author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Ray Sanchez, Defendant-Appellant.
    (No. 71-80;
    Third District
    May 31, 1973.

      Walter E. Stradley, of Rock Island, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the Court:

This was a proceeding by indictment against the defendant Anthony Ray Sanchez, charging in four counts the crimes of Murder, Attempt Robbery and Involuntary Manslaughter. There was a jury trial. At the close of all the evidence the court directed a verdict on two counts but denied the motion for directed verdict as to one count of Murder and the counts for Involuntary Manslaughter. The jury returned a verdict of guilty of Involuntary Manslaughter. Defendant’s petition for probation was denied and following a waiver of a hearing in aggravation and mitigation the defendant was sentenced by the trial court of Rock Island County to a term of from 8 to 10 years.

During the early evening hours of August 18, 1970, the 15 year old defendant met with a small group of his friends in his home. The boys went to a nearby park where they played awhile. Later they met a man sitting on a bench in the park and one of the boys asked him for cigarettes. The defendant attempted to take them from the man’s pocket and the man pulled out a gun and said no one could have any cigarettes. An argument ensued. Defendant left the park with his friends, went to his home where he got a .32 cal. revolver from the basement. He put a bullet into the gun. Defendant claimed he got the gun from a neighbor. The neighbor, a defense witness, denied this.

The boys returned to the park with intent to “scare the dude”. On the way they ran into another boy who told them the man in the park was waiting for them with a pocketful of bullets. As a result, the boys decided not to go into the park. Later they met the same man who apologized for threatening defendant with a gun. The boys then went across the street and met Bob Herron, the deceased, and some of his friends. Defendant attempted to borrow money from Herron.

During this encounter the defendant pulled out the revolver and pointing it at a cat pulled the trigger 3-4 times but the gun did not fire. Defendant then pointed the gun at Clayton Veasey. He pulled the trigger four more times and still the gun did not fire. Defendant then asked one of his friends if he liked Bob Herron, to which the friend replied that he did not. Defendant then put the gun to Robert Herron’s head and told him that he would “give him three to run”, that he would give him a “sporting chance” and to “run”.

Herron started to turn, the defendant called him back and shot him in the eye, killing him. The victim was unarmed and the gun was a foot away from his head when it was fired. The defendant then ran from the scene, discarding the gun, on his way home. The weapon was never found.

Defendant claimed that because the gun was rusty he did not expect it to fire and in substance claimed the death was accidental.

On cross-examination the State’s Attorney asked defendant if the .32 revolver was the only gun he ever owned. The answer was, “Yeah, besides a cap gun”. Then:

“Q. Did you own a .25 caliber automatic, Tony?
A. No.
Q. Whose .25 caliber automatic was in the basement?
Objection by defense counsel and motion for mistrial.”

On rebuttal the State produced the testimony of Officer Hockenberry who testified that the defendant had told him that he owned a .25 automatic and that, “If those dudes from Davenport mess with me, I have a .25 automatic with nine shells and I will do them a deal”.

Defendant, citing only People v. Tranowski, 20 Ill. 2d 11, contends that the mention of the .25 automatic (which had been discovered in the basement of defendant’s home incident to a valid search for the weapon employed) was incompetent, prejudicial and denied defendant a fair trial.

Tranowski at page 16 states,

“It is a general rule that evidence that another or other crimes were committed by a defendant, wholly independent of and disconnected from the crime for which he is being tried is not admissible. (People v. Deal, 357 Ill. 634.) But a corollary of the rule is that evidence, relevant to the main issue, which serves to place a defendant in proximity to the time and place, aids or establishes identity, and tends to prove design, motive or knowledge, is admissible. [Emphasis supplied] * * * Resolution of the conflict between the rule and the corollary depends on whether the evidence of other crimes is so closely connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried.”

Here the defendant contended that he was unfamiliar with guns and therefore the discharge of the weapon was an unexpected accident. It thus became relevant to question him about his knowledge of other guns and proper to impeach his statement that he never owned another gun. The evidence was properly admitted.

