author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAY L. SURGES, Defendant-Appellant.
    First District (1st Division)
    No. 80-2020
    Opinion filed November 9, 1981.

      Robert H. Farley, Jr., and Robert J. Schmit, both of Blue Island, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant was found guilty by a jury of armed robbery, burglary to commit armed robbery and unlawful restraint (Ill. Rev. Stat. 1973, ch. 38, pars. 18 — 2, 19 — 1, 10 — 3). The trial court vacated the judgment on the burglary and sentenced defendant to concurrent terms of 13 years and 3 years for armed robbery and unlawful restraint, respectively. Defendant appeals his conviction, contending that: (1) he was deprived of a fair trial because of statements made by the State during closing argument, because of the trial court’s failure to answer questions posed by the jury and because of the court’s dismissal of codefendant at midtrial without explanation; (2) the trial court erred in giving certain jury instructions; (3) the trial court erred in sentencing defendant for unlawful restraint because no judgment had been entered on that offense; (4) he was denied a proper sentencing hearing; (5) the trial court erred in sentencing defendant to 13 years for armed robbery because his sentence was grossly disparate to the sentence received by his co-defendant; (6) he did not have effective assistance of counsel at trial; and (7) the evidence did not establish his guilt beyond a reasonable doubt.

For the reasons set forth herein, we affirm.

The evidence discloses that at approximately 1 a.m. on November 17, 1975, J. Starks was walking east on Chicago Avenue after purchasing an order of barbeque ribs to eat at home. While walking home, Starks noticed co-defendant Monroe Banks leaning against a car parked about 30 feet from the entrance to the barbeque restaurant. Shortly after he first saw Banks, he saw defendant Ray Surges leaning against a wall across from Banks and Philip Smith who was further down the block. As Starks passed Banks and defendant, Banks stuck a gun in Starks’ side. Banks then placed a cap over Starks’ eyes and Banks and defendant proceeded to walk down the street with Starks between them. Starks testified that while he was walking, someone went through his pockets and removed his wallet, money and keys. Someone then asked Starks if he had any more money and he said that he did not have any more. He was then told that the money which he had was not sufficient and that he would be killed. Starks said that he might have money at home. Subsequently, Starks was placed in thé trunk of a car and driven to within a block of his home. At the time Starks was removed from the trunk, Banks, defendant and Smith were present. These three accompanied Starks to his front door. At this time, the hat was removed from Starks’ eyes. Starks then rang the doorbell and knocked on the front door to his home.

Starks’ 14-year-old daughter was awakened by the doorbell and went downstairs to open the door. She saw her father with three men and she opened the door after about a minute. She then ran upstairs because she had been sleeping in her undergarments and returned to bed. Starks was led to the couch, where he was struck twice on the head with the gun by Banks. Starks still was wearing the hat when he was put on the couch; however, he testified that he could see from underneath the hat. Starks saw Banks go upstairs while defendant remained in the hallway watching Starks. While upstairs, Banks took the family’s foodstamps from the wife. He also forced the daughter to perform a deviate sexual act and he raped the daughter. Banks and the daughter then went downstairs where she saw her father on the couch and Philip Smith in the hallway. The daughter testified that she did not see defendant at this time. Smith raped the daughter in the recreation room of the Starks’ home while Banks was upstairs forcing the wife to perform a deviate sexual act. Banks also attempted to rape the wife. The daughter observed Banks and Smith leave the home, although neither she nor her father saw defendant leave.

The daughter telephoned the police after they left the house. At about 2:30 a.m., Officer Zten went to the Starks’ residence, where he spoke with Starks, his wife and daughter. Zten radioed a description of Banks and defendant which was heard by Officer Stack and his partner, Officer Spolar. Stack noticed Banks running in the vicinity of the Starks home and saw Banks throw an object into the adjacent bushes. Stack and Spolar stopped their squad car and, upon exiting the vehicle, stopped Banks. Spolar searched the area near Banks and found a revolver. Stack and Spolar then took Banks to the Starks home where the daughter identified him as the person who raped her. Upon searching Banks, the police recovered foodstamps, money and an electrical cord from a television set which belonged to Starks’ son. Banks was subsequently transported to the 15th District police station where he was questioned. After Banks was interrogated, four police officers went to the home of defendant. The testimony is contradictory as to whether defendant was fully clothed at the time he came to the door. Defendant told the officers that he had been with Banks, McKinley Williams and Larry Starks earlier and that he and Larry Starks dropped off Banks on Fulton Street and then proceeded home. Defendant claimed that he arrived home at about 10:15-10:30 p.m. and that he fell asleep shortly thereafter; however, one of the officers who went to defendant’s home testified that defendant told him that defendant had arrived home at 1:30 a.m. From the testimony, it appears that John Starks went to the home of defendant with the police officers. Defendant was subsequently transported to the police station, where he was identified as being one of the persons who had been in his home earlier.

On November 19, Philip Smith was arrested at his home. Smith had been identified by the daughter who knew him from school. Smith directed police to another address where a stereo phonograph set was recovered. During the course of the investigation, a woman’s coat and a television set also were recovered. Subsequently, the daughter was taken to the police station, where she identified the property as that which had been taken from the Starks’ home on the morning of November 17.

The cause proceeded to trial following the indictment of Banks and defendant. Banks waived his right to trial by jury, while defendant was tried by jury. During the trial, the court cautioned the jury on numerous occasions that they were to be concerned only with the guilt or innocence of defendant and not that of his co-defendant Monroe Banks. During the conference on jury instructions, counsel for defendant objected to the use of modified forms of Illinois Pattern Jury Instructions (IPI). The IPI Criminal instructions which deal with the elements of a crime were modified to include a phrase dealing with the accountability of defendant for another’s conduct. The basis for the objections was that the instructions failed to provide the jury with adequate guidance on the issue of accountability. The court overruled defendant’s objections because it felt that the instructions would be given to the jury as a package and should be considered as such. During the course of considering the evidence, the jury sought the advice of the court concerning matters which arose during deliberation. The court informed the State and counsel for defendant that the jury had requested advice from the court. The court read the questions presented to it to counsel for defendant over the telephone. Defendant’s attorney stated that he had no objections to the court, responding to the jury’s questions with “You have he'ard the evidence and you will continue to deliberate.” The court stated that it did not believe that it would be proper for it to answer the juror’s questions because it would be substituting its judgment for that of the trier of fact. The jury then returned verdicts of guilty against defendant for the unlawful restraint and armed robbery of J. Starks and for burglary to commit armed robbery. The court stated that it would not enter judgment on the guilty finding for unlawful restraint because the crime merged into the offense of armed robbery.

At the sentencing hearing, counsel for defendant was asked whether he was ready to proceed with post-trial motions. Counsel responded that he would not raise any matters in post-trial motions because he was under the impression that the public defender would be handling the post-trial motions and the appeal of defendant’s convictions. Prior to the sentencing hearing itself, the court tendered to the State and counsel for defendant the presentence investigation report. During the hearing, the court vacated nunc pro tunc the judgment entered on the burglary finding. The court then sentenced defendant to concurrent terms of 13 years for armed robbery and 3 years for unlawful restraint. Defendant appeals.

Defendant first contends that he was denied his right to a fair trial because of the remarks made by the State during closing arguments, the trial court’s unresponsive answers to the questions posed to the court by the jury and by the dismissal of codefendant at midtrial without explanation to the jury. During closing argument, the State argued that defendant wants the jury to believe that “this is all a big conspiracy.” Closing argument by the defense made mention of the fact that the jury did not hear testimony from Monroe Banks. In the State’s closing argument, the State’s Attorney stated that the case disturbed him because “we have got armed robbers and home invaders and rapists all over the City of Chicago.” He told the jurors that they prevent anarchy in the streets by being members of the criminal justice system. He further told the jury that the defendant was using the smokescreen defense and the conspiracy defense. He also stated that it would be foolish for him to risk his law license by convicting innocent people. Counsel for the defendant objected to these remarks made during the State’s rebuttal argument and the trial court either overruled the objections or instructed the State to continue. The prosecution then began to comment on the evidence and stated, “You don’t hear from co-defendants. We can’t call co-defendants to testify.” The defense objected and stated that the State could call Philip Smith. The trial court sustained this objection. Defendant argues that these remarks were improper and resulted in prejudice to defendant which denied him his right to a fair trial. Defendant also contends that the trial court’s answers to questions posed by the jury during deliberation should have been answered. The defendant contends that the answers were to legal questions and not to factual questions and that the court should have responded to avoid confusion. Defendant also argues that the trial court committed error by dismissing codefendant without explanation to the jury. Defendant contends that this resulted in confusion of the jury.

