author: MR. JUSTICE RYAN

text:
    (No. 53130.
    RUTH E. ZARLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (P. A. Bergner & Co., Appellee).

      Opinion filed March 18, 1981.

      Elmo E. Koos, of Peoria, for appellant.
    Arthur R. Kingery, of Strodel & Kingery, Assoc., of Peoria, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This workmen’s compensation case involves an appeal by the claimant, Ruth E. Zarley, from an order of the circuit court of Peoria County confirming a decision of the Industrial Commission. (See 73 Ill. 2d R. 302(a).) There is no dispute that the employee suffered an accidental injury arising out of and in the course of her employment with respondent, P. A. Bergner and Co. The only issue on appeal is whether the Commission’s findings as to the nature and extent of the injury are contrary to the manifest weight of the evidence.

Claimant worked as a pricing clerk in respondent’s warehouse. She struck her head in the right temple area on a metal frame suspended from an overhead monorail at work on June 3, 1977. As a result of this accident she suffered a concussion and post-traumatic headaches. The arbitrator awarded 46 5/7 weeks for temporary total disability, reserved ruling on permanent disability, as authorized by section 19(b) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)), and allowed $412.50 in unpaid medical expenses for services rendered to date by Dr. Frank Benningfield, a chiropractor. On review, the arbitrator’s decision was set aside and the Commission awarded 34 4/7 weeks compensation for temporary total disability, assessed permanency at 8% of the person as a whole, and retained the aribtrator’s order for the payment of $412.50 for Dr. Benningfield’s services even though his unpaid bill was in excess of $1,600 at the time of the hearing before the Commission. The circuit court of Peoria County confirmed the decision of the Commission. Claimant has appealed, insisting that the Commission cannot award compensation for some but not all of Dr. Benningfield’s treatments and that since the only additional medical evidence on review was the testimony of Dr. Benningfield, the Commission’s failure to adopt his “unrebutted” opinion that claimant is totally and permanently disabled was contrary to the manifest weight of the evidence.

We find that the Commission’s decision has ample support in the record and is not against the manifest weight of the evidence. Consequently, we affirm the circuit court.

While the number of medical reports renders this case confusing, we will attempt to summarize the findings and conclusions of the several doctors involved. On the day of the accident, claimant was taken to Proctor Community Hospital for emergency treatment, where X rays revealed no evidence of a skull fracture. She was sent home with instructions to take aspirin “as necessary.” On June 4, 1977, she contacted her family physician, Dr. Leonard Favus, complaining of headaches, dizziness, and lightheadedness. She was seen by Dr. Favus again on June 4, 7 and 10, each time with similar complaints. She was put on pain medication and told to “take it somewhat easy.” On June 16, 1977, claimant was admitted to the Methodist Medical Center by Dr. Favus, who felt she was suffering from a cerebral concussion with post-traumatic headaches. After several days of tests, which included a brain scan, Dr. Favus discharged the patient on June 21, 1977, concluding “[h] er brain scan and other findings are essentially normal and [it is] probably just a matter of time before she gets rid of her headaches.” The headaches persisted, and blurred vision of the right eye developed. Dr. Favus concluded in a letter dated September 9, 1977, that while the patient continued suffering post-traumatic headaches, no permanent disability would result.

Dr. Bruce Ehmke examined claimant in August of 1977. In a report dated August 9, 1977, Dr. Ehmke noted that the patient no longer complained of blurred vision and exhibited full range of motion of her neck. No reason to prevent her from returning to work was found. Dr. Ehmke was also of the opinion that claimant had suffered a mild concussion and that her post-concussion symptoms would clear up without permanent residual effects.

Dr. Jack Domnitz saw claimant in November 1977. Although pain and limited range of motion of the neck were found earlier, by November 29, 1977, physical therapy had restored the patient’s full range of motion and a return to work was authorized. Claimant worked on December 1, 2, and 5, but returned to Dr. Domnitz on December 12, 1977, complaining once again of headaches. The pain and stiffness in her neck returned following an automobile accident on December 23, 1977.

Dr. Domnitz referred claimant to Dr. Ernest Adams for evaluation and therapy. Dr. Adams noted that claimant “is also developing a traumatic anxiety tension state.” He concluded on February 1, 1978, that there appeared to be no reason why she should not be returned to work.

Dr. Lalit Savia, a neuropsychiatrist, examined the patient in February of 1978. His report concluded that she was capable of resuming her job while following a home therapy program suggested by Dr. Adams.

Claimant next sought the services of Dr. Frank Benningfield, a chiropractor. He examined the patient on February 10, 1978. After reciting his subjective and objective observations, his report concluded that she was totally disabled at that time and unable to perform even minimal household activities.

Based upon this evidence, the arbitrator made the award previously referred to. At the hearing before the Industrial Commission, Dr. Benningfield testified personally and at length concerning the treatments he had given and the numerous things that he found to be wrong with the patient’s spine. In response to questioning, Dr. Benningfield expressed the opinion that claimant was totally disabled as a result of her accident and that the disability had become permanent. Further, he felt that there was a causal connection between the accident on June 3, 1977, and the problems for which she was currently receiving treatment.

The determination of the nature and extent of an employee’s injuries arising out of and in the course of employment is a factual question to be determined by the Industrial Commission. (Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264, 270; Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479.) In making that determination, the Commission has original jurisdiction and may review all the evidence. Regardless of whether the Commission hears additional evidence, it is in no way bound to accept the findings of the arbitrator. (American Smelting & Refining Corp. v. Industrial Com. (1958), 13 Ill. 2d 275, 279-80; J. J. Grady Co. v. Industrial Com. (1970), 46 Ill. 2d 471, 473; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 239.) The findings of the Industrial Commission will not be disturbed unless contrary to the manifest weight of the evidence. Morgan v. Industrial Com. (1980), 82 Ill. 2d 524, 527; Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275.

In the case now before us, no less than five doctors reached the conclusion that claimant’s symptoms would clear without any permanent residual effects. Four of the six doctors testifying concluded that claimant could return to work. Dr. Benningfield was the only expert who was of the opinion that the patient was permanently and totally disabled. Claimant herself testified at arbitration that, while the headaches persisted, she was “starting to feel a lot better.” Clearly, a reasonable and therefore permissible inference to be drawn from this evidence is that the claimant has not suffered permanent and total disability. Permissible inferences will not be disregarded or set aside merely because other inferences might be drawn from the same evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236, 240.

We are not persuaded that the opinion of Dr. Benningfield overcomes the other evidence in this case merely because it was based upon the most recent examination of the claimant. The time of a medical examination is only one of a number of factors which the Commission may consider when evaluating the opinion of an expert witness. The Commission was not bound to accept the opinion of Dr. Benningfield to the exclusion of the other evidence. Dr. Benningfield’s testimony simply created a conflict in the opinions of the experts. It is primarily within the province of the Industrial Commission to resolve conflicting medical testimony. (National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, 54; Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293, 300.) Based upon all of the evidence we find that the decision of the Commission assessing the claimant’s loss as 8% of the person as a whole was not contrary to the manifest weight of the evidence.

A somewhat different problem is posed by the fact that the Industrial Commission cut off temporary total disability payments as of February 1, 1978, but allowed $412.50 for unpaid medical expenses incurred by reason of Dr. Benningfield’s treatment which began on February 10, 1978, and whose bill had reached this amount on April 24, 1978, the date of his last treatment of the claimant before the arbitrator’s hearing.

The arbitrator’s hearing concluded on April 26, 1978, and the arbitrator’s award for medical expenses and temporary disability was computed to April 27, 1978. Claimant contends that the failure of the Industrial Commission to continue temporary disability payments after February 1, 1978, while at the same time making an award for unpaid medical expenses incurred after that date renders its decision internally inconsistent and requires that it be reversed. We do not agree. In Quick v. Industrial Com. (1972), 53 Ill. 2d 46, this court affirmed the reversal of the Industrial Commission and the reinstatement of the arbitrator’s award where the Industrial Commission’s findings were logically inconsistent. In Quick, the Commission allowed temporary total disability payments for a period of time which included hospitalization for shoulder surgery allegedly necessitated by an industrial accident. However, no award was made for the cost of the surgery. This is a different situation from that present in our case where no temporary total disability was allowed but medical expenses were allowed for the disputed period. Our opinion in Quick stated:

“Having allowed the employee temporary total disability compensation for the period of time he was hospitalized for surgery, it was inconsistent for the Industrial Commission not to also allow the employee medical expenses for the surgery.” 53 Ill. 2d 46, 49.