Defendant further contends that the introduction of opinion evidence that the .32 revolver employed was a “working gun” was so prejudicial as to require a new trial.

Defendant had testified that he didn’t think the .32 would work and it wasn’t in working condition. On rebuttal the State called a working gunsmith of 20 years experience to testify. Objection was made as improper rebuttal and no proper foundation. After qualifying the expert there followed:

“Q. Taking a .32 caliber revolver, said revolver being a five shot revolver, said revolver having been shown to have clicked four times without going off, and clicked a fifth time, and going off, what would you say we have as far as that gun is concerned —a working or a — [Objection—no foundation.]
A. If the gun goes off, it has got to be working, it has to be. |
Q. If it was working, would you say the cylinder, in those fact situations was turning?
A. Yes.
Q. Assuming this gun contained a certain amount of rust. Would rust prevent the cylinder from turning?
A. No. |
Q. If this gun was so rusty that the cylinder wouldn’t turn, would you say you would be able to open it to put a bullet in it.
A. No.
Q. If this gun was — if a gun is rusty, does this increase the trigger pull?
A. Yes, it probably will.
Q. When I say ‘the trigger pull’ what do I mean by that?
A. To work the action.
Q. The amount of what?
A. The tension on the spring and trigger.”

Defendant argues that the clear intent of the above was to cause the jurors to understand that the gun in question was working and that defendant knew it was working.

The foregoing testimony could not have shown that defendant knew the gun would fire. It was relevant to rebut his contention that it was a nonworking weapon. The essence of the testimony established only that if tire gun fired it was a working weapon. This was a reasonable assumption agreed to later by defendant’s attorney. In fact one hardly need be an expert to know that if a gun fires in the usual manner it is working. If the matter is one upon which the jury is competent to determine the fact issue, the opinion of an expert is no special aid to the jury in determining the truth and is not admissible. (People v. Moretti, 6 Ill. 2d 494.) Before an expert can state his opinion about some device, machine or other instrumentality which is alleged to have had a part in the transaction which is the subject of the litigation, it is necessary to lay a proper foundation for his testimony by showing with reasonable certainty that the condition of the instrumentality was the same as it was at the time of the event in issue. (Jines v. Greyhound Corp. 33 Ill. 2d 83; Harris Furniture Co. v. Morse, 10 Ill. 2d 28.) Expert opinion is inadmissible if its factual foundation is nebulous. 31 Am. Jur. 2 Expert and Opinion Evidence, Sec. 36.

However, we are unable to find any prejudice to the defendant by the admission of this testimony. It is not the policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. Where as here it is clear from the record that the jury could not have reasonably found the defendant not guilty, errors in the admission of evidence do not require reversal. People v. Tranowski, 20 Ill. 2d 11, 17.

Defendant next contends that the sentence was excessive and that the court should have granted probation. The granting or refusing of an application for probation rests within the sound discretion of the trial court and such discretion is to be exercised primarily for tire benefit of society and only incidently for the benefit of the defendant. (People v. Molz, 415 Ill. 183.) The trial court was fully advised as to all matters which should be taken into consideration in exercising his discretion in granting or denying probation, especially as to all matters which the defendant desired to present and we are unable to find that his ruling was arbitrary in denying probation.

We do, however, find that the sentence was excessive and it clearly appears that the sentence constitutes a great departure from the fundamental law and its spirit and purpose. “The courts of this state have sought to adopt sentences in which a final adjudication has not been made to the general public policy expressed in amended or later applicable statutes where the ends of justice will be best subserved thereby”. People v. Rhinehart (1973), 11 Ill.App.3d 859. Under the new Unified Code of Corrections in a Class 3 felony the judge may not set a minimum sentence which is in excess of one-third of the maximum sentence actually imposed in that case. Accordingly the minimum sentence is modified and reduced to 3 years, 4 months, and the maximum sentence is to remain at 10 years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

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

       By the verdict of not guilty as to the murder count the jury must have disregarded an implication, if any, that defendant knew the gun was working.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SCOTT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard W. Walraven, Defendant-Appellant.
    (No. 72-128;
    Third District
    May 31, 1973.
    John L. Barton, of Marseilles, for appellant.
    Bernard L. Oltman, State’s Attorney, of Pekin, (Jay H. Janssen, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant Richard Walraven raises several issues in this appeal, but we first direct our attention to whether the admonition given by the trial court before it accepted defendant’s plea of guilty is adequate.