The State argues that defendant waived the issue of improper closing remarks by failing to preserve it in a post-trial motion and by failing to object to some of the remarks made during argument to the jury. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Donald (1977), 56 Ill. App. 3d 538, 371 N.E.2d 1101.) Assuming that the issue has not been waived, the State contends that the prosecution drew proper inferences from the facts and circumstances established by the evidence. (See People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.) The State contends that it is proper for the prosecution to emphasize the evils of crime (People v. Griggs (1977), 51 Ill. App. 3d 224, 366 N.E.2d 581), that it is permissible to comment on the defendant’s trial tactics without accusing defense of any misconduct (People v. Johnson (1979), 73 Ill. App. 3d 431, 392 N.E.2d 587), and that it is permissible to comment on defendant’s use of a “smokescreen” defense when such an interpretation of the defense would be reasonable (People v. Madden (1978), 57 Ill. App. 3d 107, 372 N.E.2d 851; People v. Griggs). The State argues that even if the remarks were improper, they did not constitute a material factor in defendant’s conviction and did not substantially prejudice defendant. (People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516.) In response to the defendant’s next claim, the State contends that the court acted properly in its decision not to review the testimony with the jury since it is within the sound discretion of the trial court to refuse to answer questions posed by the jury where the questions require the court to make its own evaluation of the evidence or to discuss matters not in evidence. (People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819.) Concerning the defendant’s contention that the court should have responded to the jury’s questions concerning why certain individuals did not testify, the State argues that the court properly declined to answer because the jury is to be concerned with the facts established by the evidence and not the legal reasons as to why certain people did not testify. (See People v. Humphrey (1980), 89 Ill. App. 3d 673, 411 N.E.2d 1228.) The State urges that the other questions asked by the jury would have required the court to substitute its judgment for that of the jury. (People v. Williams.)

We elect to consider the argument of defendant despite the contention of the State that defendant has waived the issue concerning improper closing remarks. (See People v. Myles (1981), 86 Ill. 2d 260.) In determining whether the remarks made by the prosecution are prejudicial, reference must be made to the language used, its relationship to the evidence and its effect upon defendant’s right to a fair and impartial trial. (People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.) Our consideration of defendant’s contention leads us to conclude that the remarks of the prosecution during argument to the jury did not result in prejudice to defendant. Concerning the comment made concerning the State’s inability to call the codefendants to testify, we note that the defense first raised this matter in its closing argument and that the court sustained the defense’s objection to this remark by the State. Defendant’s contention that the trial court erred in not responding to the jury’s questions is misplaced. Four of the questions posed by the jury required the court to evaluate the evidence and respond to these questions with a conclusion. Additionally, the questions from the jury are to be literally construed. (See People v. Williams.) The remaining three questions sought the reasons why certain individuals did not testify at trial. The court properly refused to answer these questions since they called for an explanation of the legal reasons as to why the individuals did not testify. (See People v. Humphrey.) We also note that counsel for defendant was informed by the court of these questions and did not object to the court’s response. Since the tenor of the court’s answers to the questions was neutral and since the response of the court to the answers was proper, we cannot say that defendant was prejudiced by the court’s failure to answer the questions. The final contention that is raised by defendant concerning his claimed denial of his right to a fair trial is that the court erred in not informing the jury why the codefendant was dismissed at midtrial. Our review of the record disclosed that the jury was repeatedly admonished that it was to be concerned only with the innocence or guilt of defendant and not that of Monroe Banks. Despite these warnings, defendant contends that the unexplained absence of Banks deprived defendant of a fair trial. We disagree. Accordingly, we hold that defendant was not denied his right to a fair trial.

Defendant next urges that the trial court erred in giving modified forms of Illinois Pattern Jury Instructions (IPI) concerning the elements of unlawful restraint and armed robbery. The modified form of IPI Criminal No. 8.07 (1968), which was read over defendant’s objection, states in pertinent part:

“To sustain the charge of unlawful restraint, the State must prove the following proposition:
That the defendant, or one for whose conduct he is responsible, knowingly and without legal authority detained either [the daughter], or [the wife], or [J.] Starks.”

Defendant contends that the addition of the phrase, “or one for whose conduct he is responsible,” to this instruction and an identical modification to the instruction on the elements of armed robbery were improper because it failed to adequately instruct the jury on the issue of accountability. Defendant argues that the court should have used the words “legally responsiblé” rather than “responsible” in the instruction to avoid misinterpretation of the elements of the crime by the jury. See People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367.

The State argues that defendant waived this issue on appeal by his failure to preserve the issue in a post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) The State contends that, assuming defendant did not waive this issue on appeal, these modified instructions were proper under Illinois law since the instructions are considered as a whole and not individually (People v. Grignon (1976), 37 Ill. App. 3d 418, 346 N.E.2d 82; People v. Juve (1969), 106 Ill. App. 2d 421, 245 N.E.2d 293), and since the jury was also read IPI Criminal No. 5.03 which defines accountability. The State also urges that the addition of the word “legally” to modify “responsible” is not necessary and does not mislead the jury.

Although it would not be improper to hold that defendant waived this issue by failing to preserve it in a post-trial motion, we elect to consider defendant’s contentions. (See People v. Myles (1981), 86 Ill. 2d 260.) Since instructions to the jury are to be considered as a whole and not individually when evaluating their propriety (People v. Grignon; People v. Juve), a review of the entire set of instructions read to the jury leads us to conclude that the instructions were not misleading or prejudicial. (People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 424 N.E.2d 1178.) In addition to the instructions concerning unlawful restraint and armed robbery, the court also read to the jury IPI Criminal No. 5.03, which sets forth the standard under which one may be convicted under an accountability theory. Defendant’s contention that the instructions should have read “legally responsible” rather than “responsible” is also misplaced since IPI Criminal No. 5.03 instructs the jury when a person is “responsible” for the crime of another. Finally, we note that there was sufficient evidence to convict defendant of the two crimes based on his actual participation in the offenses, rather than on an accountability theory.

Defendant next urges that the trial court erred in sentencing defendant for unlawful restraint. He argues that the trial court did not enter judgment on the jury’s finding of guilty because the court believed that the offense of unlawful restraint merged into the armed robbery. Defendant contends that the sentence for unlawful restraint should be vacated since it is an “incomplete judgment.” See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.

The State argues that the offense of unlawful restraint does not merge into the armed robbery since the elements of these two crimes differ. The State also contends that the final judgment in a criminal proceeding is the sentence (People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283), and that it was proper for the court to reconsider its initial determination that unlawful restraint merged into the armed robbery.

We agree with the position of the State. Unlawful restraint occurs when an individual knowingly without legal authority detains another (Ill. Rev. Stat. 1973, ch. 38, par. 10 — 3), whereas armed robbery occurs when an individual takes property from another by force or threat of force while armed with a dangerous weapon (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2). Knowing detention without legal authority is not an element of armed robbery and, therefore, is not a lesser included offense of armed robbery. Defendant’s reliance upon Lilly to support his contention that the “incomplete judgment” should be vacated is erroneous. In Lilly, the trial court entered judgments on rape and indecent liberties. Upon sentencing defendant, the court sentenced defendant only for rape because the offenses arose out of the same act. The court, however, failed to vacate the judgment entered for indecent liberties. The supreme court granted defendant the relief sought and vacated the “incomplete judgment” pursuant to Supreme Court Rule 366 (Ill. Rev. Stat. 1973, ch. 110A, par. 366). In the instant case, judgment on the unlawful restraint was not entered at the time the verdict was returned. The court, however, did sentence defendant for this offense and the imposition of. the sentence constitutes the final judgment. (People v. Allen.) Therefore, defendant’s contention that he was sentenced improperly by the court because no judgment on the jury’s verdict had been entered is without merit.

The defendant also argues that he was denied his right to a proper sentencing hearing because the trial court did not specify on the record the reasons for imposing the sentences for the two offenses. (Ill. Rev. Stat. 1977 and 1978 Supp., ch. 38, par. 1005 — 4—1.) He also argues that the court failed to indicate whether it had read and considered the presentence report.

The State contends that defendant is precluded from raising this issue on appeal because no objections to the sentence were made to the failure of the court to specify reasons for imposition of the sentences. Had defendant objected at the hearing, the State argues that the court could have supplied the missing statement. (People v. Davis (1981), 97 Ill. App. 3d 235, 422 N.E.2d 920.) The State also argues that the omission did not result in prejudice to defendant. People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.

Although it would have been preferable for the trial court to have been specific in setting forth the reasons for imposing the sentence, we hold that defendant is precluded from raising this issue on appeal. (See People v. Davis (1981), 97 Ill. App. 3d 235, 422 N.E.2d 920; People v. Harvey (1980), 92 Ill. App. 3d 465, 415 N.E.2d 1161.) Had the defendant wanted an explanation of the factors considered by the court in sentencing defendant, he could have requested the court for a detailed recitation of the factors considered by the court. If this had been done, the court could have enumerated the factors which it considered in sentencing defendant. (People v. Davis; People v. Harvey.) In addition, defendant has failed to establish that he was prejudiced by the court’s failure to provide reasons for the sentencing determination. People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199; People v. Harvey.

Defendant next urges that the trial court erred in sentencing defendant to 13 years for his conviction for armed robbery because it was grossly disparate to the sentence received by his co-defendant. Monroe Banks was sentenced to concurrent eight-year terms for armed robbery, rape, attempted rape and indecent liberties. Defendant argues that the reason he received a greater sentence is that he was tried by a jury and he put forth a defense to the charges. In contrast, Monroe Banks was tried by the court and put forth a minimal defense to the charges. Defendant urges that his sentence should not be approved by this court because of the gross disparity in his sentence from that received by Monroe Banks. See People v. Bishop (1978), 60 Ill. App. 3d 940, 377 N.E.2d 585.

