not have tried the case, because “[a] jury shall consist of twelve members.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(b).

Jeopardy does not attach until the defendant is at risk of conviction for the crime of which he is accused. (Breed v. Jones (1975), 421 U.S. 519, 528, 44 L. Ed. 2d 346, 354, 95 S. Ct. 1779, 1785; Serfass v. United States, 420 U.S. at 391-92, 43 L. Ed. 2d at 276, 95 S. Ct. at 1065; United States v. Green (D.C. Cir. 1977), 556 F.2d 71, 72.) We find that it was not error for the trial court to complete the jury before selecting the alternates, and the defendant was not subjected to jeopardy at the time Edward White was excused from the jury.

The defendant next argues that the court’s admission of evidence of his prior convictions during rebuttal was a reversible error. The State again counters that the defendant did not properly preserve the issue for review by specifying it in the motion for a new trial. “The motion for a new trial shall specify the grounds therefor.” (Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1(c).) Failure to raise an issue in the motion for a new trial acts as waiver of that issue, although there is an exception for “[p]lain errors or defects affecting substantive rights [which] may be noticed although they were not brought to the attention of the trial court.” (Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1(c); Enoch, 122 Ill. 2d at 189, 522 N.E.2d at 1131-32.) “[W]here the magnitude of the error may result in a substantial prejudice to the right of the defendant to a fair trial, we have nevertheless on proper occasions considered the error as though it had been properly preserved for appeal.” People v. Manzella (1973), 56 Ill. 2d 187, 195, 306 N.E.2d 16, 20, cert. denied (1974), 417 U.S. 933, 41 L. Ed. 2d 236, 94 S. Ct. 2644; see also People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743; People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 238.

Here, the evidence of the defendant’s prior convictions was offered as rebuttal evidence to challenge his credibility. “Rebuttal evidence is that which is produced to explain, repel, contradict, or disprove evidence given by the defendant, and where the evidence offered in rebuttal is real rebuttal evidence, the fact that it might have been offered in chief does not preclude its admission in rebuttal.” People v. Gray (1980), 85 Ill. App. 3d 726, 730, 410 N.E.2d 493, 496, quoting People v. Nettles (1969), 107 Ill. App. 2d 143, 155, 246 N.E.2d 29, 34.

The State offered as rebuttal evidence certified copies of defendant’s convictions for two thefts and one burglary, all committed within the 10 years immediately prior to this offense, and argued in response to defendant’s objection that the convictions should be admitted because defendant’s prior history of theft offenses was highly probative of his credibility and evidenced a continued trend of deceitful conduct. The court overruled defense’s objections and found that all three were properly admissible under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. In his instructions to the jury, the trial judge below stated that “[ejvidence of a Defendant’s previous conviction of an offense may be considered by you only insofar as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.”

In his exercise of judicial discretion to determine whether the evidence of prior convictions should be admitted into evidence to impeach the defendant’s credibility, the Montgomery rule requires the court to consider the probative relevance of the evidence against its prejudice to the defendant. We find that the trial court properly admitted evidence of defendant’s prior convictions on rebuttal. As required by Montgomery, the convictions occurred within the immediately prior 10-year period, a fact acknowledged as true by defense counsel. A court is not required to articulate its reasoning in reaching the conclusion that the Montgomery standard has been met. (People v. Comes (1980), 80 Ill. App. 3d 166, 176, 399 N.E.2d 1346, 1353.) Because the trial court gave a limiting instruction to the jury, we find no error in the court’s admission of evidence of defendant’s prior convictions on rebuttal.

We also find that the record clearly supports defendant’s conviction for burglary of the railcar. Agent Nolan testified that he followed the defendant until he lost sight of the defendant when “[h]e took a right, *** onto Wolcott Avenue,” and Agent Finger testified that he “observed the subject matching the description given out [over his radio] by Special Agent Nolan exiting the viaduct *** to the corner of Wolcott and 16th.” He then gave chase until the defendant surrendered. Both Agents Nolan and Finger testified to the defendant’s possession of the vise grips at his arrest, and Officer Jaricz testified as to the procedure for inventorying evidence and bringing that evidence to court. The defendant denied that the vise grips offered in evidence were the ones he used to start his car, even though the officers testified that they were the ones taken from the defendant at the time of his arrest.