The inconsistency referred to in Quick did not result from the mere fact that medical expenses were incurred during a period of temporary total disability. Rather, it arose because the Industrial Commission’s award for this period could only have been predicated upon a finding that the shoulder injury was compensable under the Act. In this context it was inconsistent to conclude that the claimant was not entitled to an award for treatment of a compensable injury.

In this case there is no similar inconsistency. Based upon the evidence, the Industrial Commission found that temporary total disability had ended on February 1, 1978, the date Dr. Adams stated that there was no reason why she should not return to work. Section 8(b) of the Workmen’s Compensation Act provides for payment of compensation where temporary total incapacity results from an injury. (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b).) In addition, an employee is also entitled to recover all medical expenses reasonably required to cure or relieve the effects of an industrial accident. (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) A finding of temporary total disability is not a prerequisite of an award for medical expenses under section 8(a). Employees often suffer injuries that require medical treatment but do not result in temporary total disability or which are required after the disability terminates.

As noted above, an employee is entitled to recover only those medical expenses which are reasonable and causally related to an industrial accident. In John v. Industrial Com. (1980), 81 Ill. 2d 145, this court held that the Commission’s denial of compensation for medical treatment given after the hearing at arbitration was not contrary to the manifest weight of the evidence where there was evidence from which the Commission could have concluded that the subsequent treatment was not causally related to the compensable injury. In this case the Commission apparently rejected evidence as to the need for further treatment introduced at the hearing on review, which consisted of testimony by claimant and Dr. Benningfield. The Commission may have been unwilling, however, to upset the $412.50 award for Dr. Benningfield’s services since it was based upon the testimony of claimant, the only “live” witness appearing at arbitration. This court has recognized that questions as to the credibility of witnesses are ordinarily best left in the hands of those who see and hear them testify, and that we can leave undisturbed the determination of the arbitrator and the Commission, who chose to believe the unimpeached and uncontradicted portion of claimant’s testimony which would support the award for medical expenses. (McDonald v. Industrial Com. (1968), 39 Ill. 2d 396, 403.) The arbitrator’s finding that Dr. Benningfield’s treatments totaling $412.50 were reasonably required to relieve the effects of the injury sustained on June 3, 1977, is supported by claimant’s testimony at arbitration that the treatments made her feel better. The fact that the Commission chose not to believe similar statements made concerning subsequent treatments does not require that the arbitrator’s earlier finding be rejected. As a result, the Industrial Commission’s decision with respect to the payment of $412.50 in unpaid medical expenses was not contrary to the manifest weight of the evidence and did not conflict with its other findings concerning disability. The judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 53610.
    WILLARD DEAN OSBORNE, Jr., a Minor, Appellee, v. VICTOR SPROWLS, Appellant.

      Opinion filed March 31, 1981.

      George R. Black, of Black & Black, of Morris, for appellant.
    Peter F. Ferracuti & Associates, of Ottawa (Eric B. Deobler, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a negligence action. Plaintiff, Willard Dean (Skip) Osborne, Jr., sued defendant, Victor Sprowls, for injuries sustained in a collision late in the afternoon on September 25, 1975. One count of the complaint alleged negligence, and a second count alleged wilful and wanton misconduct. The trial court dismissed the latter count on defendant’s motion for a directed verdict. The jury, empaneled in La Salle County, found for the plaintiff on the negligence count and assessed damages in the sum of $31,350. Defendant appealed, and a divided appellate court affirmed. (83 Ill. App. 3d 968.) We granted leave to appeal and we now affirm. The damage assessment is not at issue.

Plaintiff was 13 years old, stood between 4 feet, 8 inches, and 5 feet tall and weighed 80 to 85 pounds on the date of the incident at issue. He was in the eighth grade of the local junior high school. On September 25, 1975, he and about 15 classmates worked on a school homecoming parade float after school for about 30 to 45 minutes. After they were finished for that day, Laura Cronin, one of the eighth graders working on the float, invited her classmates to her house for a pizza party. Her invitation was readily accepted. Most of those in attendance proceeded to her home.

After their arrival at the Cronin home, a game of tackle the football began. This game is an amalgamation of football, keep away, and soccer. Players chase the carrier of the football, who runs with it until tackled or until the ball is thrown away. In the course of the game the ball may be thrown or kicked. The game was played often in Earlville.

The Cronin backyard extended west from their home approximately 70 yards to an unpaved, gravel-topped alley (running north and south). The house next door to the north, about 70 feet from the Cronin house, was owned by Donald Norton. The Norton backyard was 40 to 50 yards wide and also about 70 yards deep. The game was played in the Cronin and Norton backyards which adjoined. No formal boundaries marked the Cronin and Norton lots. A dirt pile, a picnic table, and a small tree were located about 30 yards west of the homes, and between them. The pile of dirt was 10 feet north of the picnic table; the small tree was 10 feet south of it.

The yard south of Cronin’s was considered out of bounds due to the inhospitality of the yard owner. According to one witness, the alley to the west of the backyards was also considered out of bounds, for safety reasons.

Defendant testified that he was 15 years old at the time of the incident. He then was 5 feet, 2 or 3 inches tall and weighed 130 pounds. He was a sophomore in high school and did not work on the float. He lived near the Cronin residence. He said he saw the eighth graders “playing around” with a football and that “they asked [him] if [he] wanted to play.” As this testimony was uncontradicted, he cannot be considered, as plaintiff suggested in oral argument, an interloper.

There were three disputed issues at trial: (1) where the tackle-the-football game was played; (2) what plaintiff and defendant were doing when they collided; and (3) where plaintiff and defendant collided. Regarding the first issue, Tim Slaughterback, plaintiff’s witness, testified that the game was not played near the dirt pile, picnic table, or small tree, but that the game was otherwise practically without boundaries. Defendant testified that the game was played near the picnic table and dirt pile but not near the small tree. Two witnesses for defendant testified that the game was played near the dirt pile, picnic table, and small tree.

Regarding the second issue, Tim Slaughterback and the plaintiff testified that plaintiff was sitting or crouching, not playing the game, when defendant collided with him. By their account, when they arrived at Cronin’s, the pizza was not ready. They played tackle the football for less than one hour. Then it was announced that the pizza was ready and the game ended. Plaintiff and Tim Slaughter-back went over near the picnic table for some potato chips, and were talking with two girls. Defendant and an unidentified person were seen playing catch with the football. Plaintiff had been sitting or crouching for five minutes when defendant, going out for a pass, ran him over, falling on plaintiff’s back, crushing his head and chest to the ground between his legs. Tim Slaughterback said “watch out” just before the collision, too late to allow plaintiff to get out of the way.

Defendant, however, related that plaintiff was hurt during the tackle-the-football game. By his account, plaintiff was trying to catch or pick up the football when defendant, trying to tackle him, hit him head on, causing the injuries. Two witnesses for defendant testified that plaintiff was injured after he had picked up the football during the game, was chased by defendant, and was caught and tackled from behind.

Dr. James Wilson testified that plaintiff’s injuries, a compression fracture of the LI and L3 vertebrae, were caused by a “pretty severe force.” He said the force causing the injury was “either a direct axio force straight down” or a “flexion” force bending plaintiff forward. Plaintiff’s father testified that he overheard defense counsel ask defendant “about the dirt pile in the Cronin yard” during a recess in the trial. Defendant’s response, according to plaintiff’s father, was “ T seem to remember him sitting there, but I wasn’t watching him, I was watching the ball.’ ” The credibility of one of the defendant’s occurrence witnesses was reduced when it was brought out, on cross-examination, that defendant, in a prior recorded statement, had quoted this witness as saying he was not present at the time of the collision. The credibility of the second defense occurrence witness was also reduced when he readily pointed out, on cross-examination, the place where plaintiff was tackled, because in a prior statement he had been unable to remember where the tackle happened. (On redirect examination, he said he marked only the general, not exact, location of the tackle.)

Regarding the third issue, plaintiff and Tim Slaughter-back related that plaintiff was sitting just to the southeast of the dirt pile, facing the picnic table, while seated or crouched, when defendant collided with him. One defense witness placed plaintiff near the dirt pile when he was tackled; the other and the defendant placed plaintiff further away from the dirt pile and picnic table.

