author: JUSTICE REINHARD

text:
      In re ADOPTION OF MICHELLE SUE MANTZKE, a Minor, et al. (Dennis N. Meyerhofer et al., Petitioners-Appellants, v. Katherine Meyerhofer Massion, Respondent-Appellee).
    Second District
    No. 83—522
    Opinion filed February 1, 1984.
    Rehearing denied March 15, 1984.

      Robert A. Bush, of Bush & Bush, of Mount Prospect, for appellants.
    James W. Richardson, of Nack, Richardson & Kelly, of Galena, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Petitioners, Dennis and Judith Meyerhofer, appeal from an order granting the motion of respondent, Katherine Meyerhofer Massion, to vacate a judgment for adoption in favor of petitioners as it applied to the minor children, Edward Jay Meyerhofer and Jacquelyn Kay Meyerhofer, and denying petitioners’ petition to adopt those two minor children. Respondent does not appeal from the judgment of adoption of John Baukley Meyerhofer, an adult male, by petitioners in these same proceedings below.

Petitioners raise two issues on appeal: (1) whether the trial court committed reversible error in its ruling to vacate the judgment of adoption entered December 29, 1982; and (2) whether the trial court committed reversible error when it denied the adoption of the two minor children of the parties.

While counsel for respondent has filed what is labeled as a “courtesy brief,” it does not comply with the requirements of Supreme Court Rule 341(f) (87 Ill. 2d R. 341(f)) and will be stricken. This case will therefore be reviewed under the guidelines set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Petitioners filed a petition for adoption on August 20, 1982, alleging in count I that they were married and wished to adopt Michelle Sue Mantzke, bom October 9, 1967, and that Judith was Michelle’s natural mother and consented to the adoption while Danny Lloyd Van Houten, the natural father, was an unfit parent making his consent unnecessary. (The court later granted the adoption of this child and no appeal was taken from this judgment.) Count II alleged that petitioners wished to adopt John Baukley Meyerhofer, bom on August 27, 1963, Edward Jay Meyerhofer, bom on March 1, 1966, and Jacquelyn Kay Meyerhofer, born February 19, 1968, that the children were in the custody of and resided with petitioners, that Dennis was the natural father of these three children and consented to the adoption, that Katherine Meyerhofer Massion, the natural mother, had abandoned and deserted her children for a period in excess of five years and had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the children, and that Katherine Meyerhofer Massion was thus an unfit parent and her consent to the adoption was unnecessary.

The court appointed a guardian ad litem to represent the children. At a hearing held on December 29, 1982, counsel for respondent stated that while he had notified his client of the hearing date, he had found out she was in Wisconsin and could not be reached by telephone. The trial court denied a motion for a continuance, but stated that counsel could contact his client within 30 days and “assuming proof is sufficient today, *** you’ll have the right to open it up.”

Petitioners presented evidence at the hearing which showed that following the dissolution of the marriage of Dennis Meyerhofer and respondent, Dennis was awarded custody of the three children from that marriage, John Baukley, Edward Jay, and Jacquelyn Kay. Respondent was given visitation rights. Dennis subsequently married Judith in 1970, and the children resided with both of them. Since 1977, respondent had not exercised her visitation rights, had not sent the children any cards or presents, and had not called Dennis or Judith concerning the health or schooling of the children. The three children had signed consents to be adopted. Edward testified that he and his older brother had gone to visit respondent two or three years earlier but that respondent had not contacted them since then. Both Edward and Jacquelyn testified that they wished to be adopted.

The trial court found respondent unfit by reason of desertion and failure to maintain a reasonable degree of interest, concern or responsibility as to the children’s welfare, and judgment of adoption for John, Edward, and Jacquelyn was entered for petitioners on December 29, 1982.

Respondent filed a motion to vacate on January 12, 1983, asserting four separate grounds to set aside the judgment. The trial court stated it would grant the motion to vacate and allow respondent to present evidence because it had previously denied a motion to continue the trial with the understanding that such a motion could be filed within 30 days of the judgment. Since the birth certificates on the adoption judgment were being processed “in Springfield,” the court then indicated it would not formally vacate the judgment then, but would allow respondent to present evidence on the merits of the adoptions at a subsequent hearing.

At that hearing on the motion to vacate, respondent testified that after her divorce in 1968 from Dennis Meyerhofer, she exercised her visitation rights. She began to notice the children experiencing stress from going back and forth between parents. The children frequently expressed a desire to live with her. Respondent stated that the children told her they were not allowed to mention her or what they had done over the weekend when they went home. The petitioners told her that there was a discipline problem after the children returned from visits and blamed respondent’s leniency, although respondent claimed that her present husband was extremely strict with the children. His excessive strictness, in fact, bothered her.

She related that she had come from a divorced family where she was torn between both parents and she did not want her children to suffer that same experience. She chose to give up her visitation rights until the children were of an age that they could visit or call on their own, without any stress or feelings of guilt. She said she explained her feelings at the time to the children and told them that she loved them, that she would always be there if they needed her for anything, and that they could contact her on their own. She felt the children were in a good home with their father.

She further testified that she ran a store and that the children came by the store twice when she was not there. Jackie had called three or four times over the years, although respondent said in the background on each of those calls she heard another child threatening to tell on Jackie for making the call. She ran into the boys once while on a trail ride. John stopped by the store once when he needed her signature to join the Air Force. She said that she never refused to see them, never intended to give up her rights as their mother, and did not understand why an adoption was necessary when older children were involved. At the time she stopped visitation, her minister suggested that she write her children letters whenever she felt like it, keep them, and some day she could give them to the children. She stated she did write and keep these letters and also kept newspaper clippings about the achievements of the children.

On cross-examination, respondent testified that although she lived in a substantially large house after her remarriage, she did not try to obtain custody because her new marriage needed a chance to become cemented. Her new husband did not like the travel involved in picking up and returning the children. Respondent lived in Freeport and the children and the petitioners in Elizabeth, about 35 miles away. Respondent admitted that the petitioners loved the children and raised them as best as they could. She said that when she told Judy Meyerhofer of her decision not to see the children anymore when Judy came to pick up the children’s belongings, Judy was upset and could not understand how respondent could do that to the children. Respondent said she did not send any birthday or Christmas cards or presents, or have any communication for six years with the children because that would have been against her unilateral agreement not to interfere in the children’s lives. She admitted that the children did not agree to this. She never called their schools to find out how they were doing. If there had been a problem, she could have terminated the nonvisitation. She conceded that she opted to take in the children of her husband and exclude her own children from her household.

Respondent stated that her husband did not love the children and she felt someone who did not love them should not discipline them. She said that she and her husband would have arguments during visitation. While she lived in a house that could accommodate the children, she never sought custody because her husband would not have permitted it. She did not make any attempt to contact the children after they came to her shop when she was not there.

Respondent’s brother, Timothy Lowry, testified that John had inherited a ranch worth about $500,000 from his grandmother and that the three children, along with his three children, would split the remainder of the estate after graduating from college or reaching a certain age. He confirmed that when he and respondent were children they experienced problems being from a divorced family and respondent didn’t want to put the children through that. Respondent talked with him before she made her decision to stop seeing her children.

John Baukley Meyerhofer testified that five or six years earlier respondent told the children that she would not see them anymore. He said that one of the reasons was that it was causing problems between respondent and her husband, but could not remember the other reasons. He remembered the two of them fighting over the children a lot of the time. He also recalled respondent saying that their grandmother was dead and would not be “hassling her anymore” because the grandmother wanted the children to live with respondent or at least see her more often.

Other witnesses testified, but their testimony will not be set out as it does not add to the material facts already adduced.

The trial court found that the prima facie case at the original hearing as to respondent’s intent was rebutted by her testimony as to what her actual intent was and that there was insufficient proof of unfitness so as to deprive her of her rights as the natural mother of the children. The motion to vacate the previous judgment of adoption was granted as it pertained to Edward and Jacquelyn, and the petition to adopt then was denied.

Petitioners first contend that the trial court committed reversible error by granting the respondent’s motion to vacate the judgment of adoption of the two minor children where the basis for that order of vacation was the intent of respondent not to give up her parental rights to the children which was not one of the grounds specially alleged in the motion to vacate.