The trial court and jury were able to view the witnesses’ and defendant’s demeanor as they testified and would be best qualified to judge their credibility. The weight of the evidence supports the jury’s finding of defendant’s guilt of the crime of burglary in this instance and we will not reverse the jury’s findings.

Finally, the defendant argues that a 12-year term is excessive. In pertinent part, section 5 — 5—3.2(b) of the Unified Code of Corrections provides:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under [Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2] upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; ***” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b).

There is no question here that the defendant was eligible for an extended term: he was 24 years of age at the time of occurrence and had four criminal convictions within the 10-year period immediately prior to this conviction, including a previous Class 2 burglary conviction and a Class 3 felony theft conviction for which he received three years in the penitentiary. However, the defendant argues that the trial judge indicated before the trial a predisposition toward an extended term because he asked whether the defendant was eligible for an extended term and, upon being told he was, noted that “[t]hat is fourteen years.” We believe that the trial judge was not in fact predisposed towards an extended term, but rather that he was merely noting the possible effect of the extended-term statute.

Absent abuse of discretion, a reviewing court will not modify the sentence imposed by a trial court because the trial court has had the opportunity to observe factors not visible on the record, such as “the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age.” (People v. Jackson (1986), 140 Ill. App. 3d 318, 326, 488 N.E.2d 1056, 1062.) Unless the trial court has abused its discretion, the reviewing court should not alter the sentence imposed. People v. La Pointe (1982), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348-49; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 885.

Four of the cases cited by the defense to support its plea for a reduced sentence are sufficiently distinguishable on their facts from the instant case that they cannot be considered controlling. In People v. Hudson (1972), 3 Ill. App. 3d 815, 279 N.E.2d 120, the defendant was 17 years old and faced his first felony conviction. (Hudson, 3 Ill. App. 3d at 816, 279 N.E.2d at 120.) In People v. Oravis (1980), 81 Ill. App. 3d 717, 402 N.E.2d 297, the defendant burglarized a home to steal property which had belonged to his deceased grandfather; because it was his first offense, he had no record, and “did not threaten or cause physical harm,” the court reduced his sentence from six years to four. (Oravis, 81 Ill. App. 3d at 719, 402 N.E.2d at 299.)

In People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606, the defendant was 16 years of age, had a good history and positive desire to complete his education, and was not the aggressor; the court reduced his sentence for murder from 30 years to the statutory minimum of 20 years. (Steffens, 131 Ill. App. 3d at 153, 475 N.E.2d at 616.) Similarly, in People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491, cited as the basis for the Steffens decision, the court reduced a murder sentence from 50 to 100 years to 15 to 45 years based upon the defendant’s youth, lack of previous record, and history of steady employment and living with his parents, whom he assisted financially. Gibbs, 49 Ill. App. 3d at 649, 364 N.E.2d at 494.

All four defendants in the above cases were young, were charged with their first felony (and in two cases, with their first crime), and with one exception had solid backgrounds which reflected a strong possibility of rehabilitation. All are quite different from the defendant in the instant case, who is in his mid-twenties and has a long history of criminal activity.

Two cases heavily relied upon by the defense, People v. Marshall (1968), 96 Ill. App. 2d 124, 238 N.E.2d 182, and People v. Holmes (1970), 127 Ill. App. 2d 209, 262 N.E.2d 45, predate the extended-term statute and therefore are not appropriate precedent for the defendant’s argument against the propriety of the sentence.

In the instant case, the sentence of 12 years (less time served) is within the strictures of the extended-sentencing statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(aX4)) and toward the lower end of the prescribed sentences. Defendant has beén convicted four times, receiving probation twice and incarcerated twice, once for 30 days for criminal trespass to land and once for three years for burglary.

At sentencing, the trial judge here indicated that he had considered the defendant’s background and had read “25 pages of a presentencing investigation.” The trial judge indicated that in his opinion the fact that the defendant had recovered nothing by his act was not a mitigating factor and imposed sentence.

As we stated earlier, an appellate court will not alter the sentence imposed by a trial court without clear indication of abuse of discretion or other impropriety. Here, review of the record shows no abuse of discretion by the trial court.

Accordingly, for all of these reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

McNAMARA and QUINLAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. WELACHA, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1789
    Opinion filed July 28, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Judith C. Rice, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

The sole issue here is whether the defendant, William Welacha, was properly found guilty of child abduction under section 10 — 5(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(1)).