The State argues that the imposition of the sentence is within the sound discretion of the trial court and, absent an abuse of discretion, the sentence should not be disturbed on appeal. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The State contends that the trial court considered that Banks already was serving a 15- to 30-year sentence for murder. The State also urges that it was proper for the court to consider the defendant’s veracity since he testified that he was at home at the time the crimes were being committed. (People v. Nedelcoff (1980), 87 Ill. App. 3d 849, 409 N.E.2d 316.) In light of these facts, the State argues that the trial court did not abuse its discretion in sentencing defendant to a greater term than his codefendant.

Although it may appear that defendant’s sentence is disparate to that received by his codefendant, a consideration of a number of factors leads us to conclude that the trial court did not abuse its discretion in sentencing defendant to a term of 13 years. As noted by the State, Banks was serving a 15- to 30-year term for another offense. Banks did not put forth a serious defense to the charges, while Surges procured the testimony of two family members to substantiate his “alibi” that he was home during the commission of the crimes. His “alibi” was contradictory to the testimony of the victims and the police officers. Defendant’s presence also may have facilitated the commission of the crimes by Banks and Smith. The trial court is normally in a better position to evaluate the appropriate sentence for a defendant. The sentence which the court imposes depends upon a variety of factors, including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) It is the function of the trial court to fashion a sentence which considers these factors and, in our review of the record, we cannot say that the trial court abused its discretion. People v. Cox; see People v. Frank (1981), 98 Ill. App. 3d 388, 424 N.E.2d 799.

Defendant next contends that he did not receive effective assistance of counsel at trial. The sole basis for his contention is that his attorney failed to file any post-trial motions. The State contends that the record establishes that defendant’s counsel actively participated in pretrial discovery, in objecting to matters raised at trial, in cross-examining the State’s witnesses, in presenting witnesses on defendant’s behalf and in making a thorough closing argument. The State urges that the failure of defendant’s counsel to raise any post-trial motions would not have affected defendant’s convictions had they been raised in post-trial motions. The State argues that there was no substantial prejudice to defendant without which the result of the trial would probably have been different. People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.

We do not conclude that counsel for defendant was incompetent based upon his performance during the entire proceedings against defendant. In addition, there is no indication that substantial prejudice resulted to defendant which would have altered the result of the trial. (People v. Talley.) Aside from counsel’s failure to raise matters in a post-trial motion, defendant has failed to cite in the record any specific instances where he did not receive effective assistance of counsel. The failure of counsel for defendant to raise matters in post-trial motions, in and of itself, does not render his representation of defendant ineffective in light of counsel’s performance during the entire proceedings against defendant.

Finally, defendant contends that, the evidence did not prove defendant’s guilt beyond a reasonable doubt. Defendant points to various discrepancies between the evidence presented during the State’s case and that presented by the defense. Among the discrepancies in the evidence, defendant argues, are the identification of defendant, the lack of evidence as to whether defendant was armed or threatened any of the victims and the lack of participation by defendant in the crime against the victims.

The State argues that the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt. The State contends that any issues raised by conflicting testimony are to be resolved by the trier of fact. (See People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) The State argues that in this case the evidence established that defendant was one of the robbers on the street and that he stood guard over J. Starks while the crimes were being committed in the Starks’ home.

The testimony elicited at trial established that J. Starks had an opportunity to observe defendant both before and during the robbery on Chicago Avenue. While he was on the couch in his home, Starks saw defendant standing in the hallway while Banks and Smith were committing their crimes. Although defendant contends that there was no evidence which established that he was armed or threatened Starks, the evidence does establish that defendant was an active participant in the armed robbery of Starks and was involved in restraining him. Starks also identified defendant in a lineup at the police station. Starks’ daughter testified that she saw defendant outside the front door prior to opening the door for her father and the three men. The evidence also established that defendant was present during the commission of the crimes by the other assailants. Defendant presented evidence which he claims established that Starks was intoxicated at the time of the identification of defendant. He also introduced evidence which he contends establishes that he was at home during the time the crimes were committed. Defendant also presented evidence to show that Starks’ daughter did not have an ample opportunity to observe the assailants because the porch light at the Starks’ home was not working. Defendant points to a few other instances where he claims the evidence was not sufficient to establish his guilt beyond a reasonable doubt.

A court of review will not set aside a jury’s verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666; People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313; People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) The credibility of the witnesses -is to be evaluated by the trier of fact, and, in this case, the jury believed the testimony of the victims and the police officers over that of defendant and his witnesses. (People v. Yarbrough.) The evidence against defendant was overwhelming, and, accordingly, we cannot say the evidence failed to establish defendant’s guilt beyond a reasonable doubt.

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

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE RIZZI

license: Public Domain

text:
    RON STOPKA et al., Plaintiffs-Appellants, v. COMMERCIAL EMBROIDERY, INC., et al., Defendants.—(HELENA LIUZZA, Respondent-Appellee.)
    First District (3rd Division)
    No. 79-2368
    Opinion filed November 18, 1981.

      Vincent J. Pascucci, of Chicago (Griffin, Fiedler & Pascucci, Ltd., of counsel), for appellants.
    Wisch and Dyer, of Chicago (Dinah B. Dyer, of counsel), for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Ron Stopka, Sam Rarris and Dick Dellinger, are judgment creditors of defendants, Commercial Embroidery, Inc. (CEI), and Matthew Liuzza, president of CEI. Respondent, Helena Liuzza, is Matthew’s wife. Plaintiffs filed a petition for a turnover of assets against respondent, alleging that Matthew transferred his undivided one-half beneficial ownership of a land trust to respondent, and that this transfer was merely a sham to evade and defraud plaintiffs. The trial court denied plaintiffs’ petition. We reverse and remand.

On August 6, 1976, Matthew signed a promissory note and security agreement as president of CEI. He also signed the note and agreement individually, guaranteeing payment. The note was in the amount of $135,000 and was payable to plaintiffs in 90 days. The note was not paid when it became due, and plaintiffs obtained a default judgment against defendants on January 6,1977.

Meanwhile, on December 9, 1976, Matthew assigned his and respondent’s beneficial interests in a land trust to plaintiffs for collateral purposes. The res of the trust was the marital home. It appears that Matthew forged respondent’s signature on this assignment without her knowledge. The house was sold on February 1,1977, and was purchased by plaintiffs for $50,000. Plaintiffs then filed a complaint in chancery to confirm this sale. Matthew and respondent were named as defendants in the chancery suit. When respondent learned of the sale, she informed one of the plaintiffs that her signature on the assignment was a forgery.

On March 16, 1977, an agreemént was executed between CEI, Matthew, respondent and plaintiff Dellinger (on behalf of all plaintiffs). Pursuant to this agreement, Matthew and respondent were to obtain a $40,000 first mortgage loan on the property held in the land trust. They were to pay the proceeds to plaintiffs, and this amount was to be applied against the balance due on the default judgment. The agreement further provided that as long as CEI, Matthew and respondent were not in default of the agreement, no further action wquld be taken to enforce the default judgment. In addition, the chancery action would be dismissed, and the prior assignment of the beneficial interest in the land trust would be released.

On March 29, 1977, Matthew and respondent obtained the loan and endorsed the check for the proceeds to plaintiffs. The following notation was made on the check: “Pursuant to agreement entered into March 16, 1977.” On the same day, plaintiffs reassigned their interest in the land trust to Matthew and respondent.

It appears that a further default by defendants occurred, and plaintiffs caused a citation to discover assets to issue against Matthew on July 16,1977. On July 21, Matthew assigned his beneficial interest in the land trust to respondent. A citation to discover assets was issued against respondent on August 16. On September 20, plaintiffs filed their petition for a turnover order, alleging that Matthew’s assignment constituted a fraud on his creditors.

In her response to plaintiffs’ petition, respondent essentially alleged that she and Matthew agreed that he would assign his beneficial interest in the land trust to her in consideration of her obtaining the mortgage on the marital home. She further alleged that this agreement was made with plaintiffs’ knowledge. In their reply, plaintiffs alleged that the actual consideration for respondent’s obtaining the mortgage was set forth in the March 16 agreement whereby plaintiffs agreed to dismiss the chancery suit.

Discovery depositions were taken of Matthew and William G. Beck, the bank officer involved in making the loan to respondent and her husband. Beck stated in his deposition that the bank required the release of the prior assignment made to plaintiffs (the one involving the forgery) before any funds could be turned over to the Liuzzas. He also stated that respondent was quite upset and very concerned about the situation, and she insisted that control of the marital home be regained. Matthew stated in his deposition that he signed respondent’s name to the December 9, 1976, assignment without respondent’s permission and that respondent told him that she would not agree to mortgage their home unless she owned it.

The case was submitted to the trial court for determination without the testimony of the parties or witnesses. The court dismissed plaintiffs’ petition for a turnover order, and indicated that its ruling was based on the fact that the mortgage executed by respondent was in consideration of Matthew’s conveyance of his one-half interest in the marital property to respondent.