In a nonjury case, a post-trial motion to vacate a judgment filed within 30 days of entry of judgment is addressed to the trial court’s sound discretion. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203; In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 137, 435 N.E.2d 897; In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 171-72, 411 N.E.2d 519.) Here, the trial court had previously stated at the time it denied the motion to continue the trial that respondent would have the right “to open it up,” should adoption be granted, within 30 days. Furthermore, while the motion to vacate does not expressly allege as a ground that her intent was not to give up her parental rights, respondent did allege she did not abandon or desert the children by agreement with the petitioners, and it was in the best interest of the children at the time which would be shown at a hearing. Under these circumstances, and no prejudice to petitioners having been shown, we find no abuse of discretion in the granting of the motion to vacate.

The second issue, as presented by petitioners, is whether the trial court committed reversible error in denying the adoption of the two minor children. The pivotal question is whether the finding below that respondent was not an “unfit person” was against the manifest weight of the evidence.

The Adoption Act provides in relevant part:

“Except as hereinafter provided in this Section, consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court, by a preponderance of the evidence, to be an unfit person as defined in Section 1 of this Act, or the parent of an adult sought to be adopted.” (Ill. Rev. Stat. 1981, ch. 40, par. 1510.)

The Act further defines “unfit person” as follows:

“D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption, the grounds of such unfitness being any one or more of the following:

(a) abandonment of the child;

(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare;

(c) desertion of the child for more than 3 months next preceding the commencement of the Adoption proceeding; ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 1501(D).)

Together, these provisions require that a natural parent who refuses to consent to the adoption of his child, as here, must be shown to be unfit under one of the statutory grounds set forth.

The case law is well established in defining the statutory bases upon which a person may be found to be an “unfit person” by reason of abandonment, desertion, and failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare. Abandonment means conduct on the part of a parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. (Stalder v. Stone (1952), 412 Ill. 488, 495-96, 107 N.E.2d 696; In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 672-73, 417 N.E.2d 787.) Desertion is distinguishable from abandonment and connotes conduct on the part of a parent which indicates an intention to permanently terminate custody over the child but not to relinquish all parental duties and claims. (In re Adoption of Markham (1981), 91 Ill. App. 3d 1122, 1125, 414 N.E.2d 1351; In re Overton (1974), 21 Ill. App. 3d 1014, 1018, 316 N.E.2d 201.) Unfitness by reason of failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare is self-explanatory, and it is the parent’s efforts to carry out parental responsibilities, rather than their success, which should be considered. In re Taylor (1975), 30 Ill. App. 3d 906, 907-10, 334 N.E.2d 194.

An adoption severs the rights and interests of the natural parents; it permanently terminates the legal relationship between parent and child. (In re Abdullah (1981), 85 Ill. 2d 300, 306, 423 N.E.2d 915; In re Jones (1975), 34 Ill. App. 3d 603, 607, 340 N.E.2d 269.) While formerly clear and convincing evidence was required to support a finding of “unfitness” (In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 673, 417 N.E.2d 787), the statute has been amended and now requires proof by a preponderance of the evidence. (Ill. Rev. Stat. 1981, ch. 40, par. 1510.) The crucial determination in cases alleging abandonment or desertion is whether the parent intended to either abandon or desert the child. (In re Sanders (1979), 77 Ill. App. 3d 78, 84, 395 N.E.2d 1228; In re Overton (1974), 21 Ill. App. 3d 1014, 1018, 316 N.E.2d 201.) The findings of the trial court in an adoption proceeding will not be disturbed on review unless contrary to the manifest weight of the evidence. In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 417 N.E.2d 787.

While these principles of law are well established, the facts presented here are unique and have not been addressed in prior Illinois decisions. This case brings into issue the conflict which arises in the parent-child relationship caused by a dissolution of marriage where the former spouses remarry to others, the noncustodial spouse assumes a new family and responsibilities, and the child or children of the former marriage are legally subject to visitation by the noncustodial parent.

The trial court found that respondent’s actual intent was to do what was in the best interests of her children. The court further found that her decision to forego both visitation and other contact with the children, as initiated by her, on her belief that this avoided conflict and “hassles” harmful to the children, was sincere. There is no directly contradictory evidence of her express intent.

The essence of respondent’s trial testimony was that she came from a divorced family and problems arose from going back and forth between her father and mother which was hard on her as a child; that she noticed during the visitations the children were under stress, and learned that problems arose with the children after visitations; that her new husband was strict with the children and did not have a close relationship with them; that after eight years of visitation, she saw the children were under greater stress; that the children were in a good home with their father and his present wife; that it was best for the children to receive their education, religion, and have life with their father until they were of an age to visit her on their own without any stress and feelings of guilt by their desire to visit their natural mother; that she never chose to give up her rights as a mother although she had ceased visitation and contact for almost six years; that she told the children at the time she ceased visitation and contact with them why she was making this decision and that she would always be there if they needed her for anything and could contact her on their own; that several times Jackie telephoned her while she was out, and she heard this created problems; and that she never refused to see the children.

Respondent’s oldest son John, now an adult, in part corroborated respondent’s testimony, and testified he remembered when his mother informed them she would not see them anymore, but did not remember her reasons except that it was causing problems for his mother and her husband.

Previous decisions in determining unfitness have stressed that the intent of the parent is of paramount importance. (In re Sanders (1979), 77 Ill. App. 3d 78, 84, 395 N.E.2d 1228; In re Overton (1974), 21 Ill. App. 3d 1014, 1018, 316 N.E.2d 201.) While there is direct evidence of a complete lack of visitation for six years and no other form of communication or correspondence with the children initiated by respondent, her expressed intent at trial was not to give up her rights as a parent for the reasons set forth above. The trial court found her intent was not to permanently give up her parental rights to her children and unfitness had not been proved. There is evidentiary support for this conclusion in the record. Even though respondent chose to forego visitation and contact with the children initiated by her, she told them she would always be there if they needed her for anything, she talked with one child several times by telephone, and, on one occasion, did assist her eldest son in signing a form to enlist in the Air Force. There is no evidence that she ever requested to care for the children or assist in their upbringing or support. Her intent was not to relinquish her parental duties or claims. Rather, she ceased her visitation and contact with the children out of a concern and interest in the children’s well being. Whether her reasoning was misdirected is not the issue. She also knew that the children were well cared for in her former husband’s home. In addition, the failure of the respondent to challenge the father’s custody of the children does not demonstrate her intent permanently to terminate custody. (See In re Adoption of Vienup (1976), 37 Ill. App. 3d 217, 345 N.E.2d 742 (Simon, J., dissenting).) Accordingly, we do not find the decision of the trial court to be against the manifest weight of the evidence.

We emphasize that we affirm the decision of the trial court on the peculiar facts and circumstances presented in this record and the findings made by the trial court. Our opinion can in no way be taken as approbation of respondent’s decision. We also make no determination whether respondent was correct in her conclusion that the children were better off not to see or hear from her. No testimony, expert or otherwise, was presented below on that issue. Nor do we have any evidence in this record that the children sought or needed the care, attention or custody of their mother. Although the children here consented to their adoption by petitioners, absent consent or unfitness of the parent, an adoption cannot be granted solely because it may be in the best interest of the child. (In re Jones (1975), 34 Ill. App. 3d 603, 607, 340 N.E.2d 269.) Of course, should the children still wish to be adopted when they become adults in a short while, consent of the respondent then is not required.

For the foregoing reasons, we affirm the judgment of the circuit court of Jo Daviess County.

Affirmed.

HOPF and NASH, JJ., concur. .

      Public Act 83 — 138, effective Sept. 26, 1983, amended this section again back to a clear and convincing standard. (See also Santosky v. Kramer (1982), 465 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388.) The court below applied a clear and convincing evidence standard, and thus the result here is not affected by the amendment nor raised as an issue by the parties.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EUGENE NEWBERRY, Defendant-Appellee. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL BIRCH, Defendant-Appellee. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LAWRENCE HITZ, Defendant-Appellee.
    Third District
    Nos. 3—83—0492, 3—83—0493, 3—83—0494 cons.
    Opinion filed February 10, 1984.