Except where the testimony was in conflict as noted in this opinion, the statement of facts reflects the uncontroverted testimony of the defendant and his witnesses.

On March 18, 1986, the defendant, who lives in Wisconsin, received a telephone call from his then five-year-old son, who lived in Riverdale, Illinois, with his mother, the defendant’s ex-wife. The mother had been granted sole care, custody and education of the boy in the judgment for dissolution of marriage entered just over three years earlier in Cook County, Illinois. The defendant’s visitation rights were not delineated in the judgment, nor in a subsequent court order, but the defendant and the boy’s mother agreed between themselves to a visitation schedule. As indicated at the sentencing hearing, these visits included permitting the boy to visit his father in Wisconsin for his Easter vacation and during the summer.

In the telephone call, the boy indicated an urgent need to see his father and speak with him, telling him that his baby-sitter was screening his calls. That night the defendant, his present wife, and their children drove to Illinois, spending the night with the defendant’s sister in Carol Stream, Illinois. The following morning, the defendant arrived at his ex-wife’s house and asked to take the boy to breakfast. The child’s mother agreed that defendant could take the child, but she asked him to return the boy by noon so that their son could attend his afternoon kindergarten class. The defendant took the boy to the Carol Stream house.

The record does not disclose that the defendant asked any questions of the boy to determine the cause of his “urgent” long-distance telephone call the night before. However, when the boy was told that it was time to return home, he became agitated and wet his pants. Upon questioning by defendant’s wife, the boy told her that he did not want to return because of the way he was treated by his babysitters. He told her of an incident of sexual abuse by a previous baby-sitter, Ricky, and that his present baby-sitter, Irma pinched him on the arm and spanked him. The record does reflect that several months prior to the March 18, 1986, telephone call, and while the boy and his mother were living in a different town, the boy told his mother of the sexual abuse by Ricky and she immediately fired the baby-sitter.

The father reported the boy’s complaint to the Illinois Department of Children and Family Services (IDCFS). Testimony was conflicting as to when the report was made. An IDCFS investigator went to the defendant’s sister’s house and questioned the boy. In his IDCFS report, the investigator stated that after talking with the child he found sufficient evidence existed to warrant investigation into the allegation of sexual abuse. The investigator told the defendant that he should not return his son to the boy’s mother. Although the investigator’s report said that the boy would stay in Carol Stream until petition for change of custody was filed in divorce court, the defendant testified that he told the investigator that he and his family lived in Wisconsin and would return there after the paperwork was filed. The defendant testified that when he left for Wisconsin with the boy, it was with the knowledge of IDCFS and his attorney, but he admitted that it was without a court’s permission.

At no time was the child hidden from his mother. Although there is a discrepancy as to exactly when the defendant contacted the boy’s mother and as to what was said, there is no disagreement that within hours the defendant had contacted the boy’s mother to inform her that he would not return the boy. The mother subsequently called the defendant’s sister’s house where the defendant, the boy, and defendant’s family were staying. She testified that she went out to her sister-in-law’s home and found no one there. Other calls were made between the defendant and the child’s mother after the defendant, his family, and the boy returned to Wisconsin.

Shortly thereafter, the mother appeared in a Wisconsin court. She was informed that the Wisconsin Department of Children and Family Services (WDCFS) had custody of the boy and would not relinquish him to her. WDCFS returned the boy to the defendant. The record discloses that defendant attempted to enroll the child in school in Wisconsin. Some seven or eight weeks later the defendant returned to DuPage County, Illinois, for a hearing regarding child support payments and he was arrested and charged with child abduction. To free him his wife returned the boy to Illinois. IDCFS placed the boy with his maternal aunt until its investigation was completed. The DuPage County court subsequently returned the boy to the mother. Although the mother later indicated a desire to drop the charges, defendant was charged with child abduction. At a bench trial, he was convicted and sentenced to 30 months’ probation. The defendant appeals.

Defendant was charged under section 10 — 5(b)(1) of the Criminal Code, which defines the crime of child abduction as an act by a person who “[intentionally violates any terms of a valid court order granting sole or joint custody, care or possession to another, by concealing or detaining the child or removing the child from the jurisdiction of the court.” (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(1).) The defendant argues that he did not violate the custody decree because it does not prohibit him from taking the boy out of State.