Section 4 of “An Act to revise the law in relation to frauds and perjuries” (Ill. Rev. Stat. 1975, ch. 59, par. 4) provides that any conveyance or assignment of real or personal property made with the intent to disturb, delay, hinder or defraud creditors is void as against such creditors. This provision is qualified by section 5 (Ill. Rev. Stat. 1975, ch. 59, par. 5), which states that the title of a purchaser for valuable consideration shall not be affected unless it appears that the purchaser had notice of the fraudulent intent of his grantor. (Wilkey v. Wax (1967), 82 Ill. App. 2d 67, 70, 225 N.E.2d 813, 814.) There are two general classifications of fraudulent conveyances. “Fraud in law” cases involve situations where there is no consideration given for the transfer. In those cases, fraud is presumed without the showing of a particular fraudulent intent. In “fraud in fact” cases, consideration is given, and an actual intent to defraud creditors exists. Tri-Star Cabinet & Top Co. v. Heatherwood Homes, Inc. (1976), 41 Ill. App. 3d 11, 13-14, 354 N.E.2d 4, 6; Wilkey, 82 Ill. App. 2d 67, 70, 225 N.E.2d 813, 814.

In the present case, although the parties sought to draw inferences on the questions of intent and whether there was fraud in law or in fact, there was no trial. The parties did not testify or produce witnesses who could have been called to testify, and they did not produce sufficient affidavits or other documents from which reasonable inferences of intent could be drawn. Generally, resort to abbreviated proceedings such as those presented by this record is inappropriate where the parties are seeking to draw inferences on the question of intent. (Cf. State National Bank v. Kewanee National Bank (1973), 16 Ill. App. 3d 272, 274, 305 N.E.2d 732, 733.) Where, as in this case, the record is not in a condition for the reviewing court to decide the issues presented with justice to all the parties, a reviewing court has the power to remand the case for further proceedings. (Inter-Insurance Exchange v. Employers Mutual Casualty Co. (1975), 31 Ill. App. 3d 906, 909, 334 N.E.2d 913, 915; see Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)(5).) In Kitzer v. Kitzer (1971), 1 Ill. App. 3d 1016, 274 N.E.2d 610, the court was faced with a similar situation. The court, quoting from American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, 329, 187 N.E. 495, 497, stated and held:

‘Where a material question is in controversy upon a material issue and the record discloses that all the evidence on that issue has not been produced, this court has the power to reverse the judgment and remand the cause for the taking of further evidence on the part of either or both of the parties, upon the issues.’
See also Henry’s Drive-In, Inc. v. Anderson (1962), 37 Ill. App. 2d 113, 185 N.E.2d 103, at page 110; and People v. McGrath (1967), 85 Ill. App. 2d 388, 229 N.E.2d 14, at page 15.
The judgment of the trial court is reversed and set aside and the cause is remanded to the Circuit Court with directions to take such further evidence that the parties may choose to present.” 1 Ill. App. 3d 1016, 1021, 274 N.E.2d 610, 614.

Here, we believe the same result should be reached. Accordingly, we reverse and remand the case for further proceedings consistent with what is stated herein.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.


author: Mr. PRESIDING JUSTICE ROMITI

text:
    CANDY ALLGAUER, Plaintiff-Appellant, v. LE BASTILLE, INC., Defendant-Appellee.
    First District (4th Division)
    No. 80-3023
    Opinion filed November 19, 1981.

      James A. Brandvik, Lowell H. Jacobson, and Craig E. Anderson, all of Jacobson and Brandvik, of Chicago, for appellant.
    Glen E. Amundsen and Victor J. Piekarski, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff filed suit for injuries sustained after she fell down a stairway when leaving defendant’s restaurant after dinner. The trial court granted summary judgment for the defendant.

We reverse and remand for a trial on the merits.

Le Bastille Restaurant is located on the north side of Chicago in a building owned by the defendant Le Bastille, Inc. The evidence discloses that on May 3,1974, the plaintiff, Candy Allgauer, went there as a patron to dine along with her husband and two friends. To go up to the restaurant, she entered through an outside door, climbed a stairway and passed through another door into the restaurant itself. After dinner the four prepared to leave the restaurant. Plaintiff’s husband opened the door at the top of the stairs. She walked through, expecting there to be a landing. Instead there was a step. She fell to the bottom of the stairway and broke her arm. In her deposition, she stated that she knew of nothing on the stairs that would cause her to trip; that she did not recall any stair being in disrepair and she did not remember any debris being on the stairs. There was no contention the lighting was defective. She stated that she had expected to walk out and then walk downstairs and “I walked and instead of walking onto a level surface, I went down the stairs.” She also stated the stairs seemed narrow. In an affidavit filed in opposition to the defendant’s motion for summary judgment, Beth Prince, one of the two friends who had been with plaintiff at the time of the fall stated that the doors opened onto the stairway and blocked one’s view of the stairway until they were swung open. At this point there was no vestibule preceding the steps; the steps were immediately in front of one. The steps were very steep and the tread on each stair was narrow. The plaintiff, in opposition to the motion for summary judgment, also presented the evidence of certain ordinances requiring vestibules, and requiring the tread on a stairway to be at least 10 inches wide. Defendant refuted these last contentions by pointing out, accurately, that the ordinance requiring vestibules was inapplicable to interior stairs and there was no evidence that the tread on the stairs was less than 10 inches wide.

The defendant had moved for summary judgment contending that:

1. plaintiff had stated she had no knowledge of what condition or instrumentality caused her to fall and liability could not be based on conjecture;

2. the crux of plaintiff’s claim was that she anticipated a landing which was not there; and although she said the tread seemed narrow, she also said she knew nothing about the stair which would cause her to fall. (This was not accurate; she only said she knew of nothing on the stair which would cause her to fall);

3. the defendant could not be held liable for failing to foresee that plaintiff would anticipate a level landing; rather plaintiff’s account raised the inference of contributory negligence in failing to watch where she was stepping. The trial judge granted the motion, apparently finding that plaintiff, having already used the stairs to enter the restaurant, knew of their condition.

As this court recently ruled in Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328, a plaintiff cannot recover where there is no evidence as to why she fell and that the condition was caused by the defendant. However, we disagree with defendant’s contention that plaintiff in this case cannot say what aspect of the stairs or adjacent premises under defendant’s control caused her to trip or fall. It is true that plaintiff has not contended that there was debris on the stair, that the lighting was defective, or that the stairs or carpeting were defective. But plaintiff has clearly stated that what caused her to fall was the unexpected dropoff. Her evidence, construed most favorably to her, tends to show that she fell because she stepped down a stair where a landing was expected, that the absence of a landing was concealed by a door which opened out onto the stair, that the stair was steep and narrow and no warning was given of this dangerous condition.

The owner of business premises has a common-law duty to an invitee to exercise ordinary care and maintenance of his property (Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099), and to prevent injury to those entering the premises. (Kylavos v. Polichrones (1942), 316 Ill. App. 444, 45 N.E.2d 99 (abstract).) The defendant owed plaintiff the duty to exercise ordinary care to have the premises in a reasonably safe condition to use in a manner consistent with the invitation, or at least not to lead her into a dangerous trap, or expose her to an unreasonable risk. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47; Mock v. Sears, Roebuck and Co. (1981), 101 Ill. App. 3d 103, 427 N.E.2d 872.) It owed a duty to discover dangerous conditions existing on the premises and to give sufficient warning to plaintiff to enable her to avoid injury. (Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 328 N.E.2d 290; Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099; Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865; Hutter v. Badalamenti (1977), 47 Ill. App. 3d 561, 362 N.E.2d 114.) A concealed stairway may be a trap or pitfall where no warning is given. (May v. Hexter (Mo. App. 1950), 226 S.W.2d 383.) A steep staircase without any landing or with one beginning before the end of the edge of the door when it is opened onto the stair may be found to be dangerous. (Skidd v. Quattrochi (1939), 304 Mass. 438, 23 N.E.2d 1009; Giliberto v. Yellow Cab Co. (7th Cir. 1949), 177 F.2d 237.) Likewise, an owner or occupier may be negligent where a step is masked in some way so a person might not notice it before stepping on it. Boyle v. Simon (8th Cir. 1977), 558 F.2d 896; Hall v. Bakersfield Community Hotel Corp. (1942), 52 Cal. App. 2d 158, 125 P.2d 889.

A jury here could find that the absence of a landing or the steepness of the stairs rendered them hazardous. If it did so determine, it could also find that the defendant had a duty to correct the danger or warn plaintiff of it, neither of which it did. A landowner or occupier has a duty to give proper warning of hidden dangers. An invitee may assume others have done their duty to give proper warning of hidden dangers and apart from obvious dangers can assume the premises are reasonably safe. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47; Mock v. Sears, Roebuck and Co. (1981), 101 Ill. App. 3d 103, 427 N.E.2d 872.) Here the danger was hidden by the door until it was opened, and the fact that the stair could be seen for the split second plaintiff was placing her foot on it does not necessarily remove it from the realm of hidden dangers.

Defendant’s contention is that when climbing the stairs plaintiff should have realized that- although they were not dangerous to ascend they might be dangerous to descend. Then, having realized this, plaintiff should have remembered that danger some two hours later when leaving the restaurant. Defendant also contends that when leaving the restaurant plaintiff should have stopped and looked at the stairs before she walked through when her husband opened the door. But these contentions do not go to the issue of whether the defendant was required to give warning of the danger. Rather, they concern whether the plaintiff was guilty of contributory negligence.