The defendant was indicted by the Tazewell County Grand Jury with two separate offenses committed on different occasions.

Each of the indictments returned against the defendant charge him with committing the crime of burglary. The defendant entered into plea bargaining negotiations with the State and pled guilty to both charges and was sentenced to concurrent terms of not less than 1 nor more than 10 years in the penitentiary for each offense.

In this appeal it is the defendant’s contention that the trial court failed to comply with Illinois Supreme Court Rule 402(a)(2) and (c) Ill. Rev. Stat. 1971, Ch. 110A, Sec. 402(a)(2), (c).

The record poses a serious question as to substantial compliance with Section (a)(2) of Rule 402, but this contention will not be discussed because the trial court’s failure to comply with Rule 402(c) requires reversal of defendant’s sentence of conviction and remandment to the trial court.

Chapter 110A, Section 402(c), provides:

“The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.”

The only discussion in the record which could possibly resemble determinations of the factual basis of the defendant’s pleas of guilty are the following:

“THE COURT: You have been charged with the crime of burglary, and also, theft. What was the value of the property which was involved here? Was it less than $150.00?
PROSECUTION: Yes, Sir.
COUNSEL FOR DEFENDANT: Yes, sir. It was, Your Honor.
# # #
THE COURT: Are you pleading guilty for any reason other than the fact that you actually did what you were charged with in the indictment?
DEFENDANT: No Sir.”

With regard to the defendant’s plea of guilty to the charge of an additional crime of burglary the following colloquy ensued:

“THE COURT: Are you pleading guilty for any reason other than the fact that you actually did what you were charged with in this indictment?
DEFENDANT: No Sir.”

It is impossible for us to distinguish these discussions from the one that occurred in the case of People v. Dye, 7 Ill.App.3d 805, 288 N.E.2d 537, which was as follows:

“COURT: Before I accept your plea of guilty, I want to advise you that this offense carries with it the possibility of a sentence from one year to ten years in the penitentiary. Knowing that, do you still say you are guilty as charged in the indictmentF’ (Emphasis added).
DEFENDANT: Yes.”

In Dye the reviewing court stated:

“The defendant’s response to the question amounts to nothing more than a statement of a legal conclusion that he is guilty of the crime, or a reaffirmation that he wishes to plead guilty. An examination of the record fails to reveal when and where the alleged theft occurred, and what was allegedly taken. Consequently, the record also fails to show any connection between acts committed by the defendant and the acts and intent required to constitute the offense of theft. People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533 (1972). There is no basis whatsoever for reasonably concluding that there is a factual basis for the plea of guilty.” People v. Dye, 7 Ill.App.3d 805, 288 N.E.2d 537.

We subscribe to the language used and the conclusion reached in the Dye case, for the same situation prevails in this case in that the record fails to show any connection between acts committed by the defendant and the acts and intent required to constitute the offense of burglary.

For the reasons stated the judgments of the trial court finding the defendant guilty of two crimes of burglary are reversed and this case is remanded to the circuit court of Tazewell County with directions that the defendant be allowed to plead anew.

Reversed and remanded with directions.

STOUDER and DIXON, JJ., concur.


text:
    Brent Glassey et al., Plaintiffs-Appellees, v. The County of Tazewell, Defendant-Appellant.
    (No. 72-328;
    Third District
    May 31, 1973.