The jury viewed a series of pictures which generally showed the backyard area of play. The occurrence witnesses diagramed their version of events for the jury in not-to-scale drawings. These exhibits are part of the record on appeal, have been examined, and support the summary of the evidence just rendered.

Defendant’s first contention on appeal is that the wilful-and-wanton-misconduct standard, rather than the negligence standard, should have been applied. It is true that our appellate court has held that participants in organized sporting events can only be held liable under that standard. (See Oswald v. Township High School District No. 214 (1980), 84 Ill. App. 3d 723; see also Stewart v. D. & R Welding Supply Co. (1977), 51 Ill. App. 3d 597; Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212.) There is a fundamental problem with this argument, however, since there was substantial credible evidence here that plaintiff was neither a participant in a game nor located within an area where a game was or could potentially be in progress. Thus we are not faced with a situation where the evidence necessarily indicates that the person injured was located outside the boundary of the game but otherwise within an area naturally encompassed by the game. The rival theories of where the game was played, whether plaintiff was participating, and where and how plaintiff was injured were squarely presented to the jury by opposing counsel. The jury evidently found plaintiff’s theory more credible. We need not, therefore, consider whether the appellate court cases cited above are correct. Instead, we merely hold that those cases on their own terms are inapplicable here.

The second argument advanced here is that defendant owed no duty of care to plaintiff to refrain from attempting to catch the football in the manner in which he did. It is true, as defendant argues, that the foreseeability of an occurrence does not ipso facto create a duty to take all measures necessary to prevent its occurrence. In Lance v. Senior (1967), 36 Ill. 2d 516, a leading case, plaintiff was a nine-year-old boy who suffered from hemophilia. His condition was known to defendants, and the complaint alleged that, while he was an overnight guest in defendants’ home, the defendants negligently permitted and allowed him to play with a needle which got into plaintiff’s throat and was thereafter sucked into the inner part of plaintiff’s lung. This court held that the complaint was properly dismissed by the trial court, noting that “whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” (36 Ill. 2d 516, 518; see also Turkington, Foreseeability and Duty Issues in Illinois Torts; Constitutional Limitations to Defamation Suits Under Gertz, 24 De Paul L. Rev. 243, 254-55 (1975).) The court held that the risk that a nine-year-old boy would swallow or ingest a needle was minimal. Nor did the allegation that defendants knew of plaintiff’s condition lead to a contrary result, for it suggested that plaintiff would have been taught to guard against the special hazards to which he was subject. Finally, the burden of imposing such a duty on defendants would be a heavy one, requiring “intimate and constant surveillance.” 36 Ill. 2d 516, 519. See also Mieher v. Brown (1973), 54 Ill. 2d 539, 544-45; Barnes v. Washington (1973), 56 Ill. 2d 22, 29; Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 99; Cunis v. Brennan (1974), 56 Ill. 2d 372, 375-78.

Applying that analysis here, we find that defendant owed plaintiff a duty. The burden of selecting an area of play free from the presence of nonparticipating individuals was particularly slight in this case, for there was more than a sufficient area to play catch with a football away from the picnic table area. Defendant introduced no evidence that he was playing in an appropriate area of the yard but was led out of that area by an errant pass. It is not only foreseeable, but even likely, that an individual, with his eye on a football being passed to him, running in an area congested with nonparticipants, will run into and injure one or more of them. Under the facts here, defendant should have known this. Finally, the magnitude of the harm which can be caused by an older and stronger and heavier person running into or over a younger and smaller person renders this case particularly appropriate to warrant the imposition of a duty of care.

The remaining issues, then, are whether the jury could properly have determined that defendant breached his duty to act with reasonable care, whether that breach caused plaintiff’s injury, and whether plaintiff was free from contributory negligence. The evidence here, considered under the Pedrick test (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; see Bauer v. Johnson (1980), 79 Ill. 2d 324, 332-33), supports the jury determination on these issues. The jury here could reasonably conclude that plaintiff was sitting or crouching in an area understood to be inappropriate for playing catch with a football. It could further conclude that plaintiff was reasonable in sitting or crouching there and that defendant unreasonably decided to go out for a pass in that area. The known presence of potato chips on the picnic table and nonparticipants in that vicinity gives rise to the reasonable inference that defendant should have known to stay clear of that area while playing. Finally, it could conclude that plaintiff was not participating in the game when he was hurt, and that he was in an area which he could reasonably assume was safe from football activity. We have examined the authorities cited by defendant, and they do not persuade us that the foregoing analysis is unsound. No argument was presented as to causation.

Defendant has purportedly accepted, for purposes of the appeal, plaintiff’s version of the facts, in arguing that he is not liable. He has argued in effect that he was reasonably playing catch and that keeping one’s eye on the ball in such a situation is not negligence. It is evident, however, that defendant presented a vastly different theory at trial, where he contended that plaintiff was a participant in a boundaryless game when he was injured. In proceeding on that theory at trial, defendant did not present evidence which would permit us to accept plaintiff’s theory of the case but nevertheless conclude that defendant was acting reasonably. For example, defendant introduced no evidence that he was reasonably playing catch, after the tackle-the-football game, in an appropriate area of the yard, and the evidence introduced by plaintiff would lead to the drawing of conflicting inferences on that question. Acceptance of defendant’s argument here, therefore, would require this court to reweigh the evidence based upon defendant’s new theory on appeal, when the jury has had no opportunity to do so, and in the absence of supporting evidence of defendant’s reasonable care. While we will not hesitate to reverse a verdict unsupported by the evidence, here the jury apparently regarded defendant’s theory of the case and his testimony as uncandid, and was given no other exculpatory evidence. Under these circumstances, the rule prohibiting the presentation of a new theory on appeal comes into play. People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147; Brown v. Lober (1979), 75 Ill. 2d 547, 556.

Sports are important, as both parties acknowledge. This court does not desire to frustrate “youth at play.” But the social interest in encouraging such activity cuts both ways, for plaintiff here was seriously injured and was unable to participate in sporting activity for at least a year and was required to wear a back brace for six months.

Clearly, it may be negligent to play in areas inappropriate for such activity. It may also be negligent to sit inattentive in an area where a game is being played. We cannot reverse the verdict here, because the jury clearly resolved conflicting evidence and determined that plaintiff’s actions were reasonable and that defendant’s were not. Therefore the judgment is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (Nos. 53296, 53698 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EVERETT JUNIOR CONOVER, Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN JONES, Appellant.

      Opinion filed March 31, 1981.

      Robert Agostinelli, Deputy Defender, and Thomas A. Lilien and Stephen Omolecki, Assistant Defenders, of the Office of State Appellate Defender, of Ottawa, for appellant Everett Junior Conover.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and Maureen Cain, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and Maureen Cain, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Stephen Omolecki and Peter A. Carusona, Assistant Defenders, of the Office of State Appellate Defender, of Ottawa, for appellant John Jones.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the first of two cases, consolidated on this appeal, defendant, Everett Junior Conover, was convicted in the circuit court of Hancock County of burglary and sentenced to a six-year term of imprisonment. In the second case, defendant, John Jones, was convicted in the circuit court of Rock Island County of theft of property having a value in excess of $150 and placed on three-year probation. His probation was revoked following proof that he had knowingly obtained unauthorized control over currency from another person. He was then sentenced to a five-year term of imprisonment. In both cases, the appellate court affirmed. People v. Conover (1980), 83 Ill. App. 3d 87; People v. Jones (1980), 85 Ill. App. 3d 1200 (order under Supreme Court Rule 23).

There is but one question to be resolved: Can the proceeds taken by a defendant convicted of either the offense of burglary with intent to commit theft or the offense of theft be considered as an aggravating factor under the Unified Code of Corrections (Code), section 5 — 5—3.2 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2)?

In Conover, the trial court cited defendant’s prior record, the need for deterrence, and the defendant’s receipt of compensation in the form of the burglary’s proceeds as aggravating factors. The six-year sentence was one year under the maximum. In Jones, the trial court considered the defendant’s prior record, the violation of defendant’s position of public trust, the need for deterrence, and the defendant’s receipt of compensation from the original theft in imposing the maximum five-year prison sentence.

Section 5 — 5—3.2(a) of the Code provides:

“The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1:
***
(2) the defendant received compensation for committing the offense.” Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2.

The State argues that the statutory language includes receiving the proceeds of an offense. Under this interpretation, any crime from which the defendant obtains proceeds would be subject to this aggravating factor. Defendants, on the other hand, argue that the statutory language refers to crimes that an offender has been hired to commit. They contend that if receipt of proceeds constitutes a factor in aggravation, then in most burglaries and in every theft a greater penalty than that intended by the specific statutes can be imposed.