Even if plaintiff was aware of the defective condition, her failure to look at the area would not necessarily constitute contributory negligence as a matter of law. (Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941.) A person may have a general knowledge of a source of danger prior to injury and still not be negligent where his attention was distracted. (Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App. 3d 892, 365 N.E.2d 446.) A reasonable instance of momentary forgetfulness is not negligence as a matter of law. (Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App. 3d 892, 365 N.E.2d 446.) Furthermore, a jury could reasonably find that plaintiff’s observations when climbing the stairs would not necessarily put her on notice of any special dangers when descending since the danger of a sudden step is not present to one ascending the stairs.

Accordingly, the judgment of the trial court is reversed and the case remanded for further proceedings.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.

       Since the decision was rendered before June 8, 1981 contributory, not comparative, negligence was an issue. On remand, however, the plaintiff may proceed upon a comparative negligence theory of recovery. Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886; Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 423 N.E.2d 1321.


author: Mr. JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE NUNN, Defendant-Appellant.
    First District (5th Division)
    No. 79-1890
    Opinion filed November 20, 1981.

      Ralph Ruebner, of State Appellate Defender’s Office, and William R. Hogan, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mark E. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was convicted of one count of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2) and three counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4), and sentenced concurrently on all counts to 10 years’ imprisonment. He appeals and contends as follows: (1) the trial court erred in failing to suppress his post-arrest statement elicited in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the pretrial identification procedures employed by the police were unnecessarily suggestive and violated his due process rights; and (4) the trial court erred in sentencing him to concurrent terms of 10 years’ imprisonment for each count charged where the offenses were part of the same act or transaction, and were not “independently motivated” or otherwise separable.

The following pertinent testimony was adduced at trial.

Enzio Primer testified that on April 28, 1978, he left work at 4 p.m. and went to a currency exchange to cash his paycheck. He then went to a tavern at the corner of Oakley and 13th Street in Chicago, where he had a “couple of beers.” After about an hour, Primer left the tavern, stopped at his home, and proceeded to a friend’s home located at Cicero and Polk Street. While there, he shared a pint of liquor with his friend. At 11 p.m., he departed for a tavern on Kedzie Avenue between 15th and 16th Streets, where he had a shot of whiskey and two beers. He returned to his home at 1549 S. Kedzie Avenue at around 2 a.m.

An hour later, he left his home to buy some cigarettes at a service station at 16th and Sawyer, about one block away. On the way there, Primer saw two men standing in front of a tavern on Kedzie Avenue named “Bucket of Blood.” He recognized one of the men as “Weaver,” who had previously lived across the street from him. He identified Weaver in court as the defendant. As he returned from the service station, he noticed that the two men were still standing in front of the tavern. When he stopped at an empty lot near his home to open the cigarettes, he was “slugged” on the back of the head, knocked to the ground and stabbed in the back. He had $24 in his wallet and $40 in his shirt pocket. Someone removed the wallet, but he was unable to see the assailant since he was lying on his face. While he was on the ground being stabbed, Weaver asked Primer where the rest of his money was. At this juncture, someone yelled, “Leave that man alone,” and the two men fled. Weaver ran down Kedzie Avenue toward 16th Street.

Primer got up and walked to his home. Shortly thereafter, he returned to the scene of the crime with a flashlight. After he found his keys and empty wallet on the ground, he went to another friend’s home, and they called an ambulance. Before the ambulance arrived, Carrie Nunn, defendant’s mother, came to Primer’s house. He told her that her son had just stabbed and robbed him. The ambulance took him to Mt. Sinai Hospital, and he was later taken to Cook County Hospital.

While Primer was in the hospital, he was shown a group of six photographs by a police officer. He identified one of the pictures as that of defendant. At trial, he picked out the same picture of defendant.

On May 3, 1978, after a five-day stay at the hospital, Primer was brought by a police officer to the police station. He and the officer walked into a room where defendant was being held. Primer stated to him, “Man why do you do something like this to me?” According to Primer, defendant responded that he “didn’t know it was me [Primer] and he wasn’t intending to do it to me.”

Investigator Thomas Konczal of the Chicago Police Department testified that on May 1, 1978, he spoke with various residents in the vicinity of the attack and obtained a photograph of defendant from the police files. Then, he brought this photograph along with five others to the hospital and displayed them to the victim. Konczal corroborated Primer’s testimony that the latter selected defendant’s picture as the person who robbed him on April 29,1978.

Investigator James Gruber of the Chicago Police Department testified that he arrested defendant in a pool hall on May 3,1978. On the way to the police station, he informed defendant of his Miranda rights. ^Defendant stated that he understood these rights.

At the station, defendant was placed in a second floor interview room and handcuffed to a ring on the wall. Gruber readmonished defendant of his Miranda rights. Defendant stated that he understood his rights, but asked the reason for his arrest and demanded to be confronted by his accuser. Gruber picked up Primer at the hospital, and told him that an arrest had been made and that he wanted him to view someone. When Gruber brought him into the interview room at the police station, Primer immediately asked defendant, “Why did you do this to me?” Defendant replied, “Man, I didn’t know it was you we cut.” Primer and Gruber then left the room.

Carrie Nunn testified on defendant’s behalf that at the time of the crime she lived at 3153 West 16th Street with defendant, her son. After the attack, she saw Primer standing in front of his house. Primer told her: “Your son saved my life.” He then told her that another man attacked him with a knife and that “if it wasn’t for Weaver, he would have killed me.” According to Nunn, Primer never told her that defendant struck him or took money from him.

Defendant testified on his own behalf that in the early morning hours of April 29, 1978, he went to his girlfriend’s house at 3145 W. 15th Place. As he was passing a vacant lot on the way there, he heard a struggle and ran over and pulled a “stud” off Primer. Defendant had never seen this assailant before and saw no knife in his possession. The person fled and defendant continued on to his girlfriend’s house. Primer remained on the ground.

Later, when defendant was arrested and brought to the police station, he denied having any conversation with the police. Primer was brought into the second floor room where he was being held and defendant said to him: “Mr. Primer, I didn’t know it was you the stud robbed back there.” Then, according to defendant, the police took Primer out of the room and “* ” * told him [Primer] me and him don’t need to be talking.”

Defendant denied robbing or striking Primer or assisting anyone in doing so. Defendant, 21, had known Primer since he was 14 years old, had been to his home on several occasions and had spoken with him over drinks. On the night of the crime, defendant denied standing in front of the “Bucket of Blood” tavern, although he saw several other people congregated in the area. He did not know that Primer was the victim of the attack, and he left the victim on the ground since he “thought he was all right.”

Opinion

Defendant first contends that the statement he made in the interview room of the police station when confronted by the victim was obtained in violation of his constitutional right to silence under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and that its admission into evidence constitutes reversible error.

Prior to trial, defendant filed a motion to suppress statements. At the hearing on the motion, Investigator Gruber testified that after he arrested defendant, he informed him of his Miranda rights. Defendant stated that he understood these rights. Gruber asked defendant if he wished to make a statement, and defendant replied, “No.” Defendant was again admonished of his Miranda rights at the police station. While in the interview room at the station, defendant demanded to be confronted by his accuser. Primer was brought into the room and immediately asked defendant why he had attacked and robbed him. Defendant replied: “Man, I didn’t know it was you we cut.” According to Gruber, this confrontation was arranged at defendant’s request. Gruber asked no questions of defendant, nor did Primer ask Gruber if he could speak to defendant. The trial court denied defendant’s motion to suppress.

In order to determine whether a violation of defendant’s constitutional rights occurred in this case, we start with the proposition that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of an accused unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602). It is clear from the record that defendant was admonished of his Miranda rights and that he understood these rights. After being so admonished, defendant indicated to Investigator Gruber that he did not wish to make a statement. Once an individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. (Miranda.) The question in this case thus becomes whether the conduct of the police in arranging the confrontation between defendant and the victim which led to the incriminating statement constitutes “interrogation” under Miranda.

In Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682, the United States Supreme Court held that Miranda safeguards come into play whenever a person in custody is subject to either express questioning or its “functional equivalent.” The court stated that:

° * [T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Emphasis added.) Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689.

In Innis, defendant was admonished of his Miranda rights after his arrest for armed robbery. He stated that he understood his rights and wanted to speak with an attorney. While enroute to the police station in a squad car, two police officers engaged in a conversation between themselves in defendant’s presence concerning the missing shotgun used during the commission of the crime. One of the officers stated that there were several handicapped children in the area, and expressed a fear that one might find the weapon with shells and harm himself. Defendant interrupted the conversation and told the officers to turn around the car so that he could lead them to the shotgun. At the scene of the arrest, defendant was readmonished of his Miranda rights, and stated that he understood these rights, but feared for the safety of the children. He then led the police to the gun. The court held that under these facts, defendant was not “interrogated” in violation of his right under Miranda to remain silent. According to the court, there was no express questioning of defendant since the conversation between the two officers was a dialogue inviting no response from defendant. Moreover, it was found that defendant was not subjected to the “functional equivalent” of questioning because the officers could not have known that their conversation was reasonably likely to elicit defendant’s incriminating response. In so ruling, the court noted that there was nothing in the record suggesting that the officers were aware that defendant was particularly susceptible to an appeal to his conscience concerning the safety of handicapped children, or that they knew that defendant was unusually disoriented or upset at the time of his arrest.