      Richard Hayes, of Pekin, for appellant.
    Robert V. Clevenger, of Pekin, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This was an action for declaratory judgment requesting that defendant Tazewell County’s zoning ordinance be declared unconstitutional in its application to plaintiff’s property and requiring the issuance of necessary permits and licenses for the development and operation of a proposed mobile home park and attendant facilities. The Circuit Court of Tazewell County entered judgment in favor of plaintiffs and the defendant County has taken this appeal.

The plaintiffs, Brent Glassey and Bruno Gianessi entered into an option agreement for the purchase of 150 acres of land located about 2.7 miles south of Pekin in Tazewell County, beyond the boundaries of any municipality so that the County Zoning Ordinance governs its use. Under that ordinance the land was zoned agricultural. The surrounding area is agricultural and is sparsely populated with very few family dwellings. For many years a part of the land was the site of the old Pekin Airport. An elementary school is located about a quarter mile northeast of the north east corner of the property.

In 1969 the plaintiff applied for a special use permit for a mobile home park for an area of about 54.3 acres. A companion application for an adjoining 5.6 acres was to construct and operate a sewage treatment plant in conjunction with the mobile home park. Both areas are a part of the 150 acres. The Zoning Board of Appeals, after conducting a hearing referred the matter to the Zoning and Planning Committee of the County Board. A hearing was held by that Committee and both applications were recommended for approval for the issuance of a special use permit. That Committee made a finding that there is a definite need for additional mobile home living space in the County. The entire Board of Supervisors then, without a hearing, voted to deny the permits. Plaintiffs thereafter commenced the instant action.

At the hearing before the circuit court the above facts were developed in addition to other evidence. An expert appraiser testified that as currently zoned the property was at the least value it could be. The highest and best use would be some type of residential development including a mobile home park. The mobile home park would not adversely affect the value of surrounding property and would possibly enhance their value. This evidence was not rebutted.

The plans for the sewage treatment plant call for a modified activated sludge plant that would provide secondary treatment by a mechanical aerated system. The plans had met with approval of the State Sanitary Water Board but will now have to be finally approved by the Environmental Protection Agency.

The Tri-County Planning Commission, the official planning commission for Tazewell County recommend approval.

Further evidence showed a great need of trailer home space in the Pekin area.

The issue on appeal is whether the defendant’s ordinance was unconstitutional as applied to plaintiffs’ property or as was stated in Sinclair Pipe Line v. Richton Parle, 19 Ill.2d 370, 377, “[T]he ultimate legal determination that must be made in every case is whether the existing restrictions on the use of the land in question are arbitrary and unreasonable”.

In “determining whether the operation of any particular zoning ordinance or a provision thereof exceeds the police power or otherwise stated bears no substantial relation to the public health, safety, morals, and general welfare, there are a number of factors which must be applied to the facts in each particular case, all factors are important and no one factor is controlling. (La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40.)” And while there is a presumption as to the validity of a zoning ordinance, that presumption is overcome when it is shown there is no substantial relation to the general welfare. Schmitt v. Village of Skokie, 6 Ill.App.3d 177, 287 N.E.2d 202.

We shall discuss the evidence as it relates to the factors suggested in the La Salle Nat. Bank case and two additional items that are of importance in this case.

(1) The existing uses and zoning of nearby property:

The property is zoned agricultural as is the surrounding area. It is 2.7 miles south of Pekin and 1.3 miles north of the Village of South Pekin. On the north of the property is a railroad track and Lost Creek, to the east of the property is a rural road caUed Fifth Street and a railroad and on the south a gravel road. A considerable distance north of Lost Creek is a residence. Southeast there are two homes and there is one home directly south of the property. There will be shrubbery screening the area from neighboring lands and a proposed seventy-five foot parkway all the way around the proposed development where it might affect other land. The property is currently rented to a parachute club for $2400 a year. It would be difficult to find property that would interfere less with surrounding property uses.