As recognized by the appellate court and by all parties concerned, there is a paucity of law aiding in the understanding of what is meant by the term “compensation” in the instant statute. We believe, however, that this court’s recent decision in People v. Brownell (1980), 79 Ill. 2d 508, has application to this case. In Brownell, the trial court relied on two aggravating factors in sentencing the defendant: (1) Defendant intentionally murdered his victim in the course of two other felonies and (2) the victim was an eyewitness or possessed other material evidence against defendant as the subject of a kidnapping and rape. The court concluded that the General Assembly did not intend to apply the second factor in aggravation to an offense that occurred in the course of the commission of murder, and stated:

“[Wjere we to adopt the trial court’s finding, this aggravating factor could apply in every prosecution for murder where another offense contemporaneously occurs because the victim could have been a witness against the defendant. Or, even more broadly, this aggravating factor could apply to every prosecution for murder since every victim, obviously, is prevented from testifying against the defendant. We do not think the General Assembly intended the death penalty to be applied in every murder case, and, if it did, the General Assembly could certainly find a more direct way to express its intent than through this aggravating factor.” 79 Ill. 2d 508, 526.

The State attempts to distinguish Brownell from the instant case on the basis that the aggravating factor discussed in Brownell applied only in sentencing for murder, while the sentencing statute in this case is generic in nature and applies to all violations of the Criminal Code of 1961 (Criminal Code). Although the State’s observation is correct, its conclusion is inconsistent with the reasoning underlying Brownell. Just as this court determined in Brownell that a factor necessarily implicit in every murder should not be utilized as an aggravating factor, we believe that a factor implicit in most burglaries and every theft should not be used as an aggravating factor at sentencing.

The State, in oral argument, contends that if the legislature had intended the statute to apply only to offenses one was hired to commit, the language could have been made more specific as was done in section 9 — 1(b)(5) of the Criminal Code, under factors in aggravation for the offense of murder. (See Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(5).) Section 9 — 1(b)(5) applies only to one who may be sentenced to death after the State has sought the death penalty following a murder conviction. That section does not apply to any other offenses, nor does it use the term “compensation.” The presence of the language in the death-sentencing provision is not inconsistent with interpreting “compensation for committing the offense” in the general sentencing provision of section 5 — 5—3.2(a)(2) as referring to offenses where one was hired to commit a crime. Further, the phrase in the statute at issue does not merely state “compensation” but “compensation for committing the offense.” If one substitutes the appellate court’s definition of “payment” for the term “compensation,” the provision refers to “payment for committing the offense.” This suggests some kind of agreement or contract and implies that it was something other than the proceeds taken in the commission of the offense.

The legislature has established the range of penalties to be imposed in burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1) and in theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1) in those specific sections. Inasmuch as most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties. If the General Assembly had intended that proceeds be utilized again to impose a more severe penalty for those offenses, such intent would be more clearly expressed. Consequently, we believe receiving compensation for committing the offense under the statute applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime. It is reasonable to conclude that, just as it did in allowing the death sentence for one who is hired to commit murder, the legislature intended to impose a harsher sentence on one who is paid to commit a burglary or theft than on one who commits it on his own volition. As the State recognized, the statute at issue is general in nature and applies to all violations of the Criminal Code. We hold that section 5 — 5—3.2(a)(2) of the Unified Code of Corrections may be considered as a factor in aggravation only when one is remunerated, as explained above, to commit an offense, whether the offense is burglary or theft, where proceeds may be taken, or the crime is one that does not involve proceeds, e.g., aggravated battery.

Inasmuch as the trial court in each case improperly considered defendant’s taking of proceeds as an aggravating factor in sentencing and because we cannot determine how much weight that factor was accorded, both cases must be remanded for reconsideration of the sentences. In light of this holding, it is unnecessary to address defendant Jones’ second argument that the trial court abused its discretion in not considering mitigating factors and in imposing the maximum sentence.

For the reasons stated, the judgments of the appellate court are reversed; the sentence of Everett Junior Conover is vacated and the cause is remanded to the circuit court of Hancock County for a new sentencing hearing; the sen-ten ce of John Jones is vacated and the cause is remanded to the circuit court of Rock Island County for a new sentencing hearing.

Judgments reversed; sentences vacated; causes remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD,

text:
    (No. 53403.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DONALD DUDA et al., Appellees.

      Opinion filed March 31, 1981.

      UNDERWOOD and RYAN, JJ., dissenting.
    William J. Scott and Tyrone Fahner, Attorneys General, and J. William Roberts, State’s Attorney, all of Springfield (Gary J. Anderson, Robert J. Biderman and Larry Wechter, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Howard M. Richard, of Katten, Muchin, Zavis, Pearl & Galler, and Harvey Grossman and Roger Baldwin, all of Chicago, David Goldberger, of Columbus, Ohio, and Michael B. Metnick, of Springfield, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of Sangamon County, defendants, Donald W. Duda, Daniel James Norris, Timothy Kiser, Paul Evan Haynes and Peter K. Callahan, were convicted of the offense of criminal trespass to State-supported land (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 5) and sentenced to the Sangamon County jail for two days. The appellate court reversed (82 Ill. App. 3d 525), and we allowed the People’s petition for leave to appeal.

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues. The complaints by which defendants were charged alleged that on September 3, 1978, each defendant “committed the offense of criminal trespass to state supported land in violation of Section 21 — 5 of chapter 38 of the Illinois Revised Statutes, in that the said defendant entered upon land, the grounds of the State House of the State of Illinois, located in Springfield, Sangamon County, Illinois, and remained upon the land after receiving notice from [a named] representative of the Secretary of State of the State of Illinois, and thereby interfered with the Illinois Secretary of State’s lawful use of such land, to-wit: His legal duty to take charge of and preserve from waste and keep in repair such land, which land is supported in part with State of Illinois funds.”

At trial, testimony showed that defendant Duda had sought permission to hold a demonstration on the Capitol grounds on September 3, 1978, advocating repeal of marijuana laws. Notwithstanding a denial of permission, beginning at about 11:30 a.m., a crowd of 250 to 300 demonstrators gathered on the Capitol grounds. A number of witnesses testified for the People as to the conduct of the demonstrators and the events leading up to the arrest of defendants. At about 11:30 a.m. two males were observed striking the Capitol’s replica of the Liberty Bell with wood and metal objects. They were told to desist and did so. With the exception of this incident, it appears that the demonstration remained orderly until sometime after 1 p.m. Thereafter, consumption of alcoholic beverages and some drunkenness became evident. One witness observed 16 demonstrators sitting in a tree. This was confirmed by other witnesses, and there was testimony concerning broken tree branches resulting from the incident. In general, the demonstration became “noisy,” some signs were tom down, and the Capitol grounds became littered with beverage containers, paper sacks, and other debris.

At 2 p.m. officials from the Secretary of State’s office conferred and determined that the demonstration should end at 3 p.m. Defendant Duda and other demonstrators were advised of this decision and Duda, using a megaphone, informed the crowd. Officials of the Secretary of State’s office also announced the termination of the demonstration and informed the crowd that refusal to leave could result in arrest. At approximately 3:30 p.m. a crowd-control team of 150 officers was called onto the grounds. The crowd was twice advised to leave the area. Officers then moved in to disperse the demonstration. At this time, after refusing to depart, defendants Duda, Norris, Callahan, and Kiser were arrested. At approximately 4:45 p.m. some demonstrators returned to the Capitol grounds. They were asked to leave several times, then a second sweep of the grounds was conducted, at which time defendant Haynes, after refusing to depart, was arrested. Lance Charlson, a lieutenant with the Division of Investigation, Secretary of State’s office, testified that defendant Duda, in addition to passing on to the crowd the official directive to disperse, asked the crowd “Should we leave or should we stay? Should we sit down for our rights and stay here,” whereupon the crowd began to chant. Lieutenant Charlson also testified that defendants Norris and Callahan, just prior to being arrested, locked arms with nearby demonstrators. With regard to defendant Norris, Lieutenant Charlson testified that he “encouraged other persons around him to hold onto him, intertwine arms and sit down on the ground.” He testified that defendant Callahan “encouraged other participants in the area to detract from our efforts to remove him from the crowd ***.”