The rationale of Innis is equally applicable here. Once defendant indicated after receiving Miranda warnings that he wished to remain silent, his questioning ceased. The victim was later brought to the interview room as a result of defendant’s request to confront his accuser. The police officer said nothing to defendant at the confrontation, nor is there any evidence that he instructed the victim to speak to defendant. In addition, nothing in the record indicates that defendant was unusually disoriented at the time of the confrontation, or that he was particularly susceptible to the type of unforeseen statement made by the victim. Under these circumstances, we do not believe that the police officer’s conduct in arranging this confrontation was reasonably likely to elicit an incriminating response from the defendant. Thus, defendant’s spontaneous reply to the victim’s outburst was not the product of police “interrogation” or its “functional equivalent,” and its admission into evidence was proper.

Cases cited by defendant from other jurisdictions in support of its position that interrogation occurred in this case are distinguishable and unpersuasive. (People v. Bodner (1980), 75 App. Div. 2d 440, 430 N.Y.S.2d 433; In re Durand (1980), 206 Neb. 415, 293 N.W.2d 383.) In Bodner, the 17-year-old retarded defendant told the police that his cousin had started several fires in the area. After checking out the cousin’s alibi, the police confronted defendant with the untruthfulness of his statement. He then made an incriminating response. In Durand, a police officer did not cease conversation with defendant after he indicated his desire to remain silent. Instead, the officer showed him police reports of unsolved burglaries for which he was suspected. A short time later, defendant made a statement implicating him in a theft of money. The police conduct in each of these cases was held to constitute interrogation or its functional equivalent as defined under Innis. Yet, such conduct is plainly distinguishable from that in the present case. Unlike the situation in Bodner and Durand, the confrontation at bar was instigated by defendant. In addition, the victim did not ask to see defendant nor was he instructed by the police to say anything to him at their meeting. Therefore, it cannot be said that defendant was subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.

Defendant next contends that the State failed to prove his guilt beyond a reasonable doubt. This claim is premised upon defendant’s belief that his incriminating pretrial statement was admitted into evidence in violation of his constitutional rights, and that the victim’s identification of him as one of the assailants was unreliable. We have already decided that the statement was properly admitted into evidence. Therefore, we turn to the defendant’s arguments concerning his alleged misidentification.

According to defendant, the victim’s initial identification of him stemming from the recognition of his voice at the scene of the crime was so inherently unreliable that it raises substantial doubts as to his guilt,

Identification by voice is permissible and may establish defendant’s guilt beyond a reasonable doubt. (People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414.) This manner of identifying an accused goes only to the weight of the identification testimony, which is to be evaluated by the trier of fact. (People v. Finney (1967), 88 Ill. App. 2d 204, 232 N.E.2d 247, cert. denied (1968), 392 U.S. 936, 20 L. Ed. 2d 1394, 88 S. Ct. 2304.) We believe that the voice identification in the present case was reliable and supports defendant’s conviction. Although Primer never saw the face of either of the assailants at the time of the attack, he recognized defendant’s voice when he asked Primer where the rest of his money was. Primer had known defendant, a neighbor of his, for over five years. They visited each other’s homes on several occasions, spoke with each other and had drinks together. We are aware of the victim’s testimony that he drank a considerable amount of alcohol on the night of the crime. The trial court, of course, was obligated to consider Primer’s physical condition at the time the identification was made. However, the credibility of the witnesses and the weight to be given their testimony is for the trier of fact. (People v. Green (1978), 62 Ill. App. 3d 420, 379 N.E.2d 119.) We decline to substitute our judgment for that of the trial judge, who was able to observe the demeanor of each of the witnesses, concerning their credibility. We believe that the victim’s identification of defendant was reliable due to the past relationship between the two, which provided an opportunity for Primer to become familiar with defendant’s voice. The manner of identification was not so improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant points to alleged inconsistencies in Primer’s testimony in an effort to establish that it was vague and uncertain. For instance, on cross-examination, Primer stated that he had never had any “personal contacts” with defendant and could not recall when they last spoke to each other before the attack. Our reading of the transcript reveals that defendant was apparently initially confused by the term “personal contacts,” but later stated that he had seen and spoken to defendant on several occasions. At first glance, there also appears to be some minor confusion in Primer’s testimony as to how he was transported to the hospital. While Primer stated he went in an ambulance, Investigator Konczal’s report indicated that the police took him there. A close reading of the record, however, shows that no contradiction in Primer’s testimony actually exists since the police accompanied him to the hospital in the ambulance. Finally, defendant maintains that Primer’s testimony was uncertain regarding the amount of money that he had when he was robbed. Primer first testified that he had $64 when attacked and that he had spent the rest of his money (a paycheck for over $100) on alcohol. He later stated that he had put some of the money in the house. Yet, this testimony is not necessarily inconsistent, since Primer may have referred to his “money” in the first instance as that which he spent that night instead of the remainder of his paycheck. In any event, we hold that any discrepancies in Primer’s testimony in this regard were minor and did not render it unworthy of belief.

Defendant next maintains that the erroneous voice identification by Primer led to the photographic identification procedure, which was conducted under suggestive circumstances.

Prior to trial, defendant moved to suppress the photographic identification testimony. No testimony was presented on the motion. Defense counsel argued to the trial court that the array of six pictures shown to defendant was suggestive since two of the six pictures contained therein were of white males even though the assailant had been identified as a black male. Also, defendant’s photo had a handwritten identification record (IR) number on it, differing from the magnetic block numbers portrayed on the other suspects’ pictures. The trial court denied the defendant’s motion to suppress.

Initially, we note that the supplemental record filed with this court shows that all six of the photographs in the display depict black males. We are, therefore, at a loss to understand the basis of defendant’s assertion that two of the photographs were of white males. Nevertheless, even if only four of the pictures were, indeed, of black males, we find that the array was not unnecessarily suggestive.

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) Each case involving photographs must be considered on its own facts. (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) In Witted, the court found a photographic display of 25 pictures not to be suggestive where defendant’s photo was the only one in the group without any writing on it and with only a single view rather than two views. Likewise, the court in People v. Hart (1973), 10 Ill. App. 3d 857, 295 N.E.2d 63, ruled that the photographic procedure was not so improper as to require reversal even though defendant’s picture was larger than the four others, and his was the only one with a date written on it. Certainly, the photographic display in this case is no more suggestive than those in Witted and Hart. Moreover, it is very unlikely in this case that the photographic identification procedure led to an irreparable misidentification since the victim knew defendant for several years prior to the attack. Thus, defendant’s motion to suppress the identification testimony was properly denied.

Defendant also contends that the confrontation he had with the victim in the interview room of the police station was unnecessarily suggestive and reinforced the earlier photographic identification of him as the assailant. It is defendant’s belief that his identification at trial was fatally tainted by this pretrial confrontation.

An in-court identification is admissible regardless of the suggestiveness of pretrial identification procedures when from the totality of the circumstances it is shown by clear and convincing evidence that the identification was based on observations of the defendant other than during the arguably improper pretrial identification. (People v. Lomax (1980), 89 Ill. App. 3d 651, 411 N.E.2d 1212.) Where the person identified is known to a witness prior to the crime, the identification by that witness is not influenced by any pretrial confrontation. (People v. Mueller (1973), 54 Ill. 2d 189, 295 N.E.2d 705, cert. denied (1973), 414 U.S. 1044, 38 L. Ed. 2d 335, 94 S. Ct. 549; People v. Kane (1980), 81 Ill. App. 3d 641, 401 N.E.2d 1310.) It is evident from the facts of this case that the victim’s identification of defendant at trial was not influenced by their confrontation at the police station since the two had known each other for several years prior to the crime. Therefore, the in-court identification had an independent origin and was properly admitted at trial.

In summary, we hold that the victim’s identification of defendant as one of the assailants was neither influenced by the pretrial photographic display nor the confrontation at the police station. Rather, the identification stemmed from the victim’s recognition of the voice of defendant, his former neighbor, at the time of the incident. Moreover, although the victim had not seen the face of either of the two men at the time of the attack, he observed defendant and another man near the scene of the crime shortly before it occurred and saw defendant run down the street afterwards. When this identification testimony is coupled with defendant’s incriminating statement at the police station, there can be no reasonable doubt as to his guilt.

It is of no significance that the victim did not see which of the assailants actually stabbed him and which removed his money. Clearly, defendant is legally accountable for the acts of his accomplice since both were active participants in the crimes. Defendant’s arguments that the evidence, at best, merely establishes his presence at the scene of the crime, is without merit. Suffice it to say that defendant’s question to the victim during the crime concerning where the rest of his money was, and his later manifestation of surprise that Primer was the person that he and his accomplice had “cut,” convincingly demonstrate that he was not just an innocent passerby.

Finally, defendant contends that the trial court erroneously sentenced him on the charges of armed robbery and aggravated battery, since both arose out of the same actions and are not “independently motivated” or otherwise separable. We disagree.