(2) The extent to which property values are diminished hy the particular zoning restriction:

Unrebutted testimony was that present value of the 60 acres under consideration was $30,000, that for mobile home use the value would be $45,000 with development costs of $537,000 for a total of $582,000. On the income approach the expert estimated the net annual income at $63,-360 after full development. The highest and best use would include a mobile home park. The park would not adversely affect the value of surrounding property and might enhance their value.

(3) The extent to which the destruction of propeity values of plaintiff promotes the health, safety, morals or general welfare of the public:

Without factual basis there were fears expressed about schools, ability of fire equipment to negotiate the roads, possible odor from a lagoon and taxation. There was direct evidence that the proposed use would have no detrimental effect on the surrounding uses. All roads are to be 30 feet wide with provision for off-road parking at each site. There was expert testimony by the Director of Environmental Health for the Tazewell County Health Department, a registered sanitarian and also by an engineer that there would be no odor from the sewage treatment plant if properly operated according to state regulations. The fears that the development might cause an increase in local government costs are not a justifiable basis for denying a proper use. First Nat. Bank of Skokie v. Village of Skokie, 85 Ill.App.2d 326; Lakeland Bluff, Inc. v. County of Will, 114 Ill.App.2d 267.

Whether the additional impact upon school population is a factor to be considered was also discussed in the Skokie case where on page 339 the court said, ° * whüe the school situation might be a factor to be considered in this kind of case, it cannot be conclusive. We agree, and note that additional burdens on responsible governmental bodies may not properly justify otherwise unreasonable, arbitrary, and discriminatory restrictions on the use of private property”.

(4) The relative gain to the public as compared to the hardship imposed upon the individual property owner:

The hardship to the plaintiffs is apparent. The property is worth about $500 per acre as now used and might be worth $9700 per acre when developed as a mobile home park. There was little or no showing of any gain to the public.

(5) The suitability of the subject property for the zoned purposes:

The law does not require that the subject property be totally unsuitable for the purpose originally classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare. (La Salle Nat. Bank v. County of Cook, 12 Ill. 40, 48.) The fact that the entire 150 acres which include the subject property is bringing in as gross rental income only $2400 per year ($16 per acre) would indicate that it is not highly suitable for agricultural purposes whereas evidence shows the property to be highly suitable for a mobile home park.

(6) The length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property.

The property for many years was the old Pekin Airport and is now leased to a parachute club. This factor is one particularly applied to residential lots, cf Krom v. City of Elmhurst, 8 Ill.2d 104, 111-113; Chicago Title and Trust Co. v. Village of Franklin Park 4 Ill.2d 304; Petropoulus v. City of Chicago, 5 Ill.2d 270, 274.

(7) Compatability with the overall zoning plan (orderly land development) :

The Tri-County Planning Commission is the official planning agency for Tazewell County. In each case requesting a special use, this agency is required to make a report of its findings and recommendations. It recommends approval of the special use in the instant case.

(8) Community need for the proposed use:

The Director of Environmental Health for the county testified that he had made a current study. There were no vacancies in the Pekin area. Other witnesses testified that there was a need. The Zoning and Planning Committee of the County Board made an express finding that there is a definite need for trailer space.

We are satisfied that the trial court was justified in its conclusions which Were not against the manifest weight of the evidence. The judgment of the Circuit Court of Tazewell County will therefore be affirmed.

Affirmed.

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


author: Mr. JUSTICE STOUDER

text:
    Gary Nelson, Plaintiff-Appellant, v. The People of the State of Illinois, Defendant-Appellee.
    (No. 72-53;
    Third District
    May 31, 1973.
    James R. Wurbs, of Rock Island, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Relator-Appellant, Gary Nelson, was arrested pursuant to a Governor’s Extradition Warrant which alleged that relator had committed the offense of theft in Texas on January 18, 1971. (Ill. Rev. Stat, 1969, ch. 60, sec. 24.) In accord with chapter 60, section 27, Ill. Rev. Stat., 1969, relator filed a petition for writ of habeas corpus. After the hearing, the Circuit Court of Rock Island County denied relator's application for relief and this appeal follows.