The Criminal Code, section 10 — 5(b)(2), states a person commits child abduction when he or she “[ijntentionally violates a court order prohibiting the person from concealing or detaining the child or removing the child from the jurisdiction of the court.” Ill. Rev. Stat. 1987, ch. 38, par. 10-5(b)(2).

The record is clear that the defendant was charged under section 10 — 5(b)(1) and not under section 10 — 5(b)(2) and that he was found guilty under section 10 — 5(b)(1) because he removed the boy from the jurisdiction of the court which entered the valid court order granting sole custody to the boy’s mother.

Defendant argues as an affirmative defense to the charge that he was fleeing an incidence or pattern of domestic violence. (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(c)(3).) The State responds that because the defendant did not raise this affirmative defense at trial, or in the motion for a new trial, he cannot raise it on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, 227, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362; People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995, 999, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330, rehearing denied (1987), 481 U.S. 1025, 95 L. Ed. 2d 520, 107 S. Ct. 1915.) We agree.

The State argues that the prosecution did not raise the issue of domestic violence in the case in chief and that defendant waived opening argument and did not specifically state that he was raising an affirmative defense at trial. Defendant presented a written motion for new trial in which no mention of an affirmative defense was made. Defendant responds that although not specifically raised as an affirmative defense, the evidence established that the reason he took the child to Wisconsin was that he was fleeing an incidence or pattern of domestic violence.

In reply, the State argues that if this court finds the affirmative defense of fleeing an incidence of domestic violence was raised at trial, the evidence was clearly insufficient to support such defense. Defendant testified the child told him that his current baby-sitter spanked and pinched him and that his former baby-sitter, Ricky, had made him perform oral sex but that this incident had occurred several months prior to the March 18,1986, phone call to defendant.

The record in this case established that upon learning of the sexual abuse of the boy his mother immediately fired the accused baby-sitter. The evidence of spanking and pinching by Irma, the baby-sitter caring for the child in March 1986, was not found by the trial court to constitute domestic violence. In fact the record disclosed that IDCFS investigator Jack Strand found that this case appeared to be more a possible neglect case than an abuse case. Therefore, even if the defendant’s attempt to offer the affirmative defense that when he took the child he was fleeing an incidence of domestic violence is found by this court to have been raised at trial and therefore preserved for review on appeal, it is clear the trial court found the evidence insufficient to overcome its finding of defendant’s guilt.

The defendant also argues that the evidence at trial was not sufficient to establish that he had the requisite intent to commit child abduction. In finding the defendant guilty of child abduction, the trial judge stated that he did not “believe half of the things that” the defendant said in his testimony nor did he believe the testimony of the defendant’s wife. The trial court specifically found the defendant intentionally violated the law and intended to keep the child in Wisconsin in violation of the custody order.

This case thus turns on the credibility of the witnesses. Credibility of witnesses is determined by the trier of fact (People v. Byrd (1961), 21 Ill. 2d 114, 117, 171 N.E.2d 782, 783-84; People v. Richardson (1971), 132 Ill. App. 2d 712, 714, 270 N.E.2d 568, 570), and in a bench trial, this determination is reserved for the trial judge. People v. Byrd (1961), 21 Ill. 2d 114, 171 N.E.2d 782; People v. Tillis (1976), 40 Ill. App. 3d 66, 68, 351 N.E.2d 332, 334.

The trial court has a unique opportunity to observe the demeanor of the witnesses, assess their credibility, and determine any motivational factors bearing on truthfulness. (People v. Kradenych (1980), 83 Ill. App. 3d 547, 552, 404 N.E.2d 488, 493.) Because the reviewing court does not have the same opportunity, it should not substitute its judgment for that of the lower court unless this determination is “so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to defendant’s guilt.” (Kradenych, 83 Ill. App. 3d at 552, citing Tillis, 40 Ill. App. 3d at 68-69.) We find no basis here for disturbing the trial court’s determinations as to witness credibility.

Whether the IDCFS had the authority to instruct defendant not to return the child to his mother contrary to the divorce judgment giving sole custody to the mother is not raised in this appeal.

For all of these reasons, the decision of the court below is affirmed.

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.