When more than one offense arises from a series of incidental or clearly related acts and they are not, by definition, lesser-included offenses, multiple convictions with concurrent sentences may be entered. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The “independent motivation” test, relied upon by defendant as a standard for determining whether multiple convictions and concurrent sentences may stand, has been specifically rejected by our supreme court. (King.) More specifically, it has been held that concurrent sentences can be properly entered upon convictions for both armed robbery and aggravated battery. (People v. Higgins (1979), 71 Ill. App. 3d 912, 390 N.E.2d 340; People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.) Because each of defendant’s offenses arose from separate acts (i.e., knocking the victim down, stabbing him and removing his money), his convictions and concurrent sentences are proper.

Accordingly, for the reasons stated, the judgment of the circuit court is hereby affirmed.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK TEAGUE, Defendant-Appellant.
    Third District
    No. 79-806
    Opinion filed November 17, 1981.

      Robert Agostinelli and Thomas Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Larry Wechter and Robert J. Biderman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

This appeal is taken by the defendant, Frank Teague, from his conviction for armed robbery and unlawful use of weapons following a jury trial in Peoria County. He was sentenced to a term of 12 years’ imprisonment on the armed robbery conviction only.

The defendant contends that his trial counsel was incompetent for failing to seek suppression of certain evidence, and that the trial court improperly considered the defendant’s receipt of compensation from the robbery proceeds as an aggravating factor in sentencing.

Only those facts necessary for a resolution of the issues raised on appeal will be presented. The incidents giving rise to the defendant’s convictions occurred around 8 p.m. on December 27, 1977. On the night in question, Peoria police officer Ed Olehy was on his way to work in an unmarked squad car with his partner Dean Blair when they heard a dispatch about a shooting at 615 MacArthur Avenue. They answered the call, which turned out to be a false alarm. While still at the scene, the officers received a call about an armed robbery at the Del Farm Store at 8:06 p.m. and proceeded toward the store on Howett Avenue. As he approached the intersection of Howett and Blain Streets, Officer Olehy noticed a car driven by a black male traveling on Blain Street in a manner that indicated the car would fail to stop, although Blain Street contains a posted stop sign at the intersection. The police officers had the right of way on Howett Avenue, a through street. The car approaching on Blain did come to a sudden stop when the driver, the defendant in the present case, suddenly applied the brakes.

The police officers continued through the intersection without incident and drove two more blocks to the scene of the robbery. They did not stop at the scene but instead drove toward Blain Street through an alley, because Officer Olehy felt the car he had seen was suspicious. Although it is not clear from the record, other officers apparently had arrived at the robbery scene prior to the arrival of Olehy and Blair.

When the two officers reached Blain Street, they observed the defendant’s car near Blain and Linden Streets, two blocks from the Del Farm Store. When the driver of the car appeared to pull an item of clothing over his head, the officers decided to make an investigatory stop. However, when the lights and siren were turned on in the squad car, the defendant’s car sped away.

A high speed chase ensued through and beyond the Peoria city limits. At speeds of 85 to 95 miles per hour, the defendant drove through stop signs and in the wrong lane of traffic while as many as six police cars followed in pursuit. The defendant was finally run off the road and ordered to exit his vehicle. He struggled with the police, but was subdued and handcuffed as he was arrested.

Officer Olehy found several articles of clothing, including a brown cap in the car, along with a brown paper bag full of money, a small walkie-talkie and a duffel bag.

Officer Walter Jatkowski, the crime technician called to the scene, removed a brown leather coat from the car. He opened the duffel bag and found a disassembled shotgun with a 13M inch barrel. A box of .22-caliber bullets was also found in the duffel bag. This shotgun formed the basis for the defendant’s unlawful use of weapons conviction.

The following day, Officer Jatkowski found a tan turtleneck sweater which the robbery victim identified as having been worn by the robber in a ditch along the chase route. An ear plug for a police scanner found in the defendant’s car was intertwined with the tan sweater.

A .22-caliber gun was also found along the chase route. The ammunition from the gun was similar to that in the box from the duffel bag.

The items of apparel, the two guns, the duffel bag, the ammunition, and the scanner outfit were all admitted into evidence. The defendant’s appointed trial counsel did not move to suppress these items in a pretrial motion. During the course of Officer Olehy’s testimony, defense counsel did raise a suppression motion, on the basis of a lack of probable cause for the initial stop of the defendant. The jury was taken out, and Officer Olehy testified on the motion. Upon being told that the police officers had not activated their sirens and lights and moved to stop the defendant until they saw him remove an article of clothing, defense counsel withdrew his suppression motion.

The defendant now contends that he was denied his constitutional right to the effective assistance of counsel by his attorney’s failure to raise or pursue a motion to suppress evidence. While we find the rationale for the initial stop of the defendant subject to debate, we do not find defense counsel’s representation of the defendant ineffective under the facts of this case.

Defense counsel studied the police reports prior to trial and decided against the filing of a suppression motion based on Officer Olehy’s statement that the decision to stop the defendant was not made until after the officers observed him removing an article of clothing. When Officer Olehy’s testimony at trial differed from his statement in the police reports, defense counsel made an oral motion to suppress. However, when Olehy reasserted the additional facts contained in his report, counsel withdrew his motion.

We cannot say that defense counsel’s actions regarding the suppression motion amount to actual incompetence which substantially prejudiced the defendant, the standard by which ineffective assistance of appointed counsel is judged. (People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523.) Certainly, defense counsel’s representation of the defendant was not so defective as to render the defense a sham or a farce. Upon consideration of all the circumstances of this case, we conclude that the defendant was ably represented. People v. Washington (1968), 41 Ill. 2d 16, 241 N.E.2d 425.

The defendant was sentenced to a term of 12 years’ imprisonment solely on the armed robbery conviction. In pronouncing sentence, the trial judge considered three factors in aggravation: (1) that the defendant’s conduct caused or threatened serious harm; (2) that the defendant received compensation for committing the offense; and (3) deterrence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a).) The single mitigating factor considered was the fact that the defendant led a law-abiding life for a substantial period of time before commission of the instant offense. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1(a)(7).

The compensation factor was improperly considered by the trial judge. The Illinois Supreme Court recently held that compensation for committing an offense can properly be considered as an aggravating factor only when the defendant receives remuneration other than the proceeds from the offense itself . (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Eecause we cannot be certain how much consideration the trial court gave to the improper factor, we must remand for resentencing.

At the resentencing hearing to be held pursuant to this court’s mandate, we direct the trial judge to impose a sentence upon the defendant’s unlawful use of weapons conviction. The record shows that the trial judge did not sentence the defendant for that offense, because he believed it merged into the armed robbery. This belief is erroneous. Sentencing on more than one offense is only prohibited where the multiple offenses are based on the same physical act or where lesser included offenses are involved. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) In the present case, the unlawful use of weapons offense was based upon the defendant’s possession of the shotgun found in his duffel bag, a circumstance unrelated to the armed robbery in which the defendant carried a handgun. In addition, neither offense in the case at bar is a lesser included offense of the other, since each offense requires proof of different elements. Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(a), 24 — 1(a)(7).

For the foregoing reasons, although we affirm the judgment of the Circuit Court of Peoria County, we vacate the sentencing order and remand the cause for resentencing with directions.

Judgment affirmed, sentence vacated, and cause remanded with directions.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    HAROLD E. RUNGE et al., Plaintiffs-Appellants, v. FRANK DeKEYREL, Defendant-Appellee.
    Third District
    No. 81-105
    Opinion filed November 17, 1981.
    Samuel S. McHard, of Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellants.
    John G. Ames, of Minteer, Ames & Manecke, of Coal Valley, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Appellants and their predecessors in title have owned and occupied land on one side of an old fence, mostly hedge, for more than 20 years. Appellee and his predecessors in title have owned and occupied the land on the other side of the fence. The fence had been considered the boundary line between the two parcels of land for at least 50 years.

Appellants commenced an action to have the division fence between the two properties moved between 14 and 25 feet on the basis that the fence did not represent the true and correct boundary between them as shown by a plat of survey conducted by one D. F. Casey.

Casey testified that he used no governmental monuments as starting reference points in making his survey, but established such points through the process known in surveying as “reconstruction.”

In 1966 a township survey plat showed a road on the land in question. However, no road was ever actually created.

The uncontroverted testimony of prior owners of appellants’ tract, who have no interest in the outcome of the litigation, established that the fence as it exists today existed in the same place from the time a Mr. Tomlinson bought the property until the present, and that these predecessors in title acknowledged that fence to be the boundary and acquiesced in its location.

Appellant himself testified that he did not question the boundary either until some time after he learned of a survey made by Mr. Casey, and he in fact made repairs to the fence both before and after that date and continues to do so.

No evidence was introduced that the line of the fence has ever varied over the past 25 years. On the contrary, the testimony of both sides was that the fence has not been moved or varied in any manner during that time.

From an adverse ruling declaring that defendant had acquired title to the disputed strip of land by adverse possession, plaintiffs have appealed.