      Tony L. Brasel, State’s Attorney, of Watseka, for the People.
    Frank J. Simutis, of Ackman, Marek, Boyd and Simutis, Ltd., of Watseka, for appellee Lawrence Hitz.
    Susan Sumner Tungate, of Watseka, for appellee Daniel Birch.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal involving three cases which were consolidated for hearing by the circuit court of Iroquois County and which are also consolidated for disposition by this court.

The defendants, Newberry, Birch and Hitz, were all arrested at different times and given a citation for driving under the influence of liquor in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501). Each defendant refused to submit to a breath analysis after being advised that such a refusal would result in the suspension of the privilege to operate a motor vehicle. The circuit clerk, after being notified of each defendant’s refusal, notified each defendant in writing that his driving privileges would be suspended unless a hearing was requested in writing within 28 days in accordance with section 11 — 501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1(c)). Within the 28-day period each defendant notified the circuit clerk in writing of his request for a hearing on the arresting officer’s statement.

A consolidated hearing of the three cases was held and counsel for the defendants moved for dismissal on the grounds that the report of the arresting officer in each case was not sworn to before a notary public or the circuit clerk of Iroquois County. The State moved to amend the report by allowing each arresting officer to swear to the report at the hearing. Testimony was presented which included that of the three arresting officers. At the conclusion of the hearing the trial court granted the defendant’s motion to dismiss and denied the State’s motion to amend the reports of the arresting officers. This appeal ensued.

A single issue is presented, being whether the trial court erred in denying the State the right to have the arresting officers affirm their statement prior to the implied consent hearing and therefore further erred in granting the defendants’ motions to dismiss.

The pertinent portion of the statutory provision in question contained in the Illinois Vehicle Code reads as follows:

“[T]he law enforcement officer shall file with the clerk of the circuit court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test or tests requested under the provisions of this Section.” (Ill. Rev. Stat. 1981, ch. 95½, par. ll-501.1(c).)

The record discloses that the trial court determined that the word “shall” in the statutory provision heretofore set forth dictated a finding that it was mandatory that the statements filed by the arresting officer be sworn to at the time of filing. In reaching this conclusion the court relied on the case of People v. Liddell (1974), 19 Ill. App. 3d 794, 313 N.E.2d 248, and two cases from foreign jurisdictions. As to the cases from foreign jurisdictions, we find them inapplicable in that they involved statutes which procedurally were substantially different from that in question in the cases under consideration. As to the Lid-dell case, we note that by way of dictum the word “shall” as used in section 11 — 501.1(d) of the Illinois Vehicle Code was held to be mandatory. Liddell also dealt with a situation unlike that presented in the instant cases in that the reviewing court determined that the word “shall” mandated the revocation of a motorist’s license to drive where the motorist did not request a hearing within the statutory 28-day period.

The controlling case of the issue presented is that of People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 431 N.E.2d 450. In Rehfeldt the arresting officer failed to file a sworn report of a motorist’s refusal to submit to a breath test. The motorist requested a hearing and submitted to the jurisdiction of the court. The arresting officer testified under oath. The motorist made a motion for directed verdict which was based upon the evidence that the officer’s report was not verified. The trial court ruled against the defendant motorist, finding that he had submitted to the jurisdiction of the court and any defects in the officer’s report were cured by the officer’s sworn testimony supporting the finding of probable cause. The reviewing court noted that the motorist was not deprived of any of his driving privileges until after he had been given a hearing after adequate notice and with the opportunity to be represented by counsel.

While Rehfeldt is not factually identical with those presented in the instant case, its holding establishes a premise from which it can be logically concluded that if sworn testimony cures the failure to file a sworn report with the clerk then the motorist who submits to the court’s jurisdiction will not be deprived of any due process rights if the report is sworn to by the arresting officer prior to the commencement of the hearing.

For the reasons set forth the judgment of the trial court in each of the cases involved in this appeal is reversed and the cases are remanded to the circuit court of Iroquois County for a hearing on the merits as provided for by the Illinois Vehicle Code.

Reversed and remanded.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY L. KERKER, Defendant-Appellant.
    Third District
    No. 3-83-0007
    Opinion filed February 10, 1984.

      HEIPLE, J., specially concurring.
    Robert Agostinelli and Pamela Peters, both of State Appellate Defender’s Office, of Ottawa, for appelant.
    Bruce Black, State’s Attorney, of Pekin (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Danny Kerker, was charged by information, and later by indictment, in the circuit court of Tazewell County with having committed the offenses of burglary, theft and criminal damage to property on December 21, 1980. (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 1(a), 16 — 1(a)(1), 21 — 1(a).) On December 22, 1980, the court entered an order appointing the public defender to represent the defendant.

On February 27, 1981, pursuant to a negotiated plea agreement, the defendant entered a plea of guilty to the burglary charge and was sentenced to a term of three years’ probation, including a term of 90 days in the county jail, with costs to be deducted from the defendant’s deposit for bail security. The defendant was also ordered to pay restitution in an amount to be determined by the probation officer. On June 11, 1981, a supplemental probation order was entered specifying the amount of restitution to be $1,972.69.

On June 18, 1982, a petition was filed to revoke the defendant’s probation. That petition alleged that the defendant had committed the offense of unlawful delivery of cannabis. The defendant was also charged by indictment with having committed the same offense. The public defender was again appointed to represent the defendant.

After the probation revocation hearing, the court entered an order on October 28, 1982, finding the defendant guilty of violating his probation and ordering a presentence investigation. On December 16, 1982, the defendant’s court-appointed counsel submitted a “certification of services” indicating the amount of time spent on the defendant’s case. Thereafter, the court entered an order requiring the defendant to pay $500 within three years as fees for court-appointed counsel and costs. The court then sentenced the defendant to a term of four years’ probation with 90 additional days to be served in the county jail. Additionally, the defendant was ordered to continue making restitution payments, as previously ordered, and to pay the sheriff’s meal fees.

On appeal before this court, the defendant raises four issues: (1) whether the statute authorizing the court to order the defendant to pay the fees of his court-appointed counsel is unconstitutional; (2) whether the application of that statute to this defendant violates the defendant’s rights because the crime was committed prior to the effective date; (3) whether the court erred in ordering restitution without specifying a precise amount and without adequately inquiring into the defendant’s ability to pay; and (4) whether the court erred in ordering the defendant to pay sheriff’s meal fees when the imposition of such costs is not authorized by statute.

Initially, the defendant argues that the statute authorizing the trial court to order the defendant to reimburse the county for the cost of his court-appointed attorney is unconstitutional in that it fails to provide any standards for the imposition of such an order and it fails to provide for adequate notice and hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1.) Further, the defendant alleges that the statute is unconstitutional as applied in the instant case because the court failed to conduct an adequate hearing into the defendant’s financial capacity. In reply, the State argues that the defendant has waived this issue because he now raises it for the first time on appeal. We agree.

The record reveals that the defendant failed to make any objection whatsoever before the trial court. We find the issue to have been waived and therefore not properly reviewable by this court. People v. Darnell (1981), 94 Ill. App. 3d 830, 838, 419 N.E.2d 384, 389.

The defendant, citing People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178, argues that trial counsel was confronted with a conflict of interest and therefore should be excused from not raising the issue. In Fields, the issue which counsel failed to raise was ineffective assistance of counsel, with trial counsel’s own reputation at stake.

In the instant case, the court-appointed attorney had neither his reputation nor his financial interest at stake. His fees would be paid by the county. All that was at issue was whether the defendant should be required to reimburse the county. Hence, there is no conflict here. Nor does this issue fall within the plain error doctrine. Finally, we recently upheld the constitutionality of this statute in the face of a similar challenge in People v. Brewer (1983), 118 Ill. App. 3d 189.

We turn next to the second issue raised by the defendant: whether the trial court’s order that the defendant pay the fees of his court-appointed attorney violates the defendant’s rights under the due process and ex post facto clauses of the Federal and State constitutions. According to the defendant, the burglary to which the defendant entered a plea of guilty occurred on December 21, 1980. The offense of unlawful delivery of cannabis, for which the defendant’s probation was revoked, occurred on October 8, 1981. The statute authorizing the imposition of attorney fees on the defendant did not become effective until July 1, 1982. (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1, added by Pub. Act 82 — 708, sec. 1.) Because it had no retroactive application, the defendant argues that it was improperly applied to him.

