author: JUSTICE REINHARD

text:
    CRYSTAL AZZONE, Plaintiff-Appellant, v. CRAIG BRICCO, Defendant-Appellee.
    Second District
    No. 2—83—0940
    Opinion filed July 19, 1984.
    Karen L. Brigham and James J. Friedman, both of Waukegan, for appellant.
    Roger A. White & Associates, of Lake Bluff, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

On May 12, 1983, plaintiff, Crystal Azzone, filed a complaint to establish paternity and enforce support against defendant, Craig Bricco, alleging that he was the father of Azzone’s child, born out of wedlock on October 22, 1979. Bricco moved to dismiss the complaint on the ground that it was not filed within the two-year statutory time limit from the birth of the child for commencing paternity actions pursuant to section 4 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1354). Azzone then filed a response and her affidavit asserting various reasons for her delay in bringing the action and claiming that the limitations period was unconstitutional. The trial court granted Bricco’s motion to dismiss, finding the cause barred by the statutory two-year limitations period.

The sole issue raised by Azzone on appeal is whether the two-year time limit for bringing a paternity action as provided in section 4 of the Paternity Act is an unconstitutional denial of the equal protection clause of both the United States and Illinois constitutions.

Our supreme court in Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447, upheld the constitutionality of the two-year limitation provided for in section 4 of the Paternity Act. Since Cessna, however, the United States Supreme Court has invalidated on equal protection grounds both a Texas statute establishing a one-year limitations period governing suits to identify the fathers of illegitimate children (Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549), and a Tennessee statute imposing a two-year limitations period on paternity and child support actions brought on behalf of certain illegitimate children. (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199.) The Illinois Appellate Court, in People ex rel. McCoy v. Sherman (1984), 123 Ill. App. 3d 444, 462 N.E.2d 817, and Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24, following the United States Supreme Court’s decision in Pickett, has held that the two-year time limit for filing suit under the Paternity Act is unconstitutional. See also Evink v. Pekin Insurance Co. (1984), 122 Ill. App. 3d 246, 252-53, 460 N.E.2d 1211.

In contending the decision in Pickett is inapplicable to section 4 of the Paternity Act, Bricco has raised arguments similar to those rejected in both McCoy and Jude. Having analyzed the United States Supreme Court’s opinion in Pickett and considered Bricco’s appellate arguments, we conclude that decision requires us to likewise hold that the two-year limitations period of the Paternity Act is unconstitutional. We therefore conclude, like McCoy and Jude, that the two-year limitations period of the Paternity Act violates the equal protection clause of the fourteenth amendment, and requires reversal of the trial court’s dismissal of Az-zone’s complaint to establish paternity and enforce support. In view of our ruling on the legal issue involved, Azzone’s motion to strike a portion of Bricco’s brief as containing assertions of fact not contained in the record becomes moot.

Accordingly, for the foregoing reasons we reverse and remand this cause for further proceedings.

Reversed and remanded.

UNVERZAGT and LINDBERG, JJ., concur.

       Although the order of dismissal indicates it is final and appealable, it also provides that Azzone is given 14 days to amend the complaint. No issue is raised on appeal on the finality of this order and, while this court may sua sponte consider its jurisdiction, it may also treat the question whether an order is final and appealable as waived where it is not raised on appeal. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 116-17, 449 N.E.2d 137.) As the order is ambiguous, and we do not have a transcript of the proceedings at the time the order was entered, we decline to consider the finality issue.

      We note that Senate Bill 1179, passed by the General Assembly and awaiting action by the Governor at the time this opinion was filed, would create a new act entitled the “Illinois Parentage Act of 1984.” The new act would repeal the existing Paternity Act and provide a new limitations period if it becomes law.


source: Caselaw Access Project

author:
JUSTICE HOPE
      JUSTICE NASH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. DUGAN, et al., Defendants-Appellants.
    Second District
    Nos. 2—83—0444, 2—83—0452, 2—83—0503 cons.
    Opinion filed July 19, 1984.

      NASH, J., dissenting.
    Benedict J. Ori, of Ori, Tepper & Fox, of Waukegan, and Patrick A. Tuite, of Chicago, for appellants.

      Neil F. Hartigan, Attorney General, of Springfield, and Fred Foreman, State’s Attorney, of Waukegan (David Hindi, Assistant Attorney General, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Following a bench trial in the circuit court of Lake County-defendants were convicted of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(b)) in connection with the operation of a gambling casino at the Green Mill Restaurant near Grayslake. On appeal, they claim that: (1) the receipt of wagers for blackjack and craps is not “bookmaking” within the meaning of the statute; (2) the State failed to prove the required element of a “recording”; (3) the State failed to prove that defendants were engaged “in the business” of bookmaking; (4) the Illinois syndicated gambling statute is vague, uncertain and hence unconstitutional; (5) there was insufficient evidence to prove syndicated gambling and thus the forfeiture of an automobile based upon that offense must fall; and (6) the forfeiture order entered by the court is against the manifest weight of the evidence.

Defendants, Robert F. Dugan, Barbara J. Miller, Sharon L. Skelton, James R. Siegal, Peter R. Lambiris, Bill Anagnostara, Trina M. Brie, Norman P. Roberts, and Edward M. Kahn, were indicted on charges of syndicated gambling following a three-month undercover investigation by the Illinois Department of Law Enforcement (DLE). The investigation revealed that the basement of the restaurant housed a private club called the Northern Illinois Fin & Tail Feather Club in which games of blackjack and craps were played by patrons and conducted by defendants. Members of the club were identified by their possession of membership cards which could be obtained through sponsorship by other members. Access to the club was barred by a steel door with a locking mechanism. The lock was released by a buzzer operated by a doorman who was able to view the patrons through a peephole before allowing them in. Inside the club were two card tables for blackjack, a dice table, a horseshoe-shaped bar and several food tables. Behind this area was a hallway leading to restrooms, a pay telephone, and a wine cellar which housed a large metal safe. On September 10, 1982, the date of the indictment, a number of patrons were in the club.

Patrons of the club purchased poker chips from dealers at the tables and used the chips to bet at the various games. Additionally, patrons who had dinner at the Green Mill Restaurant above the casino could exchange the receipt from the dinner check for chips. In this way, defendants would pay for the patrons’ dinners. The chips came in various colors corresponding to different dollar amounts. Underneath one of the blackjack tables was a cash box. When chips were purchased at any of the gambling tables, the cash was deposited into the cash box through a slot in the blackjack table. Defendant Roberts approved each sale of chips by nodding his head at the dealers, after which the chips were dispensed. Periodically, defendant Roberts would remove the cash from the cash box and walk it down the hall towards the wine cellar, sometimes accompanied by defendant Dugan. These defendants, along with the remaining defendants, also dealt the games and took money in exchange for chips. Defendants Dugan, Roberts and Kahn all collected gambling debts from the patrons in addition to their other duties.

The club provided food, drinks, and cigarettes to its patrons free of charge. The employees of the club worked for tips in the form of poker chips. The chips were cashed in at the end of the evening, as were the patrons’ chips, by defendants Dugan, Roberts and Kahn.

The testimony at trial established that these operations had been going on at least since March 1982, when the club was raided by deputies of the Lake County Sheriff’s office. Despite the raid, gambling continued during the succeeding months. On September 10, 1982, the date specified in the indictment, six DLE agents spent varying amounts of money in the casino, ranging from $100 to $2,200.

Defendants presented no evidence in defense of the syndicated gambling charge, and were subsequently found guilty of the offense. Defendants’ post-trial motions to dismiss the indictments and for a new trial were denied. They were sentenced to various terms of supervised probation and imprisonment, and were ordered to pay restitution and fines. Defendants appeal from their convictions.

In a separate action, the Lake County State’s Attorney filed a civil complaint for the forfeiture of one 1977 Cadillac Coupe DeVille, which was seized from the parking lot of the Green Mill Restaurant on the evening of the raid. At the hearing on the complaint, State Trooper David Conrod testified that during the raid he identified all vehicles parked in the lot behind the restaurant. Using a flashlight, he observed several decks of cards and a number of Northern Illinois Fin & Tail Feather Club membership cards inside the vehicle in question. He advised the supervising assistant Attorney General of this finding and was instructed to have the car confiscated and towed away for evidence. Following this seizure a search warrant was obtained. Recovered in the subsequent search were numerous membership cards, poker chips, playing cards, gambling table covers, and $30,000 in cash. It was also discovered that this cash included $700 of the money gambled by several of the DLE agents. DLE agent Paul Olsen testified that during his interview of defendant Dugan following his arrest, Dugan stated that he was the owner of the Cadillac.

The defendant presented testimony in the forfeiture action that the Cadillac in question was owned by one Sandra Martinez, although negotiations for its purchase were made by defendant Dugan. Dugan also paid the dealer over $5,000 on August 10, 1982, for the vehicle. Nine days later defendant Dugan returned the vehicle so that certain repairs could be made. Sandra Martinez received the title for the automobile, purchased insurance for the car, but allowed Dugan to borrow the vehicle for an indeterminate period of time. Defendant Dugan kept the car from August 31, 1982, until the raid on September 10-11, 1982. Martinez was unemployed at the time of the purchase and had not earned over $10,000 a year for the two years preceding the raid. She had no bank account, and testified that the $5,000 used to pay for the vehicle came from cash which she kept in her home.