Section 21 — 5 of the Criminal Code of 1961 provides, in pertinent part:

“(a) Whoever enters upon land supported in whole or in part with State funds, or Federal funds administered or granted through State agencies or any building on such land, after receiving, immediately prior to such entry, notice from the State or its representative that such entry is forbidden, or remains upon such land or in such building after receiving notice from the State or its representative to depart, and who thereby interferes with another person’s lawful use or enjoyment of such building or land, commits a Class A misdemeanor.” Ill. Rev. Stat. 1977, ch. 38, par. 21-5 (a).

Defendants concede that the evidence proves the first two elements of the offense of criminal trespass to State supported land: that they received proper notice to depart and that they remained after such notice. The question presented is whether the People have proved beyond a reasonable doubt that each defendant “thereby interfered] with another person’s lawful use or enjoyment of such building or land.”

The People contend that defendants’ “refusal to depart resulted in a continuance of temporary damage to the grounds, thereby interfering with the statutory duty of the Secretary of State to preserve the area from physical damage.” Citing the duties imposed upon the Secretary of State by section 5 of the Secretary of State act (Ill. Rev. Stat. 1977, ch. 124, par. 5(7)), the People argue that “Defendant’s conduct in refusing to depart the grounds and in encouraging others to remain in their places, while the crowd continued to scar the Liberty Bell replica, and threaten further damage by virtue of their increased alcohol consumption, interfered with the Secretary’s use and enjoyment of the grounds.”

In rejecting this contention the appellate court said:

“We cannot agree. Simply stated, we do not feel that this is the type of interference that the legislature had in mind when it drafted the statute. The words ‘lawful use or enjoyment,’ given their plain meaning, are clearly not broad enough to encompass the duty to maintain.” 82 Ill. App. 3d 525,529.

We need not and do not decide whether the appellate court correctly construed the statute for the reason that, even if the interpretation for which the People argue is correct, the evidence is insufficient to sustain defendants’ convictions.

Citing Washington Mobilization Committee v. Cullinane (D.C. Cir. 1977), 566 F.2d 107, the People contend that defendants’ refusal to leave the State House grounds after receiving notice to leave is sufficient to sustain the convictions under section 21 — 5. Cullinane involved a challenge to a section of the District of Columbia Code providing for punishment for refusal to depart an area when ordered to do so by police. The court of appeals upheld the validity of the statute even though the persons ordered to disperse had not previously engaged in violent or obstructive behavior.

The People argue:

“Likewise, in the present case, even though the defendants were not proven to have engaged in the conduct which prompted the order to disperse, they were nevertheless obligated to obey the police order. *** The aim of the statute is to prevent disorders from the failure of persons to accommodate police notice to depart, an aim which could be thwarted if police were required only to remove those persons responsible for the initial disturbance. Police cannot be burdened with such fine distinctions when called upon to enforce their orders ***.”

We find Cullinane inapposite for the reason that the statute involved differed markedly from that considered here.

A conviction under section 21 — 5 requires proof of three elements: (1) notice to depart, (2) remaining after such notice, and (3) interference with another person’s lawful use or enjoyment of land. Acceptance of the People’s argument that “refusing to depart the grounds” is sufficient to support the convictions would, in effect, merge the third element into the second and render the third element surplusage. It is axiomatic that each provision of a statute must, if possible, be given some reasonable meaning (People v. Warren (1977), 69 Ill. 2d 620, 627) and that no word, clause, or sentence should unnecessarily be rendered meaningless or superfluous (People v. Lutz (1978), 73 Ill. 2d 204, 212). To hold that proof of a mere refusal to depart suffices to demonstrate interference with another person’s lawful use or enjoyment of land would ignore the plain language of section 21 — 5, and we decline to do so.

We agree with the appellate court that the record shows no interference with any official activity or public access to the grounds. The demonstration took place on a Sunday afternoon, during a holiday weekend, and the State House was closed. There is no evidence that grounds keepers or other personnel were delayed or interfered with in the performance of their duties. In short, the manner in which defendants’ conduct was supposed to have interfered with the Secretary of State’s performance of his duties was not alleged in either the complaints or bills of particulars or shown by the evidence. We have considered People v. Barnett (1972), 7 Ill. App. 3d 185, cited by the People in support of their argument that “the requisite interference with the rights of others need not be immediate or coincide with the physical presence of other persons.” There, the defendant and about 40 others entered a University of Illinois Circle Campus building late in the afternoon of May 6, 1970, remained past the normal closing time, and locked themselves behind a steel door. The appellate court did not expressly address the question whether the elements of section 21 — 5 were met, but instead dealt with constitutional issues. Further we find Barnett factually distinguishable on the question of implied interference. Here the demonstration was outside, did not occur during business hours, and did not involve locking doors or barricading.

The People also argue that defendant Duda’s “encouraging” the crowd to remain and the other defendants’ linking of arms constituted proof of interference. Initially, we observe that no evidence suggests that defendants encouraged or fostered any criminal activity other than the refusal to obey a lawful police order to depart. Inasmuch as we have concluded that proof of a refusal to depart does not itself suffice to demonstrate interference, then ipso facto the encouragement of others to so refuse does not constitute proof of interference under section 21 — 5.

Because of our determination that the People have not proved a violation of section 21 — 5 of the Criminal Code of 1961, we find it unnecessary to consider defendants’ contentions regarding the constitutionality of that section.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

Defendants, the appellate court, and a majority of my colleagues concede that defendants not only held their “smoke-in” on the Capitol grounds after being refused permission to do so, but also refused when later requested to leave after occupying the grounds for three to four hours. Their convictions are reversed, however, because they were not “interfer[ing] with another person’s lawful use or enjoyment” of the grounds. (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 5(a).) This is said to be so despite undisputed testimony that some of the group led by defendant Duda were drunk, others littering the grounds, striking the liberty bell replica with wood and metal objects, sitting in trees and breaking tree branches, and still others were linking arms and sitting or lying down so as to impede their removal. The appellate court said this conduct did not constitute “permanent” interference, but only created a “temporary eyesore,” but I find no statutory requirement that the interference with lawful use or enjoyment be permanent. Nor does it seem to me the General Assembly could have intended to permit interference so long as it was something less than permanent.

My colleagues justify their reversal of the convictions because the record shows “no interference with any official activity or public access to the grounds.” (84 Ill. 2d at 412.) It seems to me, however, quite clear that the conduct of these defendants constituted a plain and immediate interference with the duty of the Secretary of State to preserve and protect the Capitol grounds. (Ill. Rev. Stat. 1977, ch. 124, par. 5(7).) Certainly we need not ignore the obvious fact that enjoyment of the normally attractive Capitol grounds by passing pedestrians or motorists was diminished by the accumulated litter. And to say that the presence of 150 law-enforcement officers attempting to remove several hundred reluctant demonstrators does not interfere with or inhibit to any degree the public’s right to use and enjoy the Capitol grounds and the Secretary’s duty to preserve and protect them is a dissembling exercise which I cannot join.

I would affirm the judgments of conviction.

MR. JUSTICE RYAN joins in this dissent.


author: MR. JUSTICE SIMON

text:
    (No. 53289.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT HOUSBY, Appellant.

      Opinion filed March 31, 1981.

      RYAN, J., took no part.
    Robert Agostinelli and Thomas Lilien, of the Office of State Appellate Defender, of Ottawa, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Marsha Freidl, Assistant Attorney General, of Chicago, of counsel), for the People.
   MR. JUSTICE SIMON

delivered the opinion of the court:

In this appeal the court is concerned with the perplexing problems caused by the use of presumptions in criminal cases. Presumptions and inferences are evidentiary substitutes for the facts inferred. For that reason, instructions to a jury that it can infer an ultimate fact from a proved fact frequently raise due process objections. The thrust of these objections is that the presumption takes the place of strict proof of the elements of the offense, each of which must be established beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072-73.

Such an instruction (Illinois Pattern Jury Instructions, Criminal, No. 13.21 (1968)) (hereinafter IPI) was given at defendant Robert Housby’s trial in the circuit court of La Salle County on charges of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1) and theft (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)). He was convicted of both offenses. A divided appellate court affirmed. (82 Ill. App. 3d 537.) The instruction read:

“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”

Housby’s brief concedes that the evidence tends to show that he dealt with stolen property, and that this would sustain his conviction for theft. (People v. Marino (1970), 44 Ill. 2d 562, 576.) But he attacks his burglary conviction, attributing it to the instruction. He contends the instruction mandated the jury to draw an inference which deprived him of due process and compelled a verdict of guilt. Relying on County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d Ill, 99 S. Ct. 2213, Housby argues that the instruction undermined the fact finder’s sole responsibility to find the ultimate facts and diluted the State’s burden to prove the defendant guilty beyond a reasonable doubt.