In reply, the State responds that this issue, also, was waived. Again, we agree. People v. Amerman (1971), 50 Ill. 2d 196, 197, 279 N.E.2d 353, 354.

We next consider the question of whether the trial court erred in imposing restitution on the defendant without specifically determining the amount and without conducting an adequate hearing into the defendant’s financial capacity. Initially, we note that the payment of restitution was imposed on the defendant at the time he entered his guilty plea. From that order of the court no appeal was taken. Therefore, it is clearly not a question which the defendant can raise before this court at this time. (People v. Lambert (1974), 23 Ill. App. 3d 615, 618, 320 N.E.2d 395, 397.) We disagree with the defendant’s position that this falls within a limited exception recognized by the supreme court because the restitution order does not significantly restrict the liberty of the defendant. People v. McCarty (1983), 94 Ill. 2d 28, 37.

At the sentencing hearing following the revocation of the defendant’s probation, the State asked that the defendant be ordered to “continue” making restitution payments and that the bond posted by the defendant for the unlawful delivery charge be applied against the balance owed. While the defendant could have objected to the reinstatement of the restitution order before the trial court, he did not. We therefore find this issue to have been waived.

Finally, we turn to the question of whether the court erred in ordering the defendant to pay sheriff’s meal fees. Both the State and the defendant agree that it did. However, they disagree as to the reason. According to the State, the trial court erred because the record shows that the defendant lacked sufficient financial capacity to pay sheriff’s meal fees. According to the defendant, the court erred because there is no statutory authorization for the tax of sheriff’s meal fees against the defendant as costs. We agree with the defendant.

The allowance and recovery of costs, being unknown at common law, rests entirely upon statutory provisions, which must be strictly construed. Furthermore, the assessment of costs or fees not authorized by statute is an abuse of discretion. (People v. Kluck (1979), 70 Ill. App. 3d 582, 584, 388 N.E.2d 918, 919.) Because there is no statutory authorization for the court’s order that the defendant pay sheriff’s meal fees, that part of the order must be vacated.

Accordingly, that part of the order requiring that the defendant pay the sheriff’s meal fees is vacated. The remainder of the order of the circuit court of Tazewell County is affirmed.

Affirmed in part; vacated in part.

BARRY, J., concurs.

JUSTICE HEIPLE,

specially concurring:

I concur in the majority opinion which reverses the trial court’s order requiring the defendant to pay for his meals while in jail. Based on the law as it is currently written, the order must be vacated. But for reasons which follow, I believe that our State legislature should consider making a change in the law.

It is true that there is no statutory authority which permits a court to order a defendant to pay for his meals as part of a jail sentence. However, there is a statute which permits a county board to assess against a defendant the cost of his incarceration in the county jail to the extent of his ability to pay. If an ex-offender refuses to pay such assessment, a collection can be accomplished only if the county board requests the State’s Attorney to institute a civil action. 111. Rev. Stat. 1981, ch. 75, par. 24.

It would be substantially more practical and efficient if courts were given authority to order a defendant to pay such expenses either as costs or as a condition of periodic imprisonment pursuant to a sentence of probation. Such an order could be based on the same principles which govern an order of restitution as a condition of probation (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3(b)(9)) or a judgment for costs (Ill. Rev. Stat. 1981, ch. 38, par. 180 — 3) and would eliminate the need to resort to a civil action for collection.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL ALLEN, Defendant-Appellant.
    Third District
    No. 3—83—0255
    Opinion filed February 10, 1984.
    Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant was convicted on 18 counts of armed robbery. The charges stemmed from the robbery of 18 individuals present during church services in a church in East Joliet. The defendant appeals from-his conviction citing errors in discovery and during the State’s closing argument. We affirm.

It is undisputed that on November 18, 1982, two men wearing stocking masks and carrying guns entered the church. After ordering the members of the congregation to lay on the floor, the men confiscated wallets and purses. Many of these wallets and purses were recovered from a trash bin next door to the defendant’s residence.

At trial, the State presented the testimony of three victims who identified the defendant as one of the robbers. The State also presented the testimony of Lillian Carr, the daughter of one of the State’s witnesses, who was acquainted with the defendant. Carr received a phone call from the defendant on the morning following the robbery.

. The defendant testified that he was at home with his wife and her family during the robbery The defendant also presented the testimony of family members, all of whom testified that he was at home during the evening of the robbery.

The defendant raises three issues on appeal: (1) whether the court erred in denying a mistrial following Lillian Carr’s testimony relating a statement made to her by the defendant which was not disclosed by the State in discovery; (2) whether the court erred in refusing to conduct an in camera inspection of the prosecutors’ and police officers’ notes; and (3) whether comments by the prosecutor during closing argument deprived the defendant of a fair trial.

During her testimony, Lillian Carr described a telephone conversation she had with the defendant. Carr testified that after she asked the defendant if he had seen her parents’ car at the church, the defendant stated, “I didn’t — I didn’t see — I didn’t do it.” The State had provided the defendant with a summary of Carr’s testimony regarding the phone conversation. That statement by the defendant was not included in the summary. When counsel for the defendant interviewed Carr, Carr did not disclose that the defendant made that particular statement. At the conclusion of Carr’s testimony, the defendant requested that the trial court grant a mistrial or, in the alternative, strike all of Carr’s testimony. The trial court denied the defendant’s requests.

We find that the trial court did not err in denying the requests for mistrial and striking of Carr’s testimony Our finding rests on several factors. As noted by the trial court, the defendant’s statement to Carr was ambiguous and not in the nature of an admission or confession. Counsel for the defendant had interviewed Carr fully regarding the content of her phone conversation. Finally, the particular statement complained of was a relatively inconsequential part of the State’s evidence and was not referred to again during the examination of the State’s witnesses or during closing argument. We therefore find that the trial court did not err in denying the motion for mistrial or the motion to strike Carr’s testimony.

As his second issue on appeal, the defendant argues that he was denied a fair trial as a result of the trial court’s refusal to conduct an in camera inspection of all notes produced by the State’s attorneys and the investigating police officers during the prosecution of the case. The defendant requested such an inspection after the State’s attorneys represented to the court that all discoverable documents had been produced and that only the attorneys’ work product had not been tendered. The trial court accepted the State’s attorneys’ declarations that all documents not tendered to the defendant were work product. The court refused to review those documents to determine if they were work product absent a showing by the defendant that discoverable documents were being withheld as work product. The defendant made no such showing.

We note first that the trial court did grant the defendant’s motion as to notes made by the police officers. As to the notes of the State’s attorneys, we find no error in the trial court’s refusal to conduct an in camera inspection. An in camera inspection of documents is required if the State resists disclosure only when the defendant has made a specific demand for the documents and has made a preliminary showing of the document’s pertinence to a witness’ trial testimony. (People v. Szabo (1983), 94 Ill. 2d 327, 345, 447 N.E.2d 193, 201.) The trial court in the instant case properly stated that it would not conduct an in camera inspection unless the defendant could show that relevant notes were withheld. The defendant made no specific demands for documents or notes and no showing of the notes’ pertinence. The trial court properly denied the defendant’s request for an in camera inspection.

Finally, the defendant asserts that he was denied a fair trial as a result of the improper remarks made by the State’s attorneys during closing argument. We have reviewed the remarks complained of and conclude that the remarks, several of which were not objected to at trial, were not improper. There was no reversible error in the State’s attorneys’ closing arguments.

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

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSEANN McLAUGHLIN, Defendant-Appellant.
    Third District
    No. 3—83—0399
    Opinion filed February 16, 1984.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Roseann McLaughlin appeals from her convictions for attempt (burglary) and conspiracy following a jury trial in Will County. She received a one-year term of imprisonment on the conspiracy conviction and 30 months’ probation on the attempt (burglary) conviction. Two issues are raised on appeal: (1) whether the conspiracy conviction should be reversed because the evidence fails to establish beyond a reasonable doubt that she entered into an agreement to commit burglary; and (2) whether the trial court committed reversible error in failing to give both paragraphs of the circumstantial evidence instruction.