The trial court found that defendant Dugan was the de facto owner of the automobile, and ordered the vehicle forfeited. Appeal is also taken from the forfeiture order.

We first consider defendants’ argument that the receipt of wagers on blackjack and craps is not “bookmaking” within the meaning of section 28 — 1.1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(b)), but rather is the lesser offense of “gambling,” as set forth in section 28 — 1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1(a)(1)). Noting that the bookmaking statute has never been applied in a case dealing with the playing of cards and dice for money, defendants maintain that the legislature intended to make “gambling” and “bookmaking” two separate offenses, each proscribing different conduct. Specifically, defendants argue that the offense of “bookmaking” occurs only where wagers are taken from others on events or contests in which neither the bookie nor the bettor is a participant. (See People v. Petrus (1981), 98 Ill. App. 3d 514, 424 N.E.2d 755; People v. Smith (1979), 69 Ill. App. 3d 752, 387 N.E.2d 1084; People v. Finn (1978), 68 Ill. App. 3d 126, 385 N.E.2d 103; People v. Greenman (1976), 38 Ill. App. 3d 734, 348 N.E.2d 465; People v. Stavros (1974), 18 Ill. App. 3d 1071, 311 N.E. 2d 220; People v. Lloyd (1954), 3 Ill. App. 2d 257, 121 N.E.2d 329.) The State contends, on the other hand, that the offenses of “gambling” and “bookmaking” are not mutually exclusive, but rather differ only in the extent and degree of the conduct proscribed.

Section 28 — 1.1(b) of the Criminal Code of 1961 states that “[a] person commits syndicated gambling when he operates a ‘policy game’ or engages in the business of bookmaking.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(b).) The offense is a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(f).) “Bookmaking” is defined in the statute as follows:

“(d) A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, speed or power of endurance or upon any lot, chance, casualty, unknown or contingent event whatsoever, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or accepting of such bets or wagers regardless of the form or manner in which the bookmaker records them.” (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(d).)

“Gambling,” on the other hand, is defined in pertinent part as follows:

“(a) A person commits gambling when he:
(1) Plays a game of chance or skill for money or other thing of value, unless excepted in subsection (b) of this Section; ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1(a)(1).)

The offense is a Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1(c)). The list of exceptions set forth in subsection (b) of the gambling statute is not applicable here (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1(b)).

The cardinal rule of statutory construction is that the courts are to ascertain and give effect to the true intent and meaning of the legislature. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.) The specific words of a statute are the best indicators of the legislative intent behind the statute. (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 155, 446 N.E.2d 1217.) Where the language of a statute is plain, there is no need for interpretation; however, where interpretation is required, the appellate court will select the construction which leads to a logical result, and will consider the object to be attained and the result of various interpretations of the act. (Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 929, 446 N.E.2d 256.) Criminal or penal statutes are to be strictly construed in favor of an accused and nothing is to be taken by intendment or implication against him beyond the literal or obvious meaning of the statute. (People v. Scribner (1982), 108 Ill. App. 3d 1138, 1144, 440 N.E.2d 160.) Nevertheless, such statutes are not to be construed so strictly as to defeat the obvious intent of the legislature. People v. Scribner (1982), 108 Ill. App. 3d 1138, 1144, 440 N.E.2d 160.

After reviewing the foregoing provisions, we reject defendants’ argument that “gambling” and “bookmaking” are mutually exclusive offenses. First, the plain language of the bookmaking statute does not exclude the playing of games of chance for money from its provisions; nor does it limit its application to situations where the bookie and bettor are nonparticipants in the event wagered upon. It is a fundamental rule of statutory construction that a court cannot inject provisions not found in the statute, however desirable or beneficial they may be. Droste v. Kerner (1966), 34 Ill. 2d 495, 504, 217 N.E.2d 73, appeal dismissed, cert, denied (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612.

Second, the plain language of the bookmaking statute states that it is to apply to bets or wagers made “upon any lot, chance, casualty, unknown or contingent event whatsoever ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(d).) A “lot” is commonly defined as “[a]n object used in making a determination or choice by chance.” (American Heritage Dictionary 771 (1969).) Similarly, “chance” has been defined as “[t]he probability of occurrence of an event; *** an unexpected random, or unpredicted event.” (American Heritage Dictionary 224 (1969).) While it is true that the conduct of playing cards and dice for money fits within the plain language of the gambling statute (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1(a)), it is also clear that a wager upon such games of chance is also prohibited by the plain language of the bookmaking statute. Further, the legislature has expressly declared that its intent in enacting the syndicated gambling statute was “to restrain persons from engaging in the business of gambling for a profit ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(a).) Where the legislature uses the same words in different parts of the statute, those words are generally given the same meaning. (People v. Dunlap (1982), 110 Ill. App. 3d 738, 742, 442 N.E.2d 1379.) Although a statement of policy is not a part of the Act it precedes (see Hayen v. County of Ogle (1983), 116 Ill. App. 3d 80, 84, 451 N.E.2d 612, affd (1984), 101 Ill. 2d 413, 463 N.E.2d 124), we nevertheless believe that the legislature’s use of the word “gambling” in its declaration of policy indicates an intent to incorporate the gambling offenses as set forth in section 28 — 1 into the syndicated gambling statute. Thus, we find that the conduct of playing cards and dice for money may fall within the meaning of the syndicated gambling statute, provided that all the other elements of the offense are proved. Under these circumstances, it is within the State’s Attorney’s discretion to choose which of several charges shall be brought against defendants. People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539, 397 N.E.2d 809.

Defendants next contend that the bookmaking statute requires a recording of wagers, which the State failed to prove in the instant case. The State argues that the recording element was satisfied by the defendants’ sale and cashing of color-coded poker chips to the patrons of the establishment, and the requirement that only chips be used for betting. For the reasons which follow, we reverse defendants’ convictions.

“Bookmaking,” as defined in the syndicated gambling statute, occurs when one receives or accepts more than five bets totaling $2,000 or more “regardless of the form or manner in which the bookmaker records them.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(d).) This definition of bookmaking changed the prior law, which stressed the written recordation and registering of bets and wagers as the gist of the offense. (See People v. Lloyd (1954), 3 Ill. App. 2d 257, 121 N.E.2d 329.) The language of the amended bookmaking statute represents a shift in emphasis from the recording element to the receipt and acceptance of the bets which form the basis of the bookmaking charge. Nevertheless, we do not believe the legislature intended to eliminate recording as an element altogether. Had it so intended, it could have eliminated the requirement by explicit language in the statute. (See, e.g., Cal. Penal Code sec. 337a: “Every person who engages in poolselling or bookmaking, with or without writing, *** is punishable by imprisonment ***” (emphasis added).) We therefore conclude that rather than eliminating the recording requirement the legislature intended to expand the methods by which a recording could be made.

Despite this expanded interpretation of a recording, it is our opinion that the sale and use of color-coded poker chips in the casino was insufficient to satisfy the recording requirement of the bookmaking statute. Although poker chips may have been used by defendants to determine the profits or losses of the casino on any given evening, we do not believe they memorialized the bets or wagers placed by a particular individual on a specified game of blackjack or craps. We conclude that the State failed to establish a recording of the bets or wagers beyond a reasonable doubt and that defendants’ convictions must therefore be reversed.

Because we are reversing defendants’ convictions for the reason stated above, we do not reach defendants’ other arguments concerning their convictions. We will consider, however, the separate appeal relating to the forfeiture of the automobile which was allegedly used in the commission of the crime of syndicated gambling.

It is first argued that the forfeiture order must fall because defendants were not proved to have committed syndicated gambling. We disagree.

A forfeiture proceeding under section 36 — 1 of the Criminal Code of 1961 is a civil action in rem against an item used in the commission of a crime. (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1 et seq.; People ex rel. Carey v. 1976 Chevrolet Van (1979), 72 Ill. App. 3d 758, 760, 391 N.E.2d 137.) The legislative policy behind forfeiture statutes is that forfeiture of vehicles is permitted in order to repress certain types of crimes when these vehicles are used in their commission. (72 Ill. App. 3d 758, 760, 391 N.E.2d 137.) Under the statute, the forfeiture of such items is not dependent upon a prior conviction; the State need only prove its position that the vehicle was used in commission of an offense by a preponderance of the evidence, rather than beyond a reasonable doubt. (People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 112, 420 N.E.2d 770; People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37, 41, 284 N.E.2d 646, rev’d on other grounds sub nom. Robinson v. Hanrahan (1972), 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30.) The trial court in a civil proceeding does not examine the issue of a defendant’s guilt or innocence. People v. Fulton (1979), 68 Ill. App. 3d 915, 925, 386 N.E.2d 605.

In People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37, 42, 284 N.E.2d 646, the Illinois Supreme Court expressly declined to consider the question whether a forfeiture would exist in a situation where a defendant was acquitted or not tried at all on the offense charged. We, too, decline to consider this question. Although we have found that defendants’ convictions of syndicated gambling cannot stand, we do not believe our finding affects the validity of the forfeiture proceeding. The complaint for forfeiture here stated that defendant Dugan used the Cadillac in violation of section 28 — 1 of the Criminal Code of 1961, which is the gambling rather than the syndicated gambling statute (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1). The offense of gambling was clearly established by a preponderance of the evidence, and defendants on appeal have essentially conceded that that offense was in fact committed. Since a forfeiture order is not dependent upon a prior conviction (People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 112, 420 N.E.2d 770), the forfeiture order in the present case is not invalid because the offense of syndicated gambling was not proved beyond a reasonable doubt.