At the hearing the respondent introduced the Governor’s Warrant as his authority for holding relator. Thereafter relator testified that he was not in the demanding state of Texas on January 18, 1971, but on the contrary was in Davenport, Iowa, the place of his residence on that date. Six other witnesses testified in relator’s behalf and respondent presented no evidence in rebuttal.

Roth parties are in general agreement concerning the general rules applicable to this type of proceeding, but they differ as to how such rules should be applied to the facts. An extradition warrant issued by the Governor of Illinois is properly admitted in evidence (People v. Lynch, 16 Ill. 2d 380, 158 N.E.2d 60), and such a warrant, reciting the essential facts, affords a prima facie case that an accused is a fugitive from justice, thereby imposing upon him the burden of proving that his detention is illegal. (People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 157 N.E. 2d 417.) To sustain a claim of illegal detention, the burden of proof is upon the relator to show that he is not substantially charged with an offense under the laws of the demanding state, that he is not the person charged with the offense in the demanding state or that he is not a fugitive from justice. (People ex rel. Douglas v. Woods, 39 Ill. 2d 381, 235 N.E.2d 601.) In People ex rel. Garner v. Clutts, 20 Ill. 2d 447, 170 N.E. 2d 538, the court approved as a rule relating to the burden of proof required of a relator that “* * * one detained under a fugitive warrant may be judicially discharged only when it is so conclusively proved that no question can be made that the person was not in the demanding State when the crime is said to have been committed, * ”

According to the relator, the evidence which he presented conclusively shows that he was not in the demanding state on January 18, 1971, and there is neither contrary evidence nor evidence from which contrary inferences may be drawn. In such cases as People ex rel. Garner v. Clutts, 20 Ill. 2d 447, 170 N.E.2d 538, the rule is also announced that where the evidence is merely contradictory, the relator has failed to sustain his burden that the detention is illegal. It is this rule, the respondent asserts, which is applicable in the instant case.

The relator testified that he was a resident of Davenport, Iowa, that he had been such a resident for twenty-five years and unequivocally avowed that he had been in Davenport for the whole day of January 18, 1971. Five of the other six witnesses testified that each saw the relator at different times on January 18, and the sixth witness testified to relator’s residency in Davenport for many years. Included in such supporting testimony was that of a service station operator who sold relator a battery on January 18, and a sales slip for that same date was presented. None of the witnesses, including the relator, was cross-examined by the respondent and no rebuttal evidence was presented by the respondent.

Since the respondent introduced no evidence other than the extradition warrant and did not refute the credibility of the testimony offered by the relator, we conclude that the respondent believed the extradition warrant itself was sufficient to create contradictory factual issues. We do not believe this position is tenable, since if true, the effect would be to give the warrant a conclusive presumption since in all cases the evidence would be merely contradictory. We do not believe the cases cited by the respondent support such proposition since in all of such cases except People ex rel. Pusch v. Mulcahy, 392 Ill. 209, 64 N.E. 2d 458, the respondent presented rebuttal testimony contradicting the testimony of the relator and his witnesses. In the Mulcahy case no rebuttal evidence appears to have been presented, and although the court suggests the evidence was contradictory, the factual basis for such a conclusion is not clear. In one of the more recent cases (People ex rel. Garner v. Clutts, 20 Ill. 2d 447, 170 N.E.2d 538), the relators evidence concerning his presence in Illinois at the time of the offense charged in North Carolina was somewhat similar to the evidence presented in the instant case. However, the court in holding that the relator had failed to sustain his burden of proof refers at some length to the testimony offered in rebuttal by the respondent, namely the testimony of two witnesses from North Carolina who testified seeing the relator near the scene of the offense on the day it was committed. Absent such rebutting testimony in the instant case, we believe that a result contrary to that reached in the Clutts case is required. (See also People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 157 N.E.2d 417.) We believe the relator sustained his burden of proof and the evidence shows beyond a reasonable doubt that he was not a fugitive from justice from the demanding , state.