Housby’s objection to this instruction requires a reevaluation and updating of Illinois decisions allowing the finder of fact to infer guilt from a defendant’s exclusive possession of recently stolen property when no reasonable explanation has been advanced for the possession. Reexamination of these decisions is called for by County Court and Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, the most recent United States Supreme Court decisions dealing with the use of presumptions in criminal cases, and their antecedents, Tot v. United States (1943), 319 U.S. 463, 87 L. Ed. 1519, 63 S. Ct. 1241, and Leary v. United States (1969), 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532. These decisions established the following guidelines to protect against due process violations in criminal cases where presumptions are applied.

When the presumption is mandatory, that is, where the fact finder is not left free to apply or reject the inference, County Court applies the strictest standard and gives the defendant the most complete protection. When the fact finder is compelled to rely upon the presumption, the inferred fact must flow beyond a reasonable doubt from the established fact. 442 U.S. 140, 166, 60 L. Ed. 2d 777, 797, 99 S. Ct. 2213, 2229.

Where the inference is only permissive, that is, where the fact finder is given the option of ignoring or relying upon the inference (442 U.S. 140, 157, 60 L. Ed. 2d 777, 797, 99 S. Ct. 2213, 2224), County Court prescribes a less stringent standard. The test for dealing with a permissive presumption is derived from Tot v. United States, which required as a minimum that there be a “rational connection” between the facts proved and the facts presumed (319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1245), and from Leary v. United States, which promulgated the following standard:

“[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (395 U.S. 6, 36, 23 L. Ed. 2d 57, 82, 89 S. Ct. 1532, 1548.)

County Court combined the Tot and Leary tests stating:

“The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States [(1943), 319 U.S. 462, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1245], and restated in Leary v. United States [(1969), 395 U.S. 6, 36, 23 L. Ed. 2d 57, 81, 89 S. Ct. 1532, 1548]. For there is a ‘rational connection’ between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is ‘more likely than not to flow from’ the former. 442 U.S. 140, 165, 60 L. Ed. 777, 797, 99 S. Ct. 2213, 2229.

The County Court decision supplemented the application of this less stringent test for permissive inferences with the requirement that the inference be supported by corroborating evidence of guilt. (442 U.S. 140, 167, 60 L. Ed. 2d 777, 798, 99 S. Ct. 2213, 2229-30.) A permissive inference may always be rejected by the fact finder if it chooses to ignore it, and where there is corroborating evidence, the permissive inference is not the sole and sufficient basis for a finding of guilt. It is unnecessary therefore to establish that the inference follows beyond a reasonable doubt from the proved fact, for while it is necessary to prove the elements of an offense beyond a reasonable doubt, that may be done by resort to all the evidence, including the permissive inference. But, where the permissive inference stands unsupported by corroborating circumstances, the leap from the proved fact to the presumed element must satisfy the higher standard — proof beyond a reasonable doubt — for there is nothing else on which to rest the fact finder’s verdict of guilt. 442 U.S. 140, 159, 167, 60 L. Ed. 777, 793, 798, 99 S. Ct. 2213, 2225-26, 2229-30.

Several Illinois decisions have dealt with the type of presumption challenged in this case. In general, they have stated that the inference arising from possession of recently stolen property without reasonable explanation is sufficient to sustain conviction in the absence of other facts and circumstances which leave a reasonable doubt of guilt in the mind of the trier of fact. (People v. Panus (1979), 76 Ill. 2d 263, 269-70; People v. Stock (1974), 56 Ill. 2d 461, 475; People v. Taylor (1962), 25 Ill. 2d 79, 81; People v. Pride (1959), 16 Ill. 2d 82, 89; People v. Bennett (1954), 3 Ill. 2d 357, 363; People v. Sampson (1929), 337 Ill. 643, 650; Williams v. People (1902), 196 Ill. 173, 178; Smith v. People (1885), 115 Ill. 17, 21.) These decisions preceded County Court and did not consider the principles announced in that opinion or in Leary or Tot to safeguard against due process violations when presumptions are relied upon. In only one opinion, People v. Whittaker (1970), 45 Ill. 2d 491, has this court referred to the Tot “rational connection” test or the Leary “more likely than not” test. But in Whittaker the court offered no explanation as to how the tests were satisfied. Moreover, the objection interposed to the instruction in ,Whit-taker was on self-incrimination rather than due process grounds. 45 Ill. 2d 491, 497.

The Illinois rule that the recent and exclusive possession of items stolen in a burglary, without reasonable explanation, gives rise to an inference that the possession was obtained by burglary has been justified by the “inherently strong probability” that the inference is accurate. (45 Ill. 2d 491, 497.) The inference has been used by Illinois courts to prove the burglar’s identity and the intent to commit a felony or theft. (People v. Panus (1979), 76 Ill. 2d 263, 270.) Yet, while there may be a strong probability that the inference is accurate, this does not mean it is “more likely than not” true that the possessor of the property is the burglar. Although the inference has a long history of use in this State going back to at least 1885 (Smith v. People (1885), 115 Ill. 17), no court opinion has yet pointed out why it is more likely that the possessor is the burglar instead of one who received stolen property or simply joined the burglar after the crime had been committed. In Smith, for example, the court simply said:

“The same person that committed the larceny no doubt committed the burglary ***.” (Emphasis added.) (115 Ill. 17,21.)

Expressions of certainty or long historical practice are not acceptable substitutes for reasoned explanations of why the presumed fact more likely than not flows from the proved fact. (See Barnes v. United States (1973), 412 U.S. 837, 843-44, 37 L. Ed. 2d 380, 386-87, 93 S. Ct. 2357, 2362.) The analysis provided by past Illinois decisions clearly does not satisfy the County Court test.

To the extent that past Illinois decisions have held that exclusive and unexplained possession of recently stolen property is sufficient, standing alone and without corroborating evidence of guilt, for conviction of burglary, those decisions, in the light of the United States Supreme Court holding in County Court, can no longer be applied, even when the inference is regarded as permissive. The presumption standing alone does not prove burglary beyond a reasonable doubt. The person in exclusive possession may be the burglar, to be sure, but he might also be a receiver of stolen property, guilty of theft but not burglary, an innocent purchaser without knowledge that the item is stolen, or even an innocent victim of circumstances.

Our treatment of previous Illinois decisions on this subject is mandated by due process requirements and is consistent with the law of other jurisdictions. Many other States apply a similar presumption only in conjunction with other facts and circumstances which corroborate the defendant’s guilt. See State v. Pepperling (1974), 166 Mont. 293, 533 P.2d 283; State v. Lewis (Iowa 1976), 242 N.W.2d 711; State v. Searle (La. 1976), 339 So. 2d 1194; Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381; People v. Porter (1977), 56 App. Div. 2d 583, 391 N.Y.S.2d 1002; Commonwealth v. Simmons (1975), 233 Pa. Super. 547, 336 A.2d 624; People v. Rankin (1974), 52 Mich. App. 130, 216 N.W.2d 620; People v. Robinson (1974), 41 Cal. App. 3d 658, 116 Cal. Rptr. 455; Williams v. Commonwealth (1952), 193 Va. 764, 71 S.E.2d 73; Rayla v. Commonwealth (Ky App. 1973), 495 S.W.2d 506; State v. Cook (1972), 187 Neb. 788, 194 N.W.2d 218; State v. Heim (1971), 83 N.M. 260, 490 P.2d 1233; State v. Brookshire (1971), 107 Ariz. 21, 480 P.2d 985; Jones v. State (Okla. Crim. App. 1970), 468 P.2d 805; State v. Kirkman (1967), 20 Utah 2d 44, 432 P.2d 638.

But if the presumption may not be used alone, may it still be used in conjunction with other circumstantial evidence of guilt provided it is a permissive presumption which leaves the fact finder free, as County Court put it (442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224), to accept or reject the inference? Applying the analysis set forth in County Court, the inference used here did not infringe upon Housby’s due process rights if: (i) there was a rational connection between his recent possession of property stolen in the burglary and his participation in the burglary; (ii) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (iii) there was evidence corroborating Housby’s guilt.