Finally, it is argued that the forfeiture order is against the manifest weight of the evidence in two respects. First, it is claimed that the title holder of the automobile, Sandra Martinez, must have had knowledge that defendant Dugan was involved in a gambling operation before a forfeiture order may issue. Second, defendant argues that the vehicle was not used to facilitate the commission of a crime. The State argues that the appropriate inquiry is whether the vehicle was used with the knowledge and consent of the “true owner,” and that ownership may reside in someone other than the title holder. The State also argues that the presence of gambling paraphernalia in the automobile is sufficient to establish by a preponderance of the evidence that it was used to facilitate the gambling operation.

Section 36 — 1 of the Criminal Code of 1961 authorizes the seizure of any vehicle “used with the knowledge and consent of the owner in the commission of, or in the attempt to commit *** an offense prohibited by *** 28 — 1 of this Code ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1.) Upon seizure, the sheriff must give notice of the seizure to “each such person whose right, title or interest is of record ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1.) In the forfeiture proceeding which follows, the State’s Attorney may cause the remission of the forfeiture if he finds “that such forfeiture was incurred without willful negligence or without any intention on the part of the owner of the *** vehicle *** or any person whose right, title or interest is of record *** to violate the law.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 38, par. 36 — 2(a).) We believe the legislature’s use of the terms “owner” and “person whose right, title or interest is of record,” used through section 36 — 2, indicates its awareness that ownership and title may not necessarily reside in the same person.

Given this recognition of the difference between these two terms, we conclude that it is the knowledge and consent of the “owner,” and not the title holder, which is paramount in determining whether a particular vehicle is subject to forfeiture. (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1, et seq.) The word “owner” may be used to describe one who has dominion or control over a thing, the title to which is in another. (Black’s Law Dictionary 1259 (4th ed. 1968).) In the instant case, it is undisputed that defendant Dugan exercised dominion and control over the vehicle in question, and this fact is amply supported by the record. Further, the trial court specifically found incredible certain defense testimony indicating that the car was purchased with money saved by Ms. Martinez. Under these circumstances, the trial court’s finding that defendant Dugan was the true owner of the vehicle is not against the manifest weight of the evidence. Thus, his knowledge and consent of the use of the vehicle in the commission of a crime is sufficient to subject the vehicle to forfeiture.

The cases cited by defendant in support of its position are distinguishable from the present case. In 1957 Chevrolet v. Division of Narcotic Control (1963), 27 Ill. 2d 429, 189 N.E.2d 347, a case factually similar to the case at bar, there was no specific issue as to “ownership” of the vehicle in question. Additionally, at the time of the 1957 Chevrolet case there was no distinction made in the challenged statute between “owner” and “title holder.” Thus, the case is of little guidance here.

In another case cited by defendant, People ex rel. Carey v. 1976 Chevrolet Van (1979), 72 Ill. App. 3d 758, 391 N.E.2d 137, the vehicle which was the subject of a forfeiture action was dominated and controlled by the same person who held title. Thus, that case is also inapposite. Similarly, the case of People v. One 1978 Mazda GLC Hatchback Automobile (1983), 115 Ill. App. 3d 187, 450 N.E.2d 339, is uninstructive since it stands only for the proposition that only one who has a recorded interest in a vehicle may contest its forfeiture. (115 Ill. App. 3d 187, 190, 450 N.E.2d 339.) Here, Ms. Martinez’ standing to contest the forfeiture provision is not in issue.

Defendant also argues that the vehicle was, at best, merely a repository for money after the offense was committed and did not facilitate the commission of the offense. We disagree. The vehicle here contained large sums of money (i.e., $30,000), $700 of which was money wagered by the undercover investigators, as well as membership cards to the club, poker chips, playing cards, and gambling table covers. It is reasonable to infer from the presence of gambling paraphernalia and membership cards in the automobile that the vehicle was used to promote the gambling operation. See People ex rel. Stamos v. 1965 Chevrolet Chevy II (1968), 99 Ill. App. 2d 201, 207, 240 N.E.2d 169.

For the foregoing reasons, the judgment of the circuit court of Lake County finding defendants guilty of syndicated gambling is reversed; the forfeiture order is affirmed.

Affirmed in part; reversed in part.

UNVERZAGT, J., concurs.

JUSTICE NASH,

dissenting:

I respectfully dissent from that portion of the majority opinion in which it holds that a “recording” of wagers by defendant is an element of the offense of syndicated gambling when premised upon bookmaking (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(b)).

It is correct, as noted in the opinion, that the gist of the former offense of bookmaking was the keeping of a book, instrument, or device for the purpose of recording or registering bets or wagers (see Ill. Rev. Stat. 1959, ch. 38, par. 336), and, under that form of the statute, it was held that without a recording there could be no bookmaking. (People v. Lloyd (1954), 3 Ill. App. 2d 257, 2571.) That statute, and its explicit recording language, was repealed, however, on the enactment of the Criminal Code of 1961 and “bookmaking” now appears in the Criminal Code only as a part of the syndicated gambling statute. It is there redefined as follows:

“(d) A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, speed or power of endurance or upon any lot, chance, casualty, unknown or contingent event whatsoever, which bets or wages shall be of such size that the total of the amounts of money paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or accepting of such bets or wagers regardless of the form or manner in which the bookmaker records them.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(d).)

As may be seen, bookmaking is no longer the keeping of a record of wagers, but is defined as occurring when one accepts multiple wagers aggregating over $2,000 upon the outcome of certain occurrences. The previous requirement that a book or record be kept in which wagers are recorded is not seen in the present statute and should not be inserted by this court after having been removed by the legislature. Perhaps to avoid that result, the legislature stipulated that bookmaking is the receiving or accepting of wagers “regardless of the form or manner in which the bookmaker records them.” I do not consider that it was intended by this language that proof of a recording of wagers must be shown as an element of the offense of syndicated gambling.

I would affirm the judgment of the trial court.


author: JUSTICE HOPE JUSTICE REINHARD, JUSTICE HOPF

text:
      In re M.W.W., a Minor-(The People of the State of Illinois, Petitioner-Appellee, v. M.W.W., Respondent-Appellant).
    Second District
    No. 2—83—0579
    Opinion filed June 21, 1984.
    Supplemental opinion filed on denial of rehearing August 21, 1984.
    REINHARD, J., dissenting.
    G. Joseph Weller and Jan K. Dargel, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

A petition for adjudication of wardship was filed in the circuit court of McHenry County against the minor-respondent, M.W.W., alleging that he had committed the offenses of theft under $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(2)) and criminal damage to property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(d)). Following an adjudicatory hearing on April 8, 1983, the court entered an order continuing the matter to May 20, 1983, for disposition. The order stated that “from the evidence presented, the matters in the petition are proved to the required degree and the court enters findings thereon.” Findings of guilt were also pronounced in open court. However, an adjudication of wardship was expressly withheld pending a social investigation.

At the dispositional hearing on May 20, 1983, the court entered an order continuing the minor under supervision pursuant to section 4 — 7 of the Juvenile Court Act (hereinafter the Act) (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 7). The order specifically found that “at the present time the best interests of the minor and of the public do not require the wardship of the court.” The court then ordered the adjudication of wardship stayed under certain terms and conditions, which included that M.W.W. report to his probation officer “as directed,” that he perform 40 hours of public service, and that he make restitution to the victims in the amount of $40. The matter was continued to May 18, 1984, “for final review.” On appeal, the minor contends that the State failed to establish the corpus delicti of the two charged offenses, and that his guilt of the offenses was not proved beyond a reasonable doubt. The State responds to these contentions and also raises the additional contention that the order appealed from is not a final and appealable order. We first consider the State’s challenge to appealability. We do not reach the merits of the minor-respondent’s appeal, since we believe the case must be reversed and remanded on a ground not raised by the parties; i.e., the trial court’s lack of jurisdiction to enter the dispositional order.

Section 4 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 7(1)) authorizes the trial court to enter an order of continuance under supervision pursuant to certain specified conditions:

“Sec. 4 — 7. (1) The court may enter an order of continuance under supervision (a) upon an admission or stipulation by the appropriate respondent or minor respondent of the facts supporting the petition and before proceeding to findings and adjudication, or after hearing the evidence at trial but before noting in the minutes of proceeding a finding of whether or not the minor is a person described in Section 2 — 1; and (b) in the absence of objection made in open court by the minor, his parent, guardian, custodian, responsible relative, defense attorney or the State’s Attorney.” (Emphasis added.)