The record reveals that Roseann McLaughlin and James Marshall were charged by information with burglary and conspiracy to commit burglary. They were tried together by a jury. The evidence before the jury indicated that on the night of December 8, 1982, at approximately 8 p.m., city and county police officers undertook surveillance upon a Ryder rental truck. The surveillance was the result of an anonymous telephone tip that had been received. The truck was first observed by officers on Century Lane, in Aurora, from whence it proceeded, via Route 30, to a lot next to Bays Furniture store, some six miles outside Aurora. An individual was seen running from the rental truck toward the back of the furniture store. The truck left within a few minutes although it drove by the store several times before heading toward Aurora. It arrived back in Aurora, at a bowling alley, at about 10 p.m. An officer there observed two persons leave the truck.

Other officers, checking the back area of Bays Furniture, noticed footprints in the light snow leading up to the back of the building, near double doors. There was no evidence of entry or any attempted entry at that time. At the bowling alley, officers observed a white male enter the truck cab, and then later leave it. A short time later, two persons, appearing to be black males, exited the bowling alley and entered the rental truck.

From the bowling alley, the truck proceeded, after several changes of direction, toward and past Bays Furniture store. It drove by the store several times. Finally, the truck was parked south of the parking lot for Bays Furniture, and officers observed an individual exit the truck. Next, two individuals, wearing dark clothing, were seen proceeding north along some railroad tracks just east of where the truck had been parked. One wore a cap and dark brown leather jacket, and both appeared to be males. The two ran behind Bays Furniture and were out of sight for 10 to 15 minutes. They were then observed running from the back of the store towards the truck, which, a short time later, drove away onto Route 30. After making several passes in front of the furniture store, the truck was stopped by a local police officer who had not been participating in the surveillance. The defendant, Roseann McLaughlin, was driving the truck and Marshall was her passenger. Both were arrested and taken into custody. McLaughlin was dressed in a cap and brown leather jacket, while Marshall was dressed in dark clothing. The truck was searched but no tools were found, only two sets of gloves and a flashlight.

An examination of the Bays Furniture store revealed that a window in the back office was broken and one of the double doors was ajar from 10 to 12 inches. Nothing was missing from the store, nor were there other indications of an entry. Also at the scene one officer observed footprints in the snow. Two sets of prints were observed by the first officer on the scene, and they led from the area where the truck was parked to the back of the store and back again to the truck. They were boot-like prints. A photograph of one of the larger boot prints was admitted to trial, but the expert could not conclusively identify that print as the same as would be made by the boots worn by Marshall. McLaughlin’s boots could not have made the print in the photograph, because of the variance in size. The officer did testify that the two sets of boot prints were totally dissimilar to the sneaker-type prints made by the first visitor to the back of the store, at around 8 p.m.

Post-arrest statements made by the codefendants were also put into evidence. McLaughlin stated that she had been at a bowling alley with Marshall and that she had left with him to go to Joliet. While initially denying any stops along the way, she subsequently stated that she and Marshall stopped near some farm buildings for her to go to the bathroom. Marshall, in his statement, indicated that he left the bowling alley with McLaughlin heading for Joliet. He, too, admitted that they had stopped somewhere, but did not say where.

At the instructions conference, the State tendered an instruction on circumstantial evidence which omitted the second paragraph of the IPI Instruction for circumstantial evidence. (See Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.02 (2d ed. 1981).) The defense objected, requesting that the second paragraph be given, since the State’s case was entirely circumstantial. The second paragraph of the instruction states: “You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.” The court gave the instruction without the second paragraph. The jury was also instructed upon accountability, as well as attempt, burglary, and conspiracy. The jury found both McLaughlin and Marshall not guilty of burglary, but guilty of attempt (burglary) and conspiracy.

The first issue on appeal is whether the conspiracy conviction should be reversed because the evidence is insufficient to establish beyond a reasonable doubt that the defendant entered into an agreement to commit burglary. It is clear that to sustain a conspiracy conviction, the State must prove, beyond a reasonable doubt, that the defendant entered into an agreement to commit an offense with the intent that the offense actually be committed and that the defendant or co-conspirator performed an act in furtherance of the agreement. (People v. Bailey (1975), 60 Ill. 2d 37, 44-45, 322 N.E.2d 804. See Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2(a).) The State emphasizes the recognized difficulty of proving conspiracy by direct evidence and the established rule that permits broad inferences to be drawn of conspiratorial intent and agreement from evidence of acts, conduct, and circumstances. (People v. Persinger (1977), 49 Ill. App. 3d 116, 121, 363 N.E.2d 897, cert. denied (1978), 435 U.S. 917, 55 L. Ed. 2d 509. 98 S. Ct. 1474.) The defense focuses upon limiting rules in the area, one which requires that the circumstantial evidence of a conspiracy must be such “that the conclusion drawn from it excludes every reasonable hypothesis other than guilt” (49 Ill. App. 3d 116, 122), and another stating that “mere knowledge, acquiescence, approval, or attempt on the part of one to perpetrate an illegal act does not constitute conspiracy.” (49 Ill. App. 3d 116, 122; People v. Mordick (1981), 94 Ill. App. 3d 497, 500-01, 418 N.E.2d 1057.) The Illinois Supreme Court has also noted that aiding and abetting the commission of an offense, under accountability principles (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)), is a distinct crime from conspiracy to commit the offense. (People v. Stroner (1983), 96 Ill. 2d 204, 211, 449 N.E.2d 1326, citing to United States v. Krol (7th Cir. 1967), 374 F.2d 776, cert. denied (1967), 389 U.S. 835, 19 L. Ed. 2d 97, 88 S. Ct. 46.) The court also noted that an attempt, under an accountability theory, does not necessarily require an agreement. (People v. Stroner (1983), 96 Ill. 2d 204, 211.) In the instant case, there is no direct evidence of agreement. As to the circumstantial evidence of agreement, from the joint activities of the codefendants on the night of the attempt, another reasonable hypothesis respecting that evidence is that the defendant aided and abetted in the commission of the crime, without any prior agreement. That the codefendants were at the bowling alley together, drove together in the truck and then proceeded to the furniture store where an attempt burglary was committed does not establish, beyond a reasonable doubt, that there was an agreement between them to commit the burglary. Other reasonable hypotheses, apart from a prior agreement, are permissible on the circumstantial evidence before the jury. Given this, the conviction for conspiracy must be reversed.

The second issue on appeal is whether the court committed reversible error in refusing to give both paragraphs of the circumstantial evidence instruction. (IPI Criminal No. 3.02 (2d ed. 1981).) The instruction, in its entirety, states:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

The State submitted an instruction containing only the first paragraph, while the defense moved for both paragraphs of the instruction. The court gave only the first paragraph. The committee notes indicate that the second paragraph was intended to be included in those cases where the State’s case is entirely circumstantial. The committee’s conclusion has been adopted by the Illinois Supreme Court. (People v. Evans (1981), 87 Ill. 2d 77, 83, 429 N.E.2d 520.) In the case at bar, the State argues that its case contained both direct and circumstantial evidence, while the defense contends that the evidence of guilt was entirely circumstantial. Initially, it must be noted that the focus of the instruction and the discussion in People v. Evans is upon evidence of the elements of the offense, “proof of facts or circumstances which gives rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant.” (See also People v. Minish (1974), 19 Ill. App. 3d 603, 608-16, 312 N.E.2d 49 (Stouder, J., dissenting).) In this case, the elements of the offense of attempt burglary required a showing that the defendant or a codefendant for whom she was accountable, with the intent to commit burglary, did an act constituting a substantial step toward the commission of burglary. The substantial step toward the burglary is the breaking of the office window and the prying of the rear double doors, and as to these there is no direct evidence of the defendant or a codefendant committing those acts. There is strong, albeit conclusive circumstantial evidence, arising from the officers’ observations of the pair’s activities and from the footprints in the snow, but no direct evidence of their guilt of attempt (burglary). We reject the State’s assertion that exculpatory statements of a defendant are necessarily direct evidence sufficient to obviate the need for the court to give the second paragraph of the circumstantial evidence instruction. The exculpatory statements of the defendant did not establish an element of the offense. (People v. Garcia (1981), 95 Ill. App. 3d 792, 420 N.E.2d 482.) The court erred in not submitting to the jury the second paragraph of the circumstantial evidence instruction. However, we conclude that this error was not reversible error.

It has been held that where no reasonable explanation of the defendant’s behavior exists on the circumstantial evidence in the record, then the failure of the trial court to give the second paragraph of the instruction is harmless error. People v. Edmondson (1982), 106 Ill. App. 3d 716, 721-22, 435 N.E.2d 870; People v. Cross (1981), 100 Ill. App. 3d 83, 426 N.E.2d 623.

Here, the totality of the circumstantial evidence admits of no . other reasonable explanation other than that the defendant was guilty of attempt (burglary). The failure to give the second paragraph of the circumstantial evidence instruction was, therefore, harmless error.

For the reasons stated, the defendant’s conviction for conspiracy is reversed, but the conviction for attempt (burglary) is affirmed.

Reversed in part and affirmed in part.

STOUDER and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKEY McGEE, Defendant-Appellant.
    Second District
    No. 83—486
    Opinion filed February 22, 1984.

      G. Joseph Weller and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Rickey McGee, was found guilty in a jury trial of attempt (murder) (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2), and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)). He was sentenced to concurrent extended 40-year terms of imprisonment for attempted murder and armed violence.

On appeal defendant raises the following issues: (1) whether the act for which he was convicted of attempted murder was accompanied by exceptionally brutal or heinous behavior to warrant an extended-term sentence; and (2) whether the armed-violence conviction must be vacated as arising out of the same physical act as the attempted-murder conviction, and the cause remanded for resentencing on the attempted-murder conviction.

The testimony of the victim, Nolan Banks, and his girl friend, Barbara Duncan, established that Banks went to the Future Disco in North Chicago at about 10 p.m. on January 15, 1983. Barbara Duncan arrived at 1 a.m. Banks had a beer or two there that evening and he and Duncan left at 2 a.m. The Future Disco was crowded that night and many people were leaving then. Outside, Duncan had ahold of Banks’ arm — his other wrist was in a splint. Banks looked up and saw defendant, whom he knew, standing in front of him. Defendant said something, then pulled out a shotgun and shot Banks in the stomach. Defendant was about four feet away at the time. Just before being shot Banks had pushed Duncan away from him. Both Banks and Duncan testified Banks did not possess any weapon that night or say anything to defendant before being shot. Banks admitted that he had sprained his wrist when he hit one Kurt Nash on January 5, 1983. Defendant had broken up the fight and he and Banks exchanged words then. Numerous other witnesses for the State testified that Banks did not possess a weapon that evening.

Dr. Shien-Keng Shih, a surgeon, testified that Banks suffered a near fatal, large stomach wound, 10 centimeters by 5 centimeters, which hospitalized him until March 28, 1983. The injury necessitated removal of three fourths of his small bowel and part of his large bowel. Banks will suffer permanent abnormal digestive functioning.

For the defense Kurt Nash testified that on January 5, 1983, while at the Ace of Clubs bar in Waukegan, he was struck in the face by Nolan Banks without provocation. After he was struck a second time by Banks, defendant came up and told Banks to get back and leave Nash alone.

Defendant then testified that on January 5, 1983, he saw Nash being beaten by Banks and others at the Ace of Clubs and he walked in between them and told them to leave Nash alone. The fighting ended and he went home. The next day he again saw Banks at the Ace of Clubs and they argued about defendant’s interference in the fight the previous day. Later that evening Banks and another person walked by him, and the other person fired a handgun four times, wounding a person with defendant. A couple of days later he heard Banks was going to get him.

Defendant further stated that he went to the Future Disco alone at about 12:30 a.m. on January 16, 1983. He saw Banks in the tavern, but did not speak to him. He testified he did not have a gun with him. When he left the Future Disco at 2 a.m., Banks approached him with a handgun in his right hand, pointed it at him, and said, "What you going to do now, punk?” Then someone nearby passed him a rifle and he shot Banks thinking Banks was going to kill him. He then ran, dropped the rifle, and gave himself up the next day. He admitted telling the police first that while outside the Future Disco someone handed him what he thought was a stick, and it went off accidentally.

In. a second conversation with the police he told them he knew it was a gun and he fired it intentionally.

At the sentencing hearing, the trial court in a lengthy recitation of the reasons for the sentence stated, in pertinent part, as follows:

“As far as this court is concerned, Mr. McGee, and not for the reasons given, because the jury didn’t believe that, for reasons of his own, decided to kill an individual. He obtained a shotgun, which is a very dangerous weapon, and one which is rather non-selective in what he was going to hit with it, went to a social event in an area with very, very many people, and with a tremendous, callous disregard, as far as I’m concerned, for any and all of the other people that were present, shot someone with what this court feels was a substantial cold and premeditated intent to murder. Frankly, only given the benefit of our extraordinary medical science, that, in fact, it was not murder.
I don’t think that there’s any question in so far as what was mentioned by the state in so far as a previous conviction of a Class 2, that extended term does not apply. But as far as this court is concerned, the way the act was performed, even where he shot the victim, the presence of all the other people were around, brings the facts and circumstances of this case clearly within extended term, in that the actions of the defendant were exceptionally brutal and heineous [sic], and indicative of wanton cruelty on his behalf.”

It is defendant’s first contention on appeal that the act for which he was convicted of attempted murder was not accompanied by exceptionally brutal or heinous behavior to justify imposition of an extended-term sentence. Primarily relying upon a lack of evidence of premeditation, his asserted meritorious conduct in voluntarily turning himself in and his expressing remorse at the sentencing hearing, and the absence of infliction of numerous wounds as is present in other cases where extended-term sentences have been upheld on review, defendant maintains his conduct was not exceptionally brutal or heinous to warrant an extended term of imprisonment.

The statutory extended-term provision pertinent to this case allows a trial court to impose an extended-term sentence upon a defendant convicted of any felony where “the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.2(b)(2).) The legislative scheme in regard to extended-term sentences requires the degree of brutality or heinous behavior to be “exceptional.” (People v. Fieberg (1982), 108 Ill. App. 3d 665, 670, 439 N.E.2d 543.) In evaluating the brutality and heinousness of a defendant’s conduct, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated. (People v. Strait (1983), 116 Ill. App. 3d 110, 115, 451 N.E.2d 631; People v. Devine (1981), 98 Ill. App. 3d 914, 925, 424 N.E.2d 823.) In People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, our supreme court held that the phrase “ '*** exceptionally brutal or heinous behavior, indicative of wanton cruelty’ ” contained in section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)) authorizing natural life imprisonment did not require “ ‘torture or unnecessary pain upon his victim’ ” in order to find “brutal” or “heinous” behavior. (People v. LaPointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344.) The court stated:

“ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain.” 88 Ill. 2d 482, 501, 431 N.E.2d 344.

Defendant contends that there is no evidence of premeditation that he went to the Future Disco armed for the purpose of shooting Banks or that he planned the offense, a factor found to be significant in determining whether the conduct is exceptionally brutal or heinous. (See, e.g., People v. LaPointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344; People v. Winston (1982), 106 Ill. App. 3d 673, 688, 435 N.E.2d 1327.) However, we believe the evidence and the reasonable inferences drawn therefrom do establish premeditation by defendant’s unprovoked act of shooting an unarmed victim. While the defendant testified he did not bring a weapon that evening, was “handed” a rifle by someone and shot in self-defense, the jury chose not to believe him. The trial judge disbelieved this testimony too as he indicated at the sentencing hearing. Such a determination of premeditation by the trial court under the evidence here was proper even though disputed by the defendant. See People v. Goodman (1983), 116 Ill. App. 3d 125, 131, 451 N.E.2d 607.

Defendant also argues that a defendant’s lack of remorse for his conduct is an important factor in determining if a defendant’s conduct is indicative of wanton cruelty. (See, e.g., People v. LaPointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1023, 439 N.E.2d 1311.) Here, defendant maintains he turned himself in to the police and expressed remorse to the court at the sentencing hearing. The trial court apparently disbelieved defendant’s late statement of remorse, and such matters of credibility and demeanor are best left to the trial judge whose opportunity to consider these factors is superior to that afforded by the cold record in this court. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) Defendant’s actions at the time of the shooting and immediately thereafter are more indicative of his true feelings.

Finally, defendant cites numerous cases in which the appellate court has emphasized the infliction of numerous wounds as indicative of wanton cruelty. (See, e.g., People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823; People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513.) While we agree with those decisions, a single act which causes death or injury may also be sufficient to demonstrate exceptionally brutal or heinous behavior considering the entire conduct of the defendant. See People v. Strait (1983), 116 Ill. App. 3d 110, 115, 451 N.E.2d 631; People v. Rowe (1983), 115 Ill. App. 3d 322, 329, 450 N.E.2d 804.

The factors present here which we believe demonstrate the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty are: defendant’s premeditated, senseless act in shooting the victim in apparent retribution over a previous argument; the absence of any immediate provocation by the unarmed victim; defendant’s indifference to any potential harm to the many other people around which could be caused by the shotgun blast; and defendant’s shooting of the victim with a shotgun at close range which obviously would result in death or grave and permanent injury to the victim. All these factors were relied on by the court below, and we conclude it did not err in finding exceptionally brutal and heinous conduct indicative of wanton cruelty under these circumstances.

We need not address defendant’s second contention that the armed-violence conviction cannot stand because of his conviction as well for attempted murder as the State has conceded that we must vacate the armed-violence conviction. However, defendant also has requested that we remand the attempted-murder case for resentencing in view of the vacation of the armed-violence conviction. Since the trial court sentenced defendant separately for each offense and the record does not indicate that the court was influenced by the armed-violence conviction in imposing sentence for the attempted-murder offense, remand for resentencing is unnecessary. (People v. Payne (1983), 98 Ill. 2d 45, 55-57, 456 N.E.2d 44.) There is no evidence tending to show that the trial judge considered the extra conviction for armed violence in passing sentence for attempted murder.

For the foregoing reasons, the judgment of conviction and sentence for attempted murder is affirmed, and the conviction for armed violence is vacated.

Affirmed in part, vacated in part.

UNVERZAGT and HOPF, JJ., concur.


author: JUSTICE HEIPLE

text:
      In re MARRIAGE OF CHARLENE ANN THEIS, Plaintiff-Appellant, and TERRY LEE THEIS, Defendant-Appellee.
    Third District
    No. 3—83—0720
    Opinion filed March 6, 1984.
    Charles O. Brizius and Murray S. Pearlman, both of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an interlocutory appeal under Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)) from an order of the circuit court of Kankakee County modifying a preliminary injunction. We reverse.

In post-dissolution of marriage proceedings, the appellant, Ms. Charlene Theis (mother), sought preliminary and permanent injunctions restricting the appellee’s, Mr. Terry Theis’ (father), rights of visitation with the parties’ two minor children, April and Timothy. The mother alleged that the father had sexually abused April. On August 3, 1983, the trial court granted a preliminary injunction. However, in the following November, the lower court entered two orders: one denied the mother’s motion to reinstate certain testimony which was previously stricken and the other modified the preliminary injunction. Pending the hearing on the permanent injunction and custody modification, the father was allowed to take the children from the mother on specified days but only in the presence of the father’s new wife.

The mother appeals from the November orders and attacks the lower court’s evidentiary rulings. The nature of these evidentiary issues necessitates a review of the testimony.

The mother testified that the children, Timothy and April, visited their father in January, February and March, 1983. April was then three years old and Timothy was eight years old. In February, April began wetting her bed at night and complained of pain when urinating. In early March, April again complained to her mother that her vagina hurt. The mother examined April and noticed redness and a slight discharge from her vaginal area. The mother consulted Dr. Lu in mid-April.

Dr. Lu had been April’s treating physician since 1980 and had treated April for a bladder infection in 1982. Dr. Lu testified that initially she thought April might have had another bladder infection. Urine tests, however, showed no indications of such an infection. In accordance with standard medical practice, Dr. Lu interviewed both the mother and April to obtain a history in order to discover the cause of April’s medical problem and to devise a treatment. The mother mentioned that April’s symptoms began after visitations with her father. Dr. Lu further related that a vaginal discharge is not necessarily the result of sexual contact. April, herself, may have inserted a foreign body. Nonetheless, Dr. Lu obviously suspected abuse by the father because in the course of her examination, Dr. Lu asked April several questions concerning the touching of her vaginal area. Dr. Lu testified as follows:

“*** I pointed to her private area. I asked her ‘did your father touch you there?’ [external vaginal area] *** April had tears in her eyes and she nodded her head [up and down] ***.”

The questions that followed were also yes or no questions which inquired as to the manner in which April was touched. To each question, April responded by nodding her head. Dr. Lu noted that, as she questioned April, her crying became more severe. Dr. Lu was unable to continue with a physical examination of April because of her upset state, but was able to obtain a vaginal culture. The tests performed on the culture showed that April had a disease known as gardenerella vaginalis. This disease is rarely found in a female below the age of puberty and is very common in sexually active women.

Dr. Lu reported her suspicion of child abuse to the Department of Children and Family Services (DCFS). Mr. Taylor, from DCFS, testified that he interviewed April and her mother on April 29. It is interesting to note that, according to the mother’s testimony, April, prior to February, was an outgoing child and would reach out to any man. But, after February, she became somewhat withdrawn and avoided contact with men. Consequently, Mr. Taylor had to ask questions of April through her mother. Mr. Taylor asked April if anyone touched her in her vaginal area. He also asked April to get a doll and show him how she had been touched. Apparently, April showed Mr. Taylor how she had been touched. However, Mr. Taylor’s observation is not part of the record because of a sustained objection interposed by the father’s attorney. The mother’s attorney did make an offer of proof which included Mr. Taylor’s conclusions that the child was a reliable source of information and that the child had been sexually abused by her father.

The trial court struck the testimony of the mother, Dr. Lu and Mr. Taylor which recounted what April said or did concerning the alleged abuse. The mother argues this was error for four reasons.

First, the mother contends that Mr. Taylor is an expert DCFS investigator who developed opinions relevant to this case from the contents of his report. The mother argues that under the rules adopted in Wilson v. Clark (1981), 84 Ill. 2d 186, Mr. Taylor’s opinions and the contents of his report should have been admitted as substantive evidence. We disagree. Wilson deals with testimony of experts based upon medical records, not with the admission of the records themselves. (Guerrero v. City of Chicago (1983), 117 Ill. App. 3d 348, 351.) Also, even assuming that Mr. Taylor is a qualified expert, a foundation must first be laid to demonstrate that the trier of fact needs the assistance of an expert opinion, as contrasted with evidentiary facts, in order to decide an issue. (See People v. Covey (1966), 34 Ill. 2d 195, 197.) Such indication is lacking in this case.

Second, the mother argues that Mr. Taylor should have been allowed to testify in the same manner as an appointed expert from DCFS. Section 605 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 605) empowers a trial court to order an investigation and report concerning the custodial arrangements for the child. The report may be used by the court in determining custody, and the preparer of the report is subject to cross-examination. In the instant case, the trial judge did not grant the mother’s request for an investigative report. The mother claims that this was error. In addition, she argues that Mr. Taylor’s conclusions concerning the credibility of the child and the abuse by the father would have been admissible had they been in a section 605 report. She contends that since a report should have been ordered, Mr. Taylor’s conclusions should have been admitted to rectify the error of not ordering a report.

Even if we were to assume that Mr. Taylor’s investigation and report was the equivalent of a section 605 investigation and report, and that a report should have been ordered, we cannot agree that the report could encompass the finding of fact concerning who abused April. The section 605 report is only evidence of what the investigator observed and of his conclusions concerning suggested custody arrangements based upon those observations. Any underlying facts contained in the report which are outside the personal knowledge of the investigator are hearsay.

Third, the mother argues that Dr. Lu’s testimony should be admissible under the treating-physician exception to the hearsay rule. In People v. Gant (1974), 58 Ill. 2d 178, a treating doctor, in order that he might have a better understanding of the victim’s problem, inquired of the patient as to what had happened. At trial, the doctor was allowed to testify to the victim’s statements. The victim stated that she was sitting on a couch when a man entered the room behind her and threatened her. She also mentioned she knew the attacker. The doctor’s rendition of the victim’s statement was held to be admissible evidence as an exception to the hearsay rule.

The Gant court describes the exception as follows:

“ ‘Statements of a presently existing bodily condition made by a patient to a doctor consulted for treatment are almost uni-
versally admitted as evidence of the facts stated ***. Although statements to physicians are not likely to be spontaneous, since they are usually made in response to questions, their reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician.
* * *
The exception might be taken one step further to encompass statements made to a physician concerning the cause or the external source of the condition to be treated.’ McCormick, Handbook of the Law of Evidence 690-691 (2d ed. 1972); see also Annot., 37 A.L.R.3d 778, 802 (1971); Jensen v. Elgin, Joliet and Eastern Ry. Co. (1962), 24 Ill. 2d 383, 388.
The rule is ‘equally applicable whether the case is civil or criminal.’ (State v. Orsini (1967), 155 Conn. 367, 371, 232 A.2d 907, 910.)” 58 Ill. 2d 178, 186.

In the instant case, much as in Gant, Dr. Lu’s inquiry of April concerned the events which caused her injury and the identity of the attacker. Yet, the trial judge refused to allow Dr. Lu’s testimony under the treating-physician exception. The trial judge based his decision on the absence of evidence that the child was of sufficient maturity to understand that a patient should not falsify the information provided to a doctor. We believe that it is not necessary that there be evidence in the record which demonstrates that the patient understands the relationship between truthful information and good treatment. A child of three years, when injured, will naturally tell the truth as to the cause of the injury. (Cf. People v. Chatman (1982), 110 Ill. App. 3d 19, 27.) Unless there is evidence that the child tends to fabricate the cause of the injuries, the statement should be considered trustworthy.

Dr. Lu had examined and treated April several times since April’s birth. Neither Dr. Lu, nor anyone else, indicated that April provided false information when asked about her health. Consequently, April’s response concerning her injury should be considered as truthful as any adult’s.

The fact Dr. Lu’s questions were leading does not destroy the admissibility of the examination. As the Gant court notes, doctors regularly ask questions of patients. These questions are specifically designed to determine the causes of the injury. Any responses thereto which relate to the injury could not be understood without the accompanying question. The form of the question should only go to the weight, not the admissibility, of the evidence.

Also, the identity of the molester was relevant to the doctor’s treatment because the molester was the direct cause of the injury. A doctor must know the cause of the injury in order to treat the patient. A doctor cannot simply give an abused child an antibiotic and expect the infection to dissipate if the child will be subject to repeated abuses at home. Under such circumstances, the doctor’s treatment would be an exercise in futility. Thus, any questions and responses which identified the perpetrator of the child abuse are relevant to treatment and should have been admitted under the treating-physician exception to the hearsay rule.

We also agree with the mother’s fourth argument that the testimony of the mother and Dr. Lu, which recounted the questioning of April by Dr. Lu, concerning the sexual abuse and the identity of the perpetrator, should have been admitted under the spontaneous declaration exception to the hearsay rule.

Three factors must be present before a statement can come within the spontaneous declaration exception: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. People v. Chatman (1982), 110 Ill. App. 3d 19, 26, citing People v. Poland (1961), 22 Ill. 2d 175, 181.

We are aware of a general liberalization of the spontaneous declaration exception in its application to the statements of children of tender years. (People v. Miller (1978), 58 Ill. App. 3d 156, 158-61; see also People v. Chatman (1982), 110 Ill. App. 3d 19; People v. Cherry (1980), 88 Ill. App. 3d 1048, 1053-55.) For example, the first factor, that the statement be spontaneous and unreflective, does not require that the event and the declaration be contemporaneous. The question is whether the circumstances exclude premeditation and design. (People v. Cherry (1980), 88 Ill. App. 3d 1048, 1055.) If the statement occurs after the event, it can be considered “spontaneous” where there is an indication that the stress created in the child by the event is still present at the time the statement is made. Under such circumstances, the stress activates the original sensations of the event in the memory of the child. Testimony that the child still appeared “nervous” or “distraught” and that there was a reasonable basis for continuing emotional upset will often suffice. (See People v. Chatman (1982), 110 Ill. App. 3d 19, 26, citing McCormick, Evidence sec. 297, at 706 (2d ed. 1972).) Also, the fact the statement was a response to detailed inquiries which probe for the existence of specific criminal activity does not destroy the unreflective or spontaneous character of the statement. People v. Grover (1983), 116 Ill. App. 3d 116, 120.

The second factor, absence of time to fabricate, goes to the motivations of the declarant rather than the declarant’s perceptions. Illinois courts have recognized the special circumstances which exist concerning the motivations behind the statements of very young children. The basic rationale for the admission of their statements is that it is unlikely that a child of tender years will have any reason to fabricate stories of attacks. See, e.g., People v. Chatman (1982), 110 Ill. App. 3d 19.

In the instant case, April was not simply an occurrence witness to the event. She was the victim of the abuse. Child-abuse cases demand an even greater respect for the reliability of the child’s statements. The likelihood that April fabricated or misperceived her sexual experience is slight to nonexistent.

In child-abuse cases, Wisconsin courts have long recognized that a broad and liberal interpretation should be given to what constitutes a spontaneous declaration when applied to young children. (State v. Padilla (Wis. App. 1982), 110 Wis. 2d 414, 329 N.W.2d 263.) The Wisconsin courts have noted that the stress of the event will remain with the child long after it occurred and that the child’s statements will be unfabricated for three reasons. First, a child is apt to repress the incident. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Third, the characteristics of young children work to produce declarations free of conscious fabrication for a longer period after the incident than adults. It is unlikely a young child will review the incident and calculate the effect of the statement. State v. Padilla (Wis. App. 1982), 110 Wis. 2d 414, 419, 329 N.W.2d 263, 266.

In the instant case, April’s statements are in the form of head nods to specific questions asked by her doctor, in the presence of her mother, approximately two months after the alleged abuse. While a child may forget a trip to the movies or to the zoo after two months, we do not believe a child will forget the experience of being subject to sexual molestation. April became upset when Dr. Lu questioned her about the event. April’s disposition evidenced the type of emotions which would be produced by the activation of the stress which developed from the event, and the activation of her memories of that event. In this respect, her actions and responses concerning the event can be considered unreflective and spontaneous.

The fact April only nodded her head in agreement with the- doctor’s inquiries does not destroy the statement’s admissibility. As noted above, with regard to the third issue, the form of the inquiry should only go to the weight, not the admissibility of the evidence. In Bertrang v. State (1971), 50 Wis. 2d 702, 705-06, 184 N.W.2d 867, 869, the mother testified that she asked her daughter, “Did your dad do something?” to which the child responded, “Yes.” This dialogue was held admissible. Likewise, absent any showing that April tends to fabricate answers about her injuries, we hold that the doctor’s questions and April’s responses concerning the alleged sexual abuse are admissible under the spontaneous declaration exception.

It is important to note that the instant case is not a criminal proceeding against the father. Nor is this a proceeding to terminate the father’s parental rights. This is a civil, post-divorce, proceeding in which the trial court has been called upon to formulate a visitation and custody arrangement. The primary concern of the court is to devise an arrangement which will best serve the welfare of the child. The needs and desires of the parents are secondary. In this proceeding, a factual issue has been raised by the allegation of child abuse.

In abuse cases, the eyewitness statement of the youngster may be the only direct link between the child and the offender because the offense usually occurs in private. Any other evidence is generally circumstantial physical evidence that indicates only that abuse was committed. (See State v. Gilbert (1982), 109 Wis. 2d 501, 516, 326 N.W.2d 744, 751.) Also, a young child may be unwilling to testify at trial, or at least inhibited from doing so from a feeling of fear or shame, or as a result of the strangeness of the courtroom surroundings. (See Bertrang v. State (1971), 50 Wis. 2d 702, 707-08, 184 N.W.2d 867, 870. ) Consequently, the child’s welfare is best served by a liberal interpretation of the treating physician and spontaneous declaration exceptions to the hearsay rule in order to provide the fullest record possible concerning the alleged abuse. In this opinion, we hold that April’s answers and the doctor’s questions are admissible. We do not evaluate the credibility and weight to be given to April’s statements. Credibility and weight is a finding which is left to the discretion of the trier of fact.

For the reasons set forth above, we reverse the order of the lower court which refused to reinstate the testimony of the mother and Doctor Lu.

Reversed.

BARRY and STOUDER, JJ., concur.