In determining whether presumptions comported with due process in Leary as well as in Turner v. United States (1970), 396 U.S. 398, 24 L. Ed. 2d 610, 90 S. Ct. 642, statutory presumptions were examined in the light of empirical evidence relating to their accuracy. In Barnes, where no such evidence was presented, the court eschewed empirical data and looked only to “common sense and experience” as demonstrating the accuracy of the presumption. (412 U.S. 837, 845, 37 L. Ed. 2d 380, 387, 93 S. Ct. 2357, 2363.) In County Court, where again empirical data was not presented, the court examined the corroborating evidence for the presumption’s accuracy in general. (442 U.S. 140, 163, 60 L. Ed. 2d 777, 795-96, 99 S. Ct. 2213, 2227-27.) No empirical evidence of the accuracy of the presumption relied on in this case has been presented. Based on an examination of the instruction and nothing more, it is not possible to conclude that it is more likely than not true that Housby was the burglar. Viewing the instruction from the perspective of the other evidence in the case, however, we can say that it is more likely than not that Housby was a participant in the burglary.

The evidence against Housby with respect to burglary is entirely circumstantial. He was observed in possession of recently stolen property in the course of an intense police surveillance on the evening of May 20, 1977. He was first seen between 10:15 p.m. and 10:30 p.m. by police who were staking out the home of Clifford Evelhoch in Spring Valley. When he first came to the attention of the police, Housby was a passenger in a pickup truck driven by Raymond King which stopped at Evelhoch’s home. Housby and King took a vacuum cleaner and clock radio out of the truck and into the house, and Evelhoch’s wife began to use the vacuum. These items had been stolen in a burglary at the farm of Wilbur Heister in Tónica earlier that evening. The burglary occurred between 7 p.m. when Heister left the farm and the time Housby and King were seen with Heister’s property, although Heister did not discover the burglary until he returned to his farm at about 10:30 p.m. Heister testified to the fact of the burglary and identified the items that were taken. These facts are sufficient to establish a rational connection between Housby’s possession of the stolen property and his participation in the burglary, because the inference that Housby obtained the items by burglarizing Heister’s farm is not unreasonable.

But applying the additional test derived from Leary that the presumed fact be more likely than not to flow from the proved fact is not as simple; it requires further examination of the evidence. When King and Housby reached Evelhoch’s house King asked Evelhoch to help him move a mower and Evelhoch agreed. King then went into a bedroom in the Evelhoch home to make a telephone call, and approximately 30 minutes after they arrived King and Housby, accompanied by Evelhoch and Douglas Eu-banks, who was at the Evelhoch home when King and Housby got there, drove in King’s pickup to Housby’s home in Peru. Housby then got into a panel truck standing in the yard. Housby, driving the panel truck, followed King, in the pickup, to a rural wooded area outside of Peru known as Bailey Falls, which was reached by a dirt road. There, other proceeds of the burglary, including a John Deere riding lawnmower, were hidden among the trees. Leaving the other items in the woods, King, Housby, Evelhoch, and Eubanks loaded the mower onto the panel truck, and proceeded in the two vehicles to the farm of Leroy Koch, where they unloaded the mower. During their stop at the Koch farm, King was the only one who conversed with Koch. Koch gave King a check for $500, payable to the Green Front Tavern, which was owned by James Wasilewski.

Koch testified under an immunity grant that a few days before the delivery he had asked Wasilewski to get him such a mower at a good price. On the night of the delivery Wasilewski called him twice. The first call corresponded approximately to the time that King and Housby were at Evelhoch’s; the second call was a few minutes later. In the first call Wasilewski told Koch he had the mower for him, and the price would be $500. In the second call Wasilewski told him “they” were on the way over to deliver the mower. King, Housby, Evelhoch, and Eubanks arrived at the Koch farm approximately IV2 hours later.

After leaving Koch’s place, Housby and Evelhoch returned to the latter’s house in the panel truck. King and Eubanks drove in the pickup truck to the Green Front Tavern, and King gave Koch’s check to Wasilewski. King and Eubanks then returned to Evelhoch’s, arriving there at approximately 1:45 a.m. At approximately 2 a.m., Housby and King both left Evelhoch’s, Housby in his panel truck and King in his pickup.

During the night, police moved into the area where the mower had been hidden and recovered the items left there which had been stolen from the Heister farm. The next morning, armed with search warrants, the police seized the mower from Koch’s farm and the vacuum cleaner and clock radio from Evelhoch’s house. Housby and King were arrested.

Housby took the stand to explain his association with King on the night of the burglary. He stated that King had come to his house about 10 p.m. and asked for his help in moving a mower he said he had just bought. Housby’s testimony was that King showed him a receipt for a mower, a vacuum cleaner, and a clock radio, but he did not read it. The receipt was signed by a person named Bob Lewis and witnessed by four others. Though the receipt was produced by Housby at his trial, neither Lewis nor any of the witnesses were.

Housby agreed to go with King, a long-time acquaintance. They went first to Evelhoch’s home. While enroute there King said he planned to sell the mower to his brother. Housby replied that if King’s brother did not buy the machine because he was going out of business, then King’s yard was not big enough for such a machine. Housby suggested that King sell it to Wasilewski, saying that he had heard that Wasilewski was in the market for a mower. After leaving Evelhoch’s, King told Housby he had called Wasilewski, but Housby did not overhear this conversation.

Housby testified that he suggested they use the panel truck, which was old and beat up, instead of King’s new pickup. Housby explained that he did not think the four men (King, Housby, Evelhoch, and Eubanks) would fit comfortably in the pickup, and he was afraid that King’s new pickup would be scratched.

Housby testified he did not ask King how big the mower was or whether it would fit in the panel truck. Housby’s testimony on this subject was as follows:

“Q. Had King given you any measurements as to how big this riding lawn mower was to know it would fit in the panel truck?
A. No.
Q. Did you know if it would fit in the panel truck when you went to Bailey Falls?
A. I just assumed that it would.
Q. You didn’t take any measurements?
A. No.
Q. Did you ask Raymond King how big the lawn mower was?
A. No.
Q. Did you ask him what the size was to make sure this particular model would fit in the panel truck?
A. No.
Q. You just took the panel truck to Bailey Falls and hoped the mower would fit, is that correct?
A. Yes, sir.”

Housby did not state at any point in his testimony that he knew how big a John Deere riding lawnmower was or that it would fit into the panel truck.

Housby was in joint possession of the proceeds of the burglary with King less than three hours after the offense. Housby claimed that at the time of the break-in he was at home with his wife and brother-in-law, each of whom testifíed and confirmed his account, but the jury was free to disbelieve this explanation.

The following circumstances in evidence, taken together, establish that it is more likely than not that Housby obtained possession of the recently stolen property by burglary. Housby was the one to suggest that Wasilewski be contacted to try to dispose of the mower. Koch, in a call to Wasilewski a few days earlier, told him of his interest in that type of mower. It appears more likely that Heister’s farm was burglarized to supply a mower for Koch than that the burglary took place without any prearrangements for disposition of the mower. For the latter to be true requires belief in the following series of coincidences: that Fling picked up Housby at 10 p.m. without appointment or prearrangement to help him move the mower; that Housby suggested that King dispose of the mower by calling Wasilewski because he happened to know that Wasilewski was looking for a mower; and that Wasilewski happened to be in the market for a mower for Koch and, as a result of Housby’s gratuitous suggestion, the mower was delivered to Koch within 2Yz hours of the time King stopped to solicit Housby’s aid and within 5Yz hours of the burglary.

To move the mower, Housby supplied a panel truck which did not belong to him. Such free and easy use of another’s truck is unusual, especially because the questionable circumstances of the transfer must have raised doubts in Housby’s mind as to how King himself came into possession. In addition, the testimony indicates that, when Housby stopped at his house on the way to Bailey Falls, he did not have to go into his house to get the keys for the panel truck. This suggests that he had anticipated the use of the panel truck to move the stolen merchandise.

The panel truck was big enough to carry the mower. This suggests that Housby had previously seen the mower. The truck was enclosed and shielded the mower from pub-lie view while it was transported to Koch. Housby claimed he was not offered money to help King or even to pay for the panel truck’s gas. After the delivery to Koch, Housby stopped for gas and had to borrow $2 from Evelhoch to pay for it. The post-delivery meeting at Evelhoch’s offered King an opportunity to share with Housby whatever King might have received from Wasilewski for the mower.