Section 2 — 1 of the Act, to which the above provision refers, describes persons subject to proceedings under the Act and includes, among others, delinquent minors. (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 1.) As is evident from the above-quoted language, a continuance under supervision pursuant to section 4 — 7 does not finally dispose of the merits of the State’s petition for an adjudication of delinquency, but provides only for a continuance of the proceedings. (In re AM. (1981), 94 Ill. App. 3d 86, 88, 418 N.E.2d 484.) As such, it is an order which is necessarily not based on a judgment (see People v. Breen (1976), 62 Ill. 2d 323, 326, 342 N.E.2d 31; In re AM. (1981), 94 Ill. App. 3d 86, 88, 418 N.E.2d 484), and is unappealable except where the Supreme Court Rules permit interlocutory appeal. (In re A.M. (1981), 94 Ill. App. 3d 86, 88, 418 N.E.2d 484.) While the rules permit interlocutory appeal from certain orders under the Juvenile Court Act (87 Ill. 2d Rules 662, 663; In re A.M. (1981), 94 Ill. App. 3d 86, 88, 418 N.E.2d 484), those orders are not implicated in the present case. Thus, if in fact the order here is an order for continuance under supervision pursuant to section 4 — 7 of the Act, as it so states on its face, then the State’s assertion of unappealability is correct.

In the present case, however, the order for continuance under supervision was entered after the trial court found the minor guilty of the charged offenses but before an express adjudication of the minor’s delinquency. Under these same circumstances, this court held in In re A.M. (1981), 94 Ill. App. 3d 86, 418 N.E.2d 484, that an order for continuance under supervision was not a final and appealable order. However, since our decision in In re A.M., the Illinois Supreme Court has held that a finding of guilt in open court and in a written order that was never vacated is tantamount to a finding of delinquency, since the Juvenile Court Act defines a delinquent minor as a minor who “prior to his 17th birthday has violated *** any federal or state law ***.” (In re J.N. (1982), 91 Ill. 2d 122, 128, 435 N.E.2d 473; see Ill. Rev. Stat. 1981, ch. 37, par. 702 — 2.) Given this recent pronouncement by our State’s highest court, we must necessarily conclude that the trial court’s placement of M.W.W. on “supervision” after its findings of guilt was really, but for what follows later, a disposition of the case akin to probation (see Ill. Rev. Stat. 1983, ch. 37, par. 705 — 3), and not merely a continuance as contemplated by section 4 — 7 of the Juvenile Court Act. (In re J.N. (1982), 91 Ill. 2d 122, 128, 435 N.E.2d 473; Ill. Rev. Stat. 1983, ch. 37, par. 704 — 7.) Section 4 — 7, as pertinent here, authorizes a continuance under supervision only “before noting *** a finding of whether or not the minor is a person described in Section 2 — 1; ***.” (Ill. Rev. Stat. 1983, ch. 37, par. 704— 7(l)(a).) Under the Juvenile Court Act, a dispositional order results in a final judgment and is, therefore,, appealable. In re J.N. (1982), 91 Ill. 2d 122, 127, 435 N.E.2d 473; see In re Smith (1980), 80 Ill. App. 3d 380, 399 N.E.2d 701.

However, the plot thickens. We believe that under the circumstances of this case, the court’s dispositional order was entered without authority. Under the Juvenile Court Act, a dispositional order is not to be entered until after the court has adjudged the minor a ward of the court. (In re J.N. (1982), 91 Ill. 2d 122, 128, 435 N.E.2d 473; In re Younger (1977), 45 Ill. App. 3d 922, 923, 360 N.E.2d 396; In re Horton (1977), 45 Ill. App. 3d 264, 360 N.E.2d 394; Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8.) Section 4 — 8 of the Act provides, in relevant part:

“(1) After hearing the evidence the court shall make and note in the minutes of the proceeding a finding of whether or not the minor is a person described in Section 2 — 1. If it finds that the minor is not such a person or that the best interests of the minor and the public will not be served by adjudging him a ward of the court, the court shall order the petition dismissed and the minor discharged from any detention or restriction previously ordered in such proceeding.
(2) If the court finds that the minor is a person described in Section 2 — 1 and that it is in the best interests of the minor and the public that he be made a ward of the court, the court shall note in its findings whether he is delinquent, addicted, requiring authoritative intervention, neglected or dependent, specifying which of Sections 2 — 2 through 2 — 5 is applicable, and shall adjudge him a ward of the court and proceed at an appropriate time to a dispositional hearing.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8.)

It has been held that a minor need not be explicitly adjudged to be a ward of the court in order to give the court jurisdiction to enter a dis-positional order. (In re J.N. (1982), 91 Ill. 2d 122, 129, 435 N.E.2d 473.) An adjudication of wardship may be implied from the circumstances of the case. (In re J.N. (1982), 91 Ill. 2d 122, 129, 435 N.E.2d 473; In re Scott (1978), 62 Ill. App. 3d 367, 368, 379 N.E.2d 72.) However, the application of these principles is inappropriate where, as here, the court has specifically found that “at the present time the best interests of the minor and of the public do not require the wardship of the court,” and where an adjudication of wardship was expressly stayed. (Cf. In re J.N. (1982), 91 Ill. 2d 122, 128-29, 435 N.E.2d 473.) The language of the dispositional order here is in our view mutually exclusive. Absent either an explicit adjudication of wardship or circumstances under which such an adjudication may be implied, the trial court is without jurisdiction to enter a dispositional order. (See In re Horton (1977), 45 Ill. App. 3d 264, 360 N.E.2d 394; In re Younger (1977), 45 Ill. App. 3d 922, 923, 360 N.E.2d 396.) We therefore reverse the dispositional order and remand the cause with directions that the trial court determine whether an adjudication of wardship is in order and, if made, a dispositional order may be entered. (See In re Martin (1977), 48 Ill. App. 3d 341, 346-47, 363 N.E.2d 29.) However, if it is found that the minor should not be adjudged a ward, the petition shall be dismissed. (In re Martin (1977), 48 Ill. App. 3d 341, 347, 363 N.E.2d 29; Ill. Rev. Stat. 1983, ch. 37, par. 704 — 8(1).) Alternatively, the trial court may vacate its earlier findings of guilt and enter an order for continuance under supervision pursuant to section 4 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704-7; see In re J.N. (1982), 91 Ill. 2d 122, 128, 435 N.E.2d 473).

Accordingly, the judgment of the circuit court of McHenry County is reversed and remanded with directions, in accordance herein.

Reversed and remanded.

SEIDENFELD, P.J., concurs.

JUSTICE REINHARD,

dissenting:

Section 4 — 7(l)(a) of the Juvenile Court Act authorizes the trial court to enter an order of continuance under supervision which, if properly entered, is a nonfinal order not appealable under the present Supreme Court Rules. (See In re A.M. (1981), 94 Ill. App. 3d 86, 418 N.E.2d 484.) However, in a juvenile court case where the supervision order entered was “in effect a dispositional order,” such order is final and appealable. (In re J.N. (1982), 91 Ill. 2d 122, 435 N.E.2d 473.) The troublesome problem here is that from the record the court below clearly intended to continue the cause and place the minor under supervision pursuant to section 4 — 7(l)(a), but also expressly found the minor “guilty” of the two allegations of delinquent acts set forth in the petition in apparent conflict with the section 4 — 7(l)(a) language which allows an order of continuance under supervision after hearing evidence at a trial “before noting in the minutes of the proceeding a finding of whether or not the minor is a person described in Section 2 — 1.” Also, in contrast to In re J.N., where the supreme court implied an adjudication of wardship under the facts present therein, here the trial court specifically found that the best interests of the minor and of the public do not require wardship.

My observations thus far are not in disagreement with the conclusions in the majority opinion. Where I depart is that I believe we should disregard the findings of guilty of the two allegations of delinquency, as it is absolutely clear on this record that the trial court intended to enter an order of continuance under supervision pursuant to section 4 — 7(l)(a). This being so, the supervision order entered below is not final and the trial court still has jurisdiction to vacate its findings of guilty.

Section 4 — 7(l)(a) provides for an order of continuance under supervision even where the minor contests the petition in an evidentiary hearing. It seems to follow logically that once there is an evidentiary hearing the trial court will normally state whether the facts alleged in the petition have been proved. If the facts are not proved, the petition is dismissed. If the facts have been proved, the Juvenile Court Act in section 4 — 7 provides for a comprehensive scheme of supervision, distinct from the supervision provision for adult offenders under the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6— 1, 1005 — 6—3.1), and significantly different from the kinds of other dispositional orders in juvenile cases provided for upon an adjudication of wardship. (See Ill. Rev. Stat. 1983, ch. 37, par. 705 — 2.) As we said in In re A.M. (1981), 94 Ill. App. 3d 86, 89-90, 418 N.E.2d 484, the statutory provision for supervision “promotes the simultaneous goals of protecting the minor from the taint of a ‘record,’ and [enables] the court to rehabilitate the minor and protect the public.”

The minor’s choice to seek appellate review of the trial court’s adverse finding in a contested hearing is protected, as the objection to a continuance under supervision by the minor, his parent, guardian, responsible relative, his attorney, or the State’s Attorney prevents the entry of such an order. (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 7(2).) Nevertheless, if the minor does not object to a continuance under supervision, the trial court may choose to enter an order for a continuance under supervision, which is a nonfinal, unappealable order. In the instant case, the minor’s attorney asked the court to place the minor under an order of continuance under supervision in conformance with a recommendation in a report submitted by the department of court services. Under these facts, I would find the trial court entered a valid, but unappealable, order of a continuance under supervision, and would dismiss the appeal. As the trial court still has jurisdiction, it can vacate the guilty findings in order to be in compliance with section 4 — 7(l)(a).