For the foregoing reasons, we believe the Circuit Court of Rock Island County erred in denying relator’s petition and accordingly, the judgment of said Court is reversed and remanded with directions that the relief sought by relator be granted.

Reversed and remanded with directions.

ALLOY, P. J., and DIXON, J., concur.


author: PRESIDING JUSTICE JOHNSON

text:
      In re MARRIAGE OF JANINA LIGAS, Petitioner-Appellee, and FRANK LIGAS, Respondent-Appellant.
    First District (4th Division)
    Nos. 81—1536, 81—3081 cons.
    Opinion filed October 28, 1982.

      Joseph H. Becker, Norman Becker, and Selwyn Blum, all of Chicago (Gary E. Dienstag, of Springer, Casey, Haas, Dienstag & Silverman, of counsel), for appellant.
    Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner & Associates, and Rinella & Rinella, both of Chicago, for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Frank Ligas, and petitioner, Janina Ligas, were granted a dissolution of their marriage by the circuit court of Cook County. The court divided the material property between the parties and awarded Janina Ligas custody of 'the children with reasonable visitation by respondent. The court also awarded petitioner attorney fees. Respondent appeals from that judgment.

The issues raised for review are (1) whether the trial court erred in its valuation, apportionment and disposition of marital property; (2) whether the court erred in its determination of respondent’s net income and erroneously attributed to him $27,000 in a savings account held jointly with his mother; and (3) whether the trial court erred in awarding attorney fees to petitioner.

We affirm.

The parties were married on November 23, 1967, in Poland. There were two children born of the marriage: a boy and girl, born August 18, 1971, and May 17, 1969, respectively. Respondent came to the United States with petitioner in January 1968.

Both parties worked throughout the marriage. From 1972 until 1980, respondent worked as a machinist earning approximately $280 per week after taxes. Petitioner worked in various factory jobs earning approximately $6,000 per year. In 1972, the parties purchased land in Marengo, Illinois, for $4,500, and in 1973, they purchased a two-flat apartment building located at 4372 North Neva in Norridge, Illinois, for $80,000.

There was conflicting testimony but it appears that the down payment on the apartment building was either $40,000 or $41,500. Either $22,000 or $28,000 of the down payment was from the joint savings of the parties and the remainder was borrowed from relatives. Respondent testified that he still owes approximately $10,000 of the debt to his relatives, but that petitioner’s relatives have been repaid.

In 1977, respondent used joint funds to purchase a tavern business called the Gospoda. The business was incorporated and the stock is owned equally by petitioner and respondent. Between May 1977 and March 1980, respondent worked as a full-time machinist while also operating the tavern. There was testimony that petitioner worked in the tavern occasionally for about one year. In 1980, respondent quit his job as a machinist in order to work in the tavern full time.

The tavern’s annual gross receipts were approximately $60,000 to $70,000 by respondent’s testimony. There is no corporate checking account. Respondent writes down the daily totals in a book which he gives to his bookkeeper. Respondent has no employees at the tavern, but occasionally friends or relatives assist him. Respondent rents the entire building in which the tavern is located for $648 per month. He and his parents live above the tavern and he subleases the third floor for approximately $100 per month.

Susan Docal, an accountant, testified for petitioner that in her opinion the tavern business is worth $30,000 to $35,000. Alvin Baresch, respondent’s accountant, testified that the tavern is worth $15,000. The gross receipts for the year 1978 were approximately $66,000, and for 1979 and 1980 they were $59,000 each year.

There was no expert appraisal of the apartment building owned by the parties. Respondent contended the building was worth $160,000 to $170,000, while petitioner assessed the value at $100,000 to $125,000. Petitioner and the two children live in the apartment building. The second floor is rented for $280 per month and the basement is rented for $175 per month. The monthly mortgage payment for the building is $471 including taxes.

There was voluminous testimony