These circumstances make it unlikely that Housby was an innocent victim of circumstances. It is also unlikely that he merely joined King after the burglary to dispose of the proceeds. King made the contact with Wasilewski, and Wasilewski arranged for the sale to Koch. At Koch’s, it was again King in charge of the deal, receiving the check and delivering it to Wasilewski. Housby did not perform any of the functions normally expected of a “fence,” and it was unlikely that he was acting in that capacity.

For these reasons we conclude that Housby’s involvement with the stolen property and his conduct with respect thereto indicate that it is more likely than not that he obtained his possession by burglary.

The corroborating circumstances which supported the inference that Housby participated in the burglary also satisfy the County Court requirement that the presumption not be the only basis for the finding of guilt. The corroborating evidence in this case may be found not only in the circumstances already discussed, but also in additional evidence indicating that Housby’s possession of the stolen property was not honest. The fact that the mower was concealed in a remote wooded area is evidence of the lack of honesty in Housby’s possession, as is the delivery of the mower to Koch for consideration payable to Wasilewski within such a short time after it was taken from the Heister farm. Sufficient corroboration is also presented where the defendant himself presents an explanation of possession that the jury reasonably finds to be false. Housby’s attempt to explain his possession of the stolen property in a way which showed him innocent of any wrongdoing could justifiably have damaged him in the eyes of the jury.

Housby argues that the presumption of guilt based on the exclusive and unexplained possession of recently stolen property shifts the burden of persuasion because the Illinois rule, announced in People v. Stock (1974), 56 Ill. 2d 461, is that the mere fact that a defendant makes an explanation is not enough to defeat the inference. Such a shift would mean that the presumption is mandatory and would have to meet the beyond-a-reasonable-doubt test. But the inference arising from possession of recently stolen property is a permissive one and shifts only the burden of production, not the burden of proof. (People v. Bennett (1954), 3 Ill. 2d 357, 364.) The burden of production shifts to the defendant only if the jury decides to accept the move from the proved fact to the presumed element. (People v. Hanson (1968), 97 Ill. App. 2d 338, 342.) At that point, the burden on the defendant to produce a reasonable explanation of possession is no more onerous than the normal consequence of any evidence introduced by the State tending to show guilt. The defendant must neutralize the State’s case in the eyes of the jurors or suffer a conviction. The constitutional dangers of presumptions used in criminal cases — that they will deprive the jury of its right to an independent evaluation of the evidence or relieve the State of its duty to prove every element of the offense beyond a reasonable doubt (442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224)-are simply not presented by the inference used in this case.

Finally, the defendant contends that even if the use of the presumption were justified here, the instruction explaining it to the jury was deficient. Housby argues that the instruction was worded in such a way as to compel the jurors to treat the presumption as mandatory and conclusive. He suggests that the jurors interpreted the instruction as giving them no option, but as requiring them to find the defendant guilty so long as Housby’s possession of recently stolen property was unexplained and exclusive. Even if the jurors understood the instruction as merely shifting the burden of production, Housby points out that the instruction did not tell the jurors how much proof was needed to rebut it.

In Sandstrom v. Montana (1979), 442 U.S. 510, 513, 61 L. Ed. 2d 39, 44, 99 S. Ct. 2450, 2453, an instruction that “ [t]he law presumes that a person intends the ordinary consequences of his voluntary acts” was struck down as mandating a conclusive presumption on the issue of intent. The court said that a reasonable juror could well have interpreted the instruction as an irrebuttable direction to find intent once convinced of the facts triggering the instruction, or as a direction that the defendant bore the burden of proof on the issue of intent. Either interpretation resulted in an unconstitutional presumption. The jurors were deprived of their right to independently evaluate the evidence, and the State was relieved of its duty to prove every element of the offense beyond a reasonable doubt. 442 U.S. 510, 524, 61 L. Ed. 2d 39, 51, 99 S. Ct. 2450, 2459.

The court rejected the Sandstrom instruction, noting two features. First, the instruction failed to inform the jurors that they had the choice of applying the presumption or rejecting it. Second, the jurors were told, “The law presumes,” instead of “You may presume.” (442 U.S. 510, 515, 61 L. Ed. 2d 39, 45, 99 S. Ct. 2450, 2454.) The court concluded that these elements of the instruction made it mandatory, not permissive, in the eyes of the reasonable juror. The second objectionable feature of the Sandstrom instruction is not a factor here. The instruction in this case states that the jurors “may infer.” These same words address the first feature by informing the jurors that they had the option of ignoring the instruction. The instruction in this case did not explicitly tell the jurors that they were free to choose whether to credit or reject the presumption. But the words “you may infer” were adequate to advise them that the inference with which they were dealing was permissive, and that they were free to decide whether to make use of it in judging Housby’s guilt. Similar language (“you may infer”) made the instruction struck down in Sandstrom valid when later challenged before the Montana Supreme Court. State v. Coleman (1979),---Mont.---,-- — , 605 P.2d 1000, 1052.

The defendant claims that the instruction would have been better had it explicitly told the jurors that they could disregard the presumption. He points out that a proposed revision of IPI Criminal No. 13.21 includes a sentence stating that the jury is never required to make the inference. The instruction could, of course, have been in more detail and could have expressly told the jury that it was free to credit or reject the inference suggested to it. Other States have added such explanations to similar instructions. (See State v. Lewis (Iowa 1976), 242 N.W.2d 711; Wells v. People (1979), 197 Colo. 350, 592 P.2d 1321.) Still, the lack of a more complete explanation is not a controlling consideration in determining the validity of the instruction. (State v. Rinehart (Iowa 1979), 283 N.W.2d 319, 323.) Such an addition to IPI Criminal No. 13.21, although perhaps prudent, would be redundant, because the instruction, as given, advised the jurors that they “may infer.”

Apart from the wording of the instruction here, the other instructions given to the jury also told the jurors that it was they who would make the final decision on whether to apply the presumption. When examining instructions in a case, no single instruction is to be judged in artificial isolation. It must be viewed in the context of the entire charge. (Cupp v. Naughten (1973), 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 373, 94 S. Ct. 396, 400; McInerney v. Berman (1st Cir. 1980), 621 F.2d 20, 23-24; People v. Mills (1968), 40 Ill. 2d 4, 15.) Housby’s jury was given, in addition to the instruction at issue, the following: IPI Criminal No. 1.01, which told the jurors that they were not to single out particular instructions, that they were to act as the judges of the facts, and that they should consider all the evidence in light of their own observations and experience; IPI Criminal No. 2.03, which states that the defendant has the presumption of innocence at every stage in the trial, that the presumption of innocence is not overcome except by proof beyond a reasonable doubt, and that the burden of proof beyond a reasonable doubt remained on the State throughout the trial; the burglary elements instruction, IPI Criminal No. 14.06, which requires an acquittal if any element is not proved beyond a reasonable doubt; and most importantly, IPI Criminal No. 3.02 on circumstantial evidence, including the warning that the jurors were not to find the defendant guilty unless the circumstantial evidence excluded every reasonable theory of innocence. This latter instruction was especially important, because it told the jury that if it had any reasonable doubt about relying upon the inference, which was only circumstantial in nature, it should find Housby not guilty. Unlike Sandstrom, the remaining instructions in the charge, when taken together with the permissive wording of the instruction objected to, adequately informed the jury that it had the option of disregarding the presumption if it so chose. Compare Sandstrom, 442 U.S. 510, 518 n.7, 61 L. Ed. 2d 39, 47 n.7, 99 S. Ct. 2450, 2456 n.7.

In addition, the jury was given IPI Criminal No. 1.02, which told it that it was the sole judge of credibility. Thus, the jurors knew that the defendant’s possession would remain unexplained, his burden of production unfulfilled, and the presumption unrebutted unless they believed the witnesses brought forth or the argument set out to explain Housby’s possession. The jury was therefore adequately informed of the degree of proof needed to rebut the permissive inference, and the wording of IPI Criminal No. 13.21, when considered along with the rest of the charge, did not violate the defendant’s right to due process.

The presumption and the instruction explaining it to the jury were not used improperly in this case. The defendant’s conviction must be affirmed.

The defendant argued that the mittimus did not reflect the intention of the trial judge, because the stated sentence-seven years — exceeds the maximum for theft. The appellate court ordered the cause remanded to permit the trial court to clarify its sentencing intention. We agree with that resolution of the problem and remand the cause for sentence clarification.

Affirmed and remanded, with directions.

MR. JUSTICE RYAN took no part in the consideration or decision of this case.