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE HOPF

delivered the opinion of the court:

Upon denial of the petitions for rehearing, we note that in his petition for rehearing respondent M.W.W. contends that this court would risk subjecting him to double jeopardy if it does not review the sufficiency of the evidence against him. (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; In re McGovern (1978), 62 Ill. App. 3d 1049, 379 N.E.2d 937.) We have reviewed the record and the merits of respondent’s contentions and find that there is sufficient evidence to establish the corpus delicti of the offenses and M.W.W.’s guilt of those offenses beyond a reasonable doubt.

The petitions for rehearing are denied.

SEIDENFELD, P.J., concurs.


author: JUSTICE BARRY

text:
    JOHN G. MOTE, Plaintiff-Appellee, v. MONTGOMERY WARD & COMPANY et al., Defendants-Appellants.
    Third District
    No. 3—83—0222.
    Opinion filed June 29, 1984.
    Rehearing denied August 17, 1984.

      Stuart R. Lefstein and Robert T. Park, both of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellants.
    Jack L. Brooks, of Laird, Chickris & Brooks, of East Moline, for appel-lee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff John C. Mote received a head injury as a result of a fall while painting the basement stairwell of a private home. He subsequently brought a products liability action against the seller and manufacturer of the aluminum stepladder which he was using at the time of injury, and following a jury trial, he was awarded $125,000 in damages. Defendants Montgomery Ward and Company and Consolidated Aluminum Corporation have appealed from the judgment entered on the jury’s verdict.

According to the evidence adduced at trial, on June 23, 1978, plaintiff and his son Dennis Mote placed a plank between two ladders to use as a scaffold to reach the ceiling and walls of the stairwell. A new six-foot aluminum ladder was placed on the floor at the top of the stairway and an eight-foot extension ladder was braced between the wall and a basement step near the bottom. The plank was placed on the second step from the bottom of the stepladder at the top of the stairs and on the top rung of the extension ladder in the stairwell with the end of the plank butted against the basement wall. The plank sloped downhill somewhat. The son then left to launder some drop cloths, and plaintiff began painting in the stairwell. He climbed up on the stepladder to reach up into a corner. He was holding a five-gallon bucket of paint and a roller, and as he stepped back down from the stepladder onto the plank, the ladder collapsed, and he fell down the basement stairs, striking his head against the wall on the way down. There were no other witnesses to the fall. Plaintiff, who was 76 years old at the time of the accident, was able to get up and continue working. He borrowed a wooden stepladder belonging to his customer and completed the stairwell that day.

Plaintiff’s son returned to the house some time after the accident and took the broken ladder out to his father’s truck. According to his testimony, the right side rail of the ladder was broken in two horizontally below the second step, but the step was still attached to the rail above the break. Plaintiff also stated that the right rail was broken and that the left rail was twisted and crumpled up after the accident. Plaintiff introduced into evidence a sales ticket which indicates that plaintiff returned the ladder to Montgomery Ward on July 18, 1978, and was given approximately $25 credit on a new ladder costing $35. The ticket is marked “Exchange.” There is no evidence that plaintiff mentioned any bodily injury resulting from the accident, and it appears that the ladder was destroyed by Montgomery Ward, since there was no documentary evidence to the contrary nor of its return to the manufacturer.

Shortly after the accident, plaintiff began to suffer from headaches and gradually his physical and mental condition deteriorated. He suffered from severe memory loss and frequently became disoriented and incontinent. He finally was taken to a hospital on July 29, 1978. It was determined that plaintiff had suffered a subdural hema-toma, and brain surgery was performed to remove the old blood and relieve the pressure inside his skull. The injury was determined to be one or two months old at the time of surgery. Plaintiff’s condition is much improved since the surgery, but he has not recovered the same mental sharpness and vigor that he had before the accident. He is more forgetful, cannot work as much, and is more often confused than before his injury.

The only witness called by defendants was their expert, Edward Cook, the former manager of engineering for Consolidated Aluminum, who described in detail the method of manufacture and testing procedures used on six-foot aluminum ladders. Photographs were introduced showing that each step of an aluminum ladder of similar construction could bear 900 pounds of weight. These tests were done to verify the design but not to check the quality of products actually placed on the market. Cook explained that he received notice of plaintiff’s claim in May of 1979, and that all records of the company relating to ladder manufacture and design specifications, sales to Montgomery Ward, and returned ladders were destroyed in October of 1979, after Consolidated Aluminum stopped manufacturing ladders and other aluminum products. Cook testified that he could not give an opinion as to how this accident occurred, but he stated that a properly manufactured ladder would never break under a 200-pound load such as occurred here. He said a damaged ladder would be the result of a fall rather than the cause. The court excluded from evidence testimony by Cook that the most probable cause of this accident was either the other ladder, the extension ladder, slipping off the lower step, or the plank coming off the extension ladder, thereby damaging the subject stepladder as the plank rotated or fell.

As aforesaid, the verdict returned by the jury awarded plaintiff damages of $125,000, prompting this appeal. Defendants argue that the evidence was not sufficient to support a verdict in favor of plaintiff, that the $125,000 verdict was excessive, and that the reconstruction testimony of defendants’ expert was erroneously excluded. We affirm.

Defendants first contend that a judgment notwithstanding the verdict should have been entered against plaintiff because there was no evidence that the ladder was unreasonably dangerous or that it failed prior to the accident or from which such inferences could reasonably be drawn. As defendants analyze the evidence, plaintiff’s testimony that the ladder broke should not be taken literally, since he was facing away from the ladder as he stepped down onto the plank and did not see the ladder break. It is further argued that if plaintiff’s testimony was not accurate, then the ladder and plank collapsed in some unknown fashion. Defendants go on to assume that, in the absence of an eyewitness to the breaking of the ladder, the proof of a defect hinges on the description of the post-occurrence condition of the ladder by plaintiff and his son. Defendants insist that greater weight should be given the admitted testimony of their expert, who said that the breakage of 99% of all ladders is caused by the trauma occurring after the fall. Defendants further contend that other extrinsic causes were not excluded by plaintiff’s evidence, and also the failure to produce the ladder or to have had it examined by an expert is fatal to plaintiff’s case.

We think these arguments are unpersuasive. The Supreme Court of Illinois has said, in Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 574-75, 357 N.E.2d 449, 452:

“A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed ‘to perform in the manner reasonably to be expected in light of [its] nature and intended function.’ ***. As the court said in Lindroth v. Walgreen Co., 407 Ill. 121, 134, [94 N.E.2d 847, 853], ‘reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion,’ and on review ‘[t]he inquiry *** is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached.’ ” (Emphasis added.)

Plaintiff’s evidence indicates that the ladder had been purchased a few days prior to the accident and that it had been used only at this one house. Plaintiff’s son had used it to paint around windows, and in doing so had stood only upon the bottom step. Although defendants suggest that we should not take literally plaintiff’s testimony that he felt the ladder break under him, we consider the question of the meaning of plaintiff’s language strictly a matter for the jury. Since the jury obviously chose to believe that plaintiff meant exactly what he said, it is beyond the function of a reviewing court to substitute our judgment for that of the jury. We also are convinced that the testimony of the expert is not necessarily in conflict with the plaintiff’s theory that the accident was caused by a defective ladder. This ladder was not tested before leaving the manufacturer, and the expert quite clearly testified that a properly manufactured ladder would tolerate the weight and force applied to the step and side rails by plaintiff here, and that failure of the ladder would be impossible under these circumstances. In a similar ladder case, the supreme court said that it was reasonable for the jury to conclude that there was an absence of abnormal use and that the ladder failed to perform in the manner reasonably to be expected in light of its intended function. The court further said, “[I]t was not necessary that the defect manifest itself before the ladder left [defendant’s] control.” (Gillespie v. R.D. Werner Co. (1978), 71 Ill. 2d 318, 323, 375 N.E.2d 1294, 1296.) Consequently, we hold that the trial court did not err in refusing to grant a judgment n.o.v. in favor of defendants.

Defendants advance a closely related argument: that the jury’s verdict was contrary to the manifest weight of the evidence, which is a lesser standard to meet than for a judgment n.o.v. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) However, we are persuaded that the evidence was sufficient to support the verdict under either test, and therefore we need not reconsider the evidence previously discussed.

Defendants next contend that it was reversible error to exclude certain testimony of their expert. Their offer of proof was as follows:

“Q. Mr. Cook, based on your experience with ladders and your experience as an engineer, and based on your investigation of this accident as you have testified to including your visits to the scene, were you able to form an opinion within a reasonable degree of engineering certainty regarding the cause of the fall which Mr. Mote took on June 23,1978?
A. No, I was not.
Q. Tell us why not?
A. Because the facts in this case have never been presented to me with enough conclusion and they have changed so many times that I really don’t know what happened.
Q. Mr. Cook, assuming the description of the accident which Mr. Mote gave in open Court today, do you know within a reasonable degree of engineering certainty any causes which could have produced the damage to the ladder described by Mr. Mote that he observed following the accident?
A. Yes, I do.
Q. What would those be?
A. Based on my experience in this business, I can say that the most probable cause of what I see today is in some fashion either the extension ladder at the bottom slipped off the steps on one side, or the plank came off the extension ladder and that end of the plank dropped and in so doing dropped Mr. Mote down the stairs, and the plank either during rotation or falling would have a tendency to caulk and wedge between the second and third steps of the ladder and that could cause some type of damage, but how much and how severe, I will never know. It probably, based on his testimony that the ladder was somewhat cocked, yet it didn’t tumble completely down the stairs, I think that a plank dropping and wedging in the structure could produce facts as he outlined them from the stand today.”

Defendants characterize the testimony contained in the offer of proof as “reconstruction” testimony, and they argue that it should have been admitted so that the jury would understand the basis for the witness’s opinion. As we have previously held, if expert opinion evidence based upon scientific or specialized knowledge would aid the jury in understanding the evidence, it would be error to exclude it. (Leonard v. Pitstick Lake & Park, Inc. (1984), 124 Ill. App. 3d 580.) On that basis, the trial court correctly permitted plaintiff’s expert to testify in some detail as to defendants’ manufacturing methods, the testing procedures utilized, and as to the load-bearing capabilities of this type aluminum stepladder. As we indicated earlier the expert was also permitted to testify as follows:

“A ladder would never break with a 200 pound weight on it. What causes breakage in 99 percent of all ladders is the trauma that exists after the fall of the ladder. Ladders don’t fail under a load, because there is no way a person, because of the safety factors built into the ladders, can exert anything near an overload, and that’s why there is a four time safety factor, and that’s why they are built that way. You cannot get those kinds of loads on a ladder. So everytime you see problems in a ladder, it is something that is a result of a fall rather than the cause of a fall.”

While this latter testimony was properly admitted, we cannot agree with defendants that the testimony contained in the offer of proof should have been admitted into evidence. It seems clear that the witness was speculating as to a possible alternative cause of the accident (a twisting of the plank or a slippage of the extension ladder at the lower end of the scaffold arrangement) and that speculation was directly contrary to plaintiff’s testimony that the stepladder collapsed. As plaintiff has pointed out, if in fact the plank had slipped at the lower end and had rotated and wedged between the second and third steps of the stepladder, it is not likely that the resulting damage to the stepladder would have been a horizontal break in the side rail below the second step; instead, it seems more logical that the damage would have occurred between the second and third steps where the plank was placed. In that connection, we note that in the offer of proof the witness stated that the plank falling could cause some type of damage to the ladder, “but how much and how severe, I will never know.” We conclude that it was not error to exclude the expert’s speculative testimony.

Defendants’ next assertion of error is that the jury’s verdict was based upon an improper instruction, thereby entitling defendants to either a new trial or remittitur. Defendants rely upon Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413, where the court held that, if the jury was properly instructed on the measure of damages, a reviewing court should not substitute its judgment for that of the jury as to the amount to be awarded. Defendants then reason that if the instructions were improper, the presumption as to propriety of the amount of damages would fail. We agree with these general principles.

Defendants then argue that there was no evidentiary foundation for plaintiff’s instruction No. 2 setting out the elements of damages proved to have resulted from the accident caused by the condition of the ladder. The instruction listed “disability and disfigurement” as the first element and “pain and suffering experienced and reasonably certain to be experienced in the future” as the second element. Defendants contend that there is no evidence that plaintiff will have any pain in the future and therefore that it was improper to include that element in the instruction. Plaintiff, however, calls our attention to the rather extensive testimony of plaintiff and his sons concerning the nature and extent of plaintiff’s injuries, and evidence indicating that those injuries are permanent. In addition, a report by a clinical psychologist indicated that plaintiff suffered from memory loss and organic brain impairment, and the treating physician testified as to physical and mental symptoms that would occur if plaintiff did in fact suffer permanent brain damage. Considering all the evidence relating to plaintiff’s condition, we conclude that the foundation evidence was adequate and the instruction properly included future pain and suffering as an element of damages.

Defendants also contend that the element of damages instruction included an improper duplication in that plaintiff's counsel admitted that disability and future pain and suffering were the same in this case. We consider this issue to have been waived on review because defendants failed to raise it in their post-trial motion.

Defendants also argue that the award of $125,000 is excessive for a man of plaintiffs age. In reviewing the amount of damages, courts have said that the jury’s determination will not be overturned unless the award is so excessive as to indicate that the jury was moved by passion or prejudice (Huston v. Chicago Transit Authority (1976), 35 Ill. App. 3d 428, 342 N.E.2d 190), or unless the amount of the verdict does not fall within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65.) Plaintiff calculates that he had lost at least $64,840 in wages prior to trial, that he would lose $58,000 in future earnings for the remainder of his life expectancy, and that he had incurred $6,816 in medical bills for a total of $129,656, excluding any amount for pain and suffering. We hold that the verdict was within the range of the evidence, indicating that the result was fair and reasonable compensation for this plaintiff.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.


author: JUSTICE SCOTT

text:
    ELEANOR SLEETH, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellants.
    Third District
    Nos. 3—84—0019 through 3—84—0023 cons.
    Opinion filed July 24, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellants.
    Susan Dawson-Tibbets, of Prairie State Legal Services, Inc., of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal is a consolidation of the grant of five petitions for leave to appeal pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306.) Leave to appeal was sought from orders entered by the circuit court of Peoria County in each of the five cases. By those circuit court orders, the lower court reversed final administrative decisions of the Illinois Department of Public Aid (IDPA) which denied applications for and/or terminated assistance to each of the named plaintiffs. The circuit court orders remanded the administrative review actions to the IDPA for new hearings in accordance with the circuit court’s determination that the IDPA’s present hearing process which is conducted via telephone conference fails to comport with the due process clauses of the United States Constitution and Illinois Constitution, and that the IDPA’s administrative process fails to comply with various State and Federal statutes and/or regulations.

Four of the plaintiffs, Eleanor Sleeth, Cora Anderson, Judith Wilson and Lonnie Cannon, were receiving financial and medical assistance on a presumptively eligible basis from the IDEA under the Aid to the Aged, Blind and Disabled (AABD) program. This assistance was terminated when the Peoria County IDPA office learned that each of these plaintiffs had been found to be “not disabled” by the Social Se-' curity Administration (SSA) pursuant to the plaintiffs’ applications to that agency for supplemental security income (SSI). The four plaintiffs were notified that their AABD assistance was going to be terminated.

As a result of the appellate court decision in Watterson v. Miller (1983), 117 Ill. App. 3d 1054, 454 N.E.2d 373, the IDPA revised its procedures for disability hearings on February 4, 1983. After that date the IDPA required all persons who had been terminated from their presumptively eligible AuABD benefits due to a finding of “not disabled” from SSA to submit proof of disability to the local county office within 14 days of the filing of a notice of appeal protesting that termination. All four of these plaintiffs filed a notice of appeal with the Peoria County office of the IDPA. None of these plaintiffs submitted their medical records within 14 days of filing their notices of appeal.

The appeal hearings in these four cases were held by conference telephone with the plaintiffs, their representatives and witnesses, and county office personnel at the Peoria County IDPA office, while the hearing officers were at the Chicago IDPA office. The hearing officers were not able to observe any of the persons who testified.

Each of the four plaintiffs was permitted to testify at the hearing as to their medical condition. None of the plaintiffs were permitted to submit medical records to substantiate the oral testimony regarding this documentary evidence based upon the failure of each of the plaintiffs to submit the documents within the 14-day rule promulgated by the IDEA in the wake of the Watterson v. Miller case.

The final administrative decisions for each of these four plaintiffs affirmed the termination of their AABD benefits, based upon the hearing officers’ conclusions that each plaintiff failed to prove that he or she was permanently and totally disabled.

The fifth plaintiff, Brenda Jackson, received financial and medical assistance from the IDPA under its Aid to Families of Dependent Children (AFDC) program. She was notified that she was going to be sanctioned for the months of May, June, and July, 1983, for her failure to cooperate with the WIN Demonstration Program (WDP). The WDP is designed to help AFDC recipients to locate and obtain employment. The sanction described in the notice consisted of a reduction in the plaintiff’s grant for the months of May, June, and July from $348 per month to $206 per month.

All recipients of AFDC benefits must be registered with the WDP as a condition of eligibility unless they fit into a specified exempt category. One such exemption is for medical reasons. Once registered with the WDP, an individual who fails or refuses to participate without good cause is subject to be sanctioned for three months.

The plaintiff Jackson appealed the IDPA’s decision to impose sanctions, and 24 days later she was given a hearing by telephone conference with the IDEA. The plaintiff, her representatives, and local county office personnel were in Peoria, and the hearing officer was in Chicago. The plaintiff presented testimony that disproved the allegation of her failure of cooperation, and this testimony was challenged with the testimony of local county office personnel.

The hearing officer acknowledged that this case involved a dispute over the facts. Nevertheless, the final administrative decision affirmed the IDPA sanctions, as the hearing officer resolved all disputed facts and issues in the IDEA’S favor.

Each of the five plaintiffs filed a complaint for administrative review in the circuit court of Feoria County. Each plaintiff charged that the IDEA’S conduct of its hearings by telephone conference violated due process and various State and Federal statutes and regulations. In addition, the four allegedly disabled plaintiffs complained of the 14-day rule. They asserted that the IDEA’S requirement that proof of disability be submitted within 14 days of the filing of the appeal is arbitrary and unreasonable and contravenes the equal protection clauses of the Federal and State constitutions. By orders entered in each case, the circuit court reversed the IDEA’S final administrative decisions and remanded the cases to the IDEA for new hearings. The circuit court found that the hearings procedure by telephone conference was both statutorily and constitutionally deficient. Regarding the four allegedly disabled plaintiffs, the circuit court concluded that the 14-day submission of proof of disability requirement deprived those plaintiffs of constitutionally guaranteed due process and equal protection, while also violating State statutes. The Feoria County court gave each plaintiff 45 days prior to the commencement of the new hearing to submit medical records and to have that time extended upon proof of inability to procure the records due to the fault of third parties.

The IDEA appeals the decision of the circuit court and prays that the final administrative decision as previously rendered be affirmed.

At the outset, we note that a reviewing court is not required to consider contentions which are not essential to the determination of the case before it. (Illinois Racing Board v. Hammond (1977), 56 Ill. App. 3d 609, 371 N.E.2d 1189; Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 368 N.E.2d 990.) Thus, if the procedures complained of by the plaintiffs are invalid because they contravene State statute, it is unnecessary to consider whether those same procedures might be constitutional if they were allowed by statute. Such issues, those that explore what might be constitutional, are abstract questions which are not properly reviewable. Accordingly, we must first determine whether the procedures utilized by the IDEA are consistent with the Illinois Eublic Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 1 — 1 et seq.), the statutory authority under which the IDEA conducts its activities.

The Illinois Public Aid Code sets forth procedures for appeals by applicants or recipients of assistance under both the AABD and AFDC programs:

“Upon receipt of an appeal the Illinois Department, Public Aid Committee, or Commissioner of Appeals, as the case may be, shall review the case. The appellant shall be entitled to appear in person and to be represented by counsel. He shall be afforded an opportunity to present all relevant matter in support of his claim for aid, or his objection to (a) termination of aid, or (b) the amount of aid, or (c) a determination to make a protective payment.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 23, par. 11 — 8.1.
“The appeal shall be heard in the county where the appellant resides. However, if the appellant is outside the state, the Illinois Department, Public Aid Committee, or Commissioner of Appeals, as the case may be, may take depositions from him and his witnesses or permit the appellant to present all relevant matter in support of his claim through witnesses acting in his behalf, or both by deposition or by testimony of witnesses, depending upon the circumstances in each case.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 23, par. 11 — 8.2.

The parties to this appeal disagree about the meaning of the statutory mandate that the appellant be entitled to appear “in person” at the review of his case and that such review be heard “in the county” where the appellant resides.

The IDPA asserts that the hearing was conducted in the Peoria County local office, the county in which each appellant resided, and at the time each appellant was personally present. The presence of the hearing officer in Chicago, connected to the Peoria County office by conference telephone, does not, the IDPA asserts, contravene the prescribed statutory procedures. In contrast the plaintiffs argue that the statute provides for their rights to be personally present at the review of their appeal, and in each case the review took place in Chicago, not in Peoria County.

The issues raised are ones of first impression. It appears that no Illinois reviewing court has heretofore faced the question of what constitutes an “in person” review or of what determines the place of hearing. With the advent of modern telecommunications technology, these are questions which may be raised more frequently in the future than they have been in the past.

Webster’s New Collegiate dictionary defines “in person” as follows:

“Of or relating to the actual presence of the subject.” (Webster’s New Collegiate Dictionary (1981).)

This definition offers little assistance in resolving the instant dispute, as it begs the question, actually present where? It seems obvious, and indeed circular, to conclude that this means present at the hearing, which begs the question, where is the hearing?

The essence of a hearing is the opportunity to be heard by the listener. One can be heard by written affidavit, by closed circuit television, by video tape recording, by telephone or by actual appearance. Each method offers an opportunity to be heard, but only with the last mentioned method is the situs of the hearing — is the place where the listener hears — in the actual presence of the speaker.

In the instant case, the listener was not one of the local office personnel in Peoria, but the officer or officers located in Chicago. The speakers were the plaintiffs, and under the procedures followed by the IDPA, the plaintiffs were not present at the situs of the hearing. It follows then that the hearing was not conducted in the county of the plaintiffs’ residence. We must conclude that the procedures utilized by the IDPA for telephone conference hearings failed to meet statutory requirements of the Illinois Public Aid Code.

The IDPA adopted the 14-day rule following the decision in Wat-terson v. Miller (1983), 117 Ill. App. 3d 1054, 454 N.E.2d 373, with its IDPA manual release No. 83.5. The circuit court concluded that this rule was invalid as it was adopted by the IDPA without compliance with the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1001 et seq.). On appeal, the IDPA concedes that the provisions of the Illinois Administrative Procedure Act were not followed when the agency adopted the 14-day rule. However, it asserts that the statement contained in manual release No. 83.5 did not constitute a rule within the statutory definition. (Ill. Rev. Stat. 1983, ch. 127, par. 1003.09.) In further support of its position, the IDPA cites the recent decision of Mobil Oil Corp. v. Johnson (1982), 93 Ill. 2d 126, 442 N.E.2d 846. In that decision the supreme court explained the statutory definition of rule, and the exceptions to that definition dealing with “intra agency Memoranda.” The statement there in question dealt with an explanation to the auditors of the Department of Revenue concerning the mechanics involved in computing the use tax. The court concluded that since the statement was an explanation of existing policy to department employees, it was not a rule within the definition of that term as used in the Illinois Administrative Procedure Act.

We believe the 14-day requirement, as stated in manual release No. 83.5, is a much different type of rule than the subject of the litigation in the Mobil Oil case. The rule in question affects private rights and procedures available to persons outside the IDEA. This type of statement by an agency is specifically included within the definition of rule under the Illinois Administrative Procedures Act. As such, we believe it is a rule which can only be adopted in accordance with the procedures set forth in that act. Where rules are not adopted consistent with the statutory procedures, the rules are not valid. (Ill. Rev. Stat. 1983, ch. 127, par. 1005(b).) It follows then that the hearing officer in the cases before us incorrectly relied on the validity of the 14-day rule denying admission into evidence of the medical records proffered by the plaintiffs.

For the reasons above stated, we believe the hearing procedures followed by the IDEA violated State law. Whether those procedures might be constitutional should the legislature choose to amend the law are abstract questions which we cannot review. The judgment of the circuit court requiring these cases to be remanded to the IDEA for a new hearing is clearly within that court’s authority. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 111(a)(6).) Since the circuit court correctly applied the law in reviewing the administrative actions and ordering a remedy, we affirm that decision.

The decision reached and the reasoning in support thereof is applicable not only to the instant case but also to those consolidated with it, namely, cases numbered 3 — 84—0020, 3 — 84—0021, 3 — 84— 0022 and 3-84-0023.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author:
JUSTICE SCOTT
      JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN FINTON STEVENS, Defendant-Appellant.
    Third District
    No. 3-83-0677
    Opinion filed July 20, 1984.
    Rehearing denied August 22, 1984.
    HEIPLE, J., dissenting.
    John H. Bisbee, of Macomb, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, John Finton Stevens, was convicted of driving while license suspended. (Ill. Rev. Stat. 1983, ch. 951/2, par. 6 — 303). He was sentenced to 270 days’ imprisonment in the Tazewell County Jail and a fine of $100. The defendant appeals his conviction, raising issues related to the Secretary of State’s notice that the defendant’s license was suspended.

On December 21, 1982, the defendant was issued a citation for driving while license suspended. The defendant filed a pretrial motion to dismiss alleging that the statute, both on its face and as applied, is void and unconstitutional as a violation of due process. The motion condemned the statute because it allows conviction regardless of whether the defendant received notice of revocation. On July 8, 1983, the trial court heard and denied the motion.

According to the defendant’s report of proceedings, at the July 27, 1983, bench trial on the citation, the arresting police officer testified for the State. The State also introduced, over the defendant’s objection, a certified copy from the Secretary of State (hereinafter Secretary), of an order suspending the defendant’s driver’s license from December 9, 1982, to June 9, 1983. The Secretary’s order of suspension states that notice of the suspension was mailed to the defendant on December 2, 1982. The order bears no receipt for a prepaid postage mailing to the defendant’s last known address.

At trial the defendant testified in his own behalf. He sought to give evidence regarding his lack of notice of the suspension. The State objected to the testimony, and the court sustained the objection. The court found the defendant guilty as charged.

In his first issue the defendant argues generally that a valid conviction for driving while license suspended requires that the defendant was given proper notice of the fact of his suspension. The specifics of his argument are a bit unclear. The State makes a reasonable interpretation of the defendant’s opening brief and addresses the question whether the court properly excluded evidence that the defendant did not receive actual notice of suspension.

The State correctly argues that the offense of driving while license suspended involves absolute liability. Conviction requires only proof that the defendant drove in violation of the statute at the time his license was suspended. (People v. Espenscheid (1969), 109 Ill. App. 2d 107, 249 N.E.2d 866.) The defendant’s actual receipt of notice or knowledge of suspension is immaterial to the offense. People v. Twitty (1975), 25 Ill. App. 3d 1065, 324 N.E.2d 222.

However, the State’s argument does not dispose of the issue. It appears that, beyond the argument which the State addresses, the defendant takes the position that there is no suspension unless the Secretary complies with statutory notice requirements. (Ill. Rev. Stat. 1983, ch. 951/2, pars. 6 — 206, 6 — 211.) The defendant argues, then, that the Secretary’s record that his office mailed notice of suspension to the defendant merely raises a rebuttable presumption of proper notice. The defendant argues that he should have been allowed to challenge the suspension underlying the instant conviction by presenting evidence rebutting the presumption that the Secretary complied with statutory notice requirements.

We address the argument only briefly. The defendant relies in his argument on two opinions published only in abstract form. As the defendant does not provide this court with copies of the opinions’ texts, we need not consider them. Uniform Appellate Rule 8, Ill. Rev. Stat. 1983, ch. 110A, par. 908; Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865.

We now address the defendant’s second issue. The defendant’s precise theory is unclear. We determine, however, that the defendant presents alternative arguments. We interpret the argument as framed by the opening brief to be that due process of law under both the fourteenth amendment of the United States Constitution and the Illinois Constitution requires that a defendant receive actual notice of his suspension before he can be convicted under the instant statute. The defendant contends that he did not receive proper notice. He argues, then, that if his conviction and jail sentence stand, he will have been deprived of his elemental liberty interest without having had either notice of suspension or an opportunity to prove that he had no notice.

The defendant cites substantial authority on the due process roles of notice and hearing. We, however, are not persuaded by his presentation.

We note that the Supreme Court of Illinois has recently upheld the constitutionality of other statutes imposing strict liability. (People v. Brown (1983), 98 Ill. 2d 374, 457 N.E.2d 6; People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70.) Based upon these cases, we conclude that due process does not require that a defendant convicted under the instant statute receive actual notice of suspension.

In Brown, the court upheld the constitutionality of section 4— 102(a)(4) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 4 — 102(a)(4)). That statute creates the offense of possessing a motor vehicle with its vehicle identification number removed or falsified. The statute applies to a possessor of such a vehicle who has no knowledge that the number is removed or falsified. In upholding the statute as a valid exercise of police power, the Brown court determined that the statute fell into the category of regulatory measures designed to promote the public welfare and safety.

In Ziltz, the court upheld section 11 — 501(a)(1) of the Illinois Vehicle Code, which provides that one shall not drive or be in actual physical control of any vehicle when the alcohol concentration in his blood or breath is 0.10 or more. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11— 501(a)(1).) The offense includes no mental state.

The instant statute prohibits certain driving by any person whose driver’s license is revoked or suspended. The Illinois Vehicle Code does not require that the defendant driver has received actual notice of his suspension. In that sense, the statute imposes strict liability for a driver of a motor vehicle who is currently deprived of his license to drive.

This statute bears a reasonable relationship to the interest of protecting persons and property who might be injured by the driving of disqualified persons. Furthermore, the means which the statute adopts is a reasonable method of accomplishing the desired objective. We do not believe this provision is an arbitrary or unreasonable use of the police power.

Finally, we address what seems to be the defendant’s alternative argument: that due process required he be allowed to present evidence to rebut the presumption established by the Secretary’s records. The presumption which the defendant argues he sought to rebut was that the Secretary had given statutory notice of suspension so that the defendant’s license was, in fact, suspended.

We note at the outset that the defendant presents no authority which we need consider that the Secretary’s certification of proper notice establishes a rebuttable presumption of such notice. We also note that with regard to notice evidence, the defendant’s proposed report of proceedings merely states that the trial court refused the defendant’s testimony “regarding his lack of notice of the suspension.” The briefs refer to the defendant’s complaint that the Secretary’s certificate of suspension bears no receipt of postpaid mailing of notice to an appropriate address. The record does not show, however, whether the trial court excluded the defendant’s testimony as irrelevant evidence of actual notice or as irrelevant evidence of statutory notice. The record also does not show that the defendant made an offer of proof of the specific evidence he sought to present.

An appellant has an affirmative duty to preserve and present an adequate record so that his claim of error can be reviewed. Absent adequate presentation of the record, every reasonable intendment against the defendant is presumed on appeal. (People v. Oelschlager (1980), 85 Ill. App. 3d 695, 407 N.E.2d 222.) Based on the record before us, we cannot find that the defendant’s due process rights were violated by his conviction.

For the reasons stated, the judgment of the circuit court of Taze-well County is affirmed.

Affirmed.

ALLOY, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

A person cannot be guilty of driving while license suspended unless his license has actually been suspended. A license is not suspended until the Secretary of State says so. Thus, an administrative act of the State is a prerequisite to the offense. Because the State makes the final determination as to when a suspension becomes effective, the State is required to give notice of a suspension in writing mailed to the driver’s last known address. (Ill. Rev. Stat. 1981, ch. 951/2, par. 6 — 206(c)(1).) The issue before us is the relevance of a defendant’s allegation that he did not receive notice of suspension.

The majority holds that notice is merely part of a defendant's mental state. Driving while license suspended is a strict liability offense. It requires no mental state. Therefore, the majority argues that a defendant’s lack of notice is irrelevant because it merely establishes that the offense was committed unknowingly.

If notice is irrelevant, then why require it in the first place? Notice is not optional, it is mandatory, as it should be when an administrative act must precede the offense. To say that notice is irrelevant because a defendant is charged with an offense which is malum pro-hibitum merely ignores the argument. Although the question of notice necessarily involves a defendant’s state of mind, notice is more properly associated with procedural due process. If the State makes a prima facie showing of compliance with section 6 — 206(c)(1) and yet the defendant fails to receive actual notice, has the defendant received due process? I think not. The problem is then compounded when courts refuse to permit the defendant to attempt to prove lack of notice. This is fundamentally unfair, especially when the offense carries with it a potential jail term.

If the notice requirement is to have any meaning, a defendant who claims to have received no actual notice must be permitted to present his proof in court. Under the present statute, the dispute over notice would boil down to the State’s word against the defendant’s. The State would show that notice was deposited in the mail, postage prepaid, and the defendant would respond that he never received it. The only way to avoid such a dispute is by legislative amendment requiring that notice be sent by certified mail. Of course, the burden would be on the defendant to prove that he kept the State apprised of his current address. Just as it is unfair to deny a defendant actual notice of a suspension, it would also be unfair to expect the State to keep track of a person in our highly mobile society without notice of change of address.

For these reasons, I would remand the cause in order to permit the defendant to offer evidence of his alleged lack of notice. Therefore, I respectfully dissent.


author: JUSTICE HEIPLE

text:
      In re T.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.M., Respondent-Appellant).
    Third District
    No. 3—83—0640
    Opinion filed July 25, 1984.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On August 29, 1983, the minor entered admissions to two delinquency petitions and was adjudged a delinquent minor. Prior to his dispositional hearing, the minor was arrested and interrogated concerning a burglary and theft not related to the delinquency petitions. After waiving his Miranda rights, the minor confessed to the burglary and theft. The minor was not charged, but the confession was used at his dispositional hearing over the objection of counsel. The minor was committed to the Department of Corrections (D.O.C.).

On appeal, the minor argues: (1) that his confession should not have been admitted at the dispositional hearing because he did not waive his sixth amendment right to counsel; and (2) his commitment to the D.O.C. was improper because the social investigative report did not inform the trial judge of sentencing alternatives. We affirm.

Generally, the sixth amendment right to counsel applies only to interrogations pertaining to offenses for which a defendant has already been charged. This right does not extend to an interrogation about an unrelated offense for which the defendant has not been charged. (See, e.g., United States v. Masullo (2d Cir. 1973), 489 F.2d 217, 223.) However, where questioning in an unrelated offense has been engineered to create evidence to be used at the trial of the charged offense, the right to counsel applies during questioning. United States v. Moschiano (7th Cir. 1982), 695 F.2d 236; United States v. Anderson (5th Cir. 1975), 523 F.2d 1192.

In Masehiano, the defendant’s uncounseled post-indictment statements were used against him at trial. The court of appeals held that the statements were admissible because they were elicited during investigation of a crime independent of and occurring after the crime for which the defendant was being tried. In contrast, Anderson involved uncounseled post-indictment statements obtained during an undercover sting operation designed to provide the State with evidence to use at trial for a previously charged offense. We find the present case to be distinguishable from Anderson and more similar to Mas-chiano.

Here, the police were conducting an independent investigation in order to solve two crimes unrelated to the minor’s prior offenses charged in the delinquency petitions. There was no sting operation nor was the confrontation between the police and the minor engineered for the purpose of creating evidence to be used at the disposi-tional hearing. Under these circumstances, there was no sixth amendment right to counsel, and the confession was admissible at the dispo-sitional hearing.

Next, the minor argues that he should be given a new dis-positional hearing because the social investigative report did not contain information about special resources which might assist in the minor’s rehabilitation. Section 5 — 1(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 1(3)) requires only that the social investigative report contain information about special resources known to the investigating officer. Although the report did not list all alternative placements, the court was made aware of such information via in-court testimony. Thus, any technical defect in the report was of no consequence.

The report discussed the possibility of placing the minor with an aunt but rejected this alternative because the aunt, believing that the minor was in need in psychiatric help, did not wish to care for him at this time. At trial the investigator testified that placement at Rosen-crance Memorial was also considered and rejected because the minor had refused to cooperate with staff members during a previous stay. The investigator had not been instructed to look into other alternatives.

The disposition of a juvenile rests within the discretion of the trial judge. His order will not be overturned unless it is contrary to the manifest weight of the evidence. (In re B.L. (1980), 90 Ill. App. 3d 789.) Here, the court relied upon the minor’s social history report and was aware of all alternatives known to the investigating official. The minor’s commitment to the D.O.C. is supported by the evidence and will not be disturbed.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.