In the present case plaintiffs filed a complaint in which they alleged that a certain plat of survey prepared by D. F. Casey showed the true boundary line between their property and the defendant’s property, and that the existing fence was not the true boundary between their respective properties. Therefore, the plaintiffs had the burden of proving that the survey line on which they relied was correct. This they failed to do.

The survey which plaintiffs claim establishes the correct boundary between their property and the defendant’s property was prepared by D. F. Casey. Plaintiffs attempted to introduce into evidence as exhibits an 1866 road plat and the field notes made in connection with the preparation of that plat. However, Mr. Casey did not state on direct examination if he used those two exhibits in the preparation of his plat, and in fact did not state specifically what method he did use to establish his reference points to run the section line.

In cross-examination, Mr. Casey testified that not only were the stones from the original government survey no longer in existence, but that he only used the 1866 survey in a general way and not for specific dimensions and did not use the field notes at all. The only point Mr. Casey testified that he could establish was based upon an old fence running north next to the school house which appeared on the 1866 plat. In fact, at the close of his testimony Mr. Casey had failed to state in even a general way how he determined any reference points for establishing his survey lines.

This testimony falls short of the requirements of a recent third district case for establishing a section line by reconstruction. In Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 403 N.E.2d 710, cited also by plaintiffs, the court stated:

“In the instant case the lines and corners of the quarter sections had become obliterated and no natural or artificial monuments could be found which by their very presence identified the boundary line, so surveyor Harmon resorted to field notes and plats of the original survey in order to locate the disputed division line. Such practice has long been approved by our Supreme Court.” Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 94, 403 N.E.2d 714.

In the instant case, surveyor Casey testified and did not rely on the field notes of an 1866 road plat, and did not attempt to use the original government survey. In Pliske v. Yuskis, the surveyor for the plaintiffs had twice searched the land records of Hancock County, had obtained a certified copy of the original government survey plat from the National Archives Record Service, found and relied upon the field notes from the original survey and had admitted into evidence five previous surveys upon which he relied and which supported his survey plat. The court stated:

“It was the testimony of Harmon that he considered and utilized all the information he could from these notes in his efforts to determine the exact center line separating the southwest quarter and the southeast quarter of Section 29.
# # #
It was Harmon’s testimony that based upon his research and the information contained in the various exhibits he was able to discover corner stones, even though this necessitated the excavating of a blacktop road with a back hoe.” (Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 92, 403 N.E.2d 714.)

The court then found as follows:

“We conclude that plaintiff’s exhibit No. 7, being made in reliance upon original field notes and government survey plat, is credible and reliable and the trial court committed no error in finding that this exhibit correctly established the location of the division line between the quarter sections owned by plaintiff and defendant.” Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 403 N.E.2d 714.

In Pliske the surveyor for plaintiffs did a great deal of research to establish his reference points, and the court found that he not only found but relied on all the information he could, including original field notes and government survey plat. In the instant case, Mr. Casey testified to just the opposite, that he did not rely on field notes of the 1866 road plat. Mr. Casey in fact never clearly established how he arrived at his reference points.

What is essential to this appeal is that the trial court apparently did not feel that the accuracy of the survey had been established, although its ruling appears to be based on alternate grounds; thus, plaintiffs have failed to meet their burden of proof on the first essential element of this case. Rhodes v. Sigler (1975), 27 Ill. App. 3d 1, 325 N.E.2d 381.

The undisputed facts in this case show that an actual boundary fence exists now and has existed in the same location as now for more than 25 years, and the implication is that it probably existed in this same place for 50 to 75 years.

From the testimony of plaintiffs’ two successive predecessors in title, we know that the fence has existed in the same place, since prior to 1955 when the one predecessor in title, Glen Tomlinson, actually built the east half of the fence himself, placing it on the old fence line, and that the two predecessors in title all acknowledged the fence as the boundary between the two subject tracts, treating it and acquiescing in it as the boundary. Also from the testimony we know that the defendant and his predecessors in title treated the fence as the boundary and utilized all the land adjacent to and north of the fence.

The Illinois Supreme Court has enunciated rules pertaining to boundary fence disputes which we believe are controlling in the factual situation involved in this case.

The central issue of this case, is, “must an established, recognized, and maintained boundary line between adjoining landowners be moved if it is discovered or alleged that said boundary line does not conform to the legal descriptions of the properties?”

Two leading Illinois Supreme Court cases have dealt with this issue:

“The adoption of a division line between the owners of adjoining lands may be implied from their acts and declarations and by acquiescence in respect thereto. After the recognition of such division line as the true boundary for the statutory period of limitation the parties and their privies are estopped from asserting that it is not the true line.” (Kandlik v. Hudek (1936), 365 Ill. 292, 299, 6 N.E.2d 196, 199.)

This rule is also followed in McLeod v. Lambdin (1961), 22 Ill. 2d 232, 174 N.E.2d 869.

In each of the two cases, some form of division fence had been erected by adjoining land owners along a line which they believed to be the boundary of their properties, and recognized as such by themselves and their successors in interest. Also, in each case the division fence was erected some distance from the true government survey line. It was not until after these fences had been in existence for 22 years, and recognized as the boundary, that any question arose.

Similarly, in the present case Glen Tomlinson, previous owner of the plaintiffs’ tract, erected the division fence in question on a line which he believed to be the boundary between his property and the defendant’s tract. In fact, Mr. Tomlinson testified he built the fence along the same line as a hedgerow which had been in existence for an unknown period of years. This fence was built in 1953.

For the next 20 years this fence was recognized as the boundary between the two tracts by defendant and his father, and the successors in interest to Mr. Tomlinson, including the plaintiffs. It was not until about 1974, approximately six years after he had purchased the tract, that plaintiffs questioned the boundary line between the two tracts. Up until this time, and indeed since this time, the defendant has farmed up to the fence in question on the basis that it is the true boundary line between the tracts,

These facts fall in line with the facts in the McLeod and Kandlik cases, and the case should be controlled by the rule there stated. In citing the Kandlik case with approval, the court in McLeod said, “if the rule in the Kandlik case were not followed practically every boundary line would be suspect and open to litigation.” (22 Ill. 2d 232, 237, 174 N.E.2d 869, 872.) Indeed, the same rationale for the holding in McLeod could be given to the present case.

“We believe that the many years during which the respective owners farmed up to the hedgerow and utilized it as a fence to contain their cattle fairly implies their agreement to establish and recognize the hedgerow as the boundary line. Even absent an agreement, plaintiff and his predecessors in title held undisturbed possession over to the hedgerow line for more than 20 years prior to Lamb din’s purchase and plaintiff has been in possession under claim of right at all times since.” McLeod v. Lambdin (1961), 22 Ill. 2d 232, 236, 174 N.E.2d 869, 871-72.

Defendant, in his answer to plaintiffs’ complaint, affirmatively stated that the fence in question had been built in approximately 1954, was treated as the division line, and that defendant exclusively used and occupied under claim of ownership all land lying north of said fence.

The requirements for adverse possession are that the possession be hostile or adverse; actual; visible, notorious and exclusive; continuous; and under claim of ownership. (Patient v. Stief (1977), 49 Ill. App. 3d 99, 363 N.E.2d 927.) Section 1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 1) provides that “no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such an action or make such entry first accrued, or within twenty years after he or those from, by, or under whom he claims, have acquired title or possession of the premises, except as now or hereafter provided in subsequent sections of this Act.”

In the present case the testimony shows, as stated, that the line fence between the plaintiffs’ property and the defendant’s property had been in existence for more than 20 years prior to the commencement of this action, and that during that period the defendant and his father farmed up to that fence now in question.

Plaintiffs’ attorney stated that adverse possession could not exist in this case as one can not establish adverse possession to public property. The basis for this argument is the existence of an 1866 survey which shows a proposed road approximately on this line, and a recently closed road running west to east, which ended approximately one-half mile from the plaintiff-defendant property line.

None of the witnesses’ testimony, which covered a period of time back to approximately 1920, nor any of the other evidence established that this road was ever opened as far as the line between the plaintiffs’ property and the defendant’s property, or that any fences or hedgerows were erected based on that road in any way.

Section 6 — 316 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 6 — 316), provides that “all township and district roads laid out as provided in this Division of this Code shall be opened within 2 years from the time of laying out the same. If the damages resulting from the establishing of such roads shall not be paid within 90 days from the time the money is in the hands of the treasurer of the road fund to pay the same, such new roads shall be deemed to be vacated.”

As stated, there is no evidence that this road was opened within two years of being surveyed, and therefore, no evidence that any land on plaintiffs’ property or defendant’s property lying next to the division fence in question was ever public property.

The 1861 Ill. Laws §91 [92], at 263, as passed by the 22d General Assembly, provided that all public roads shall be opened within five years or deemed vacated. The trial court determined that the road as platted was never opened. The only evidence which exists in the record that the road was open is the recollection of a township clerk that he walked the full length of the road in 1926 or 1927. The testimony of the clerk is ambiguous at best, and certainly the issue of whether the road was ever opened is one of fact which we believe need not be reevaluated unless it is against the manifest weight of the evidence.

The finding of the trial court that the township road was never opened is sustained. It follows that the road was vacated five years after the plat was filed, or in 1871, and since that time it would have been possible for defendant and his predecessors to perfect title by adverse possession.

For the foregoing reasons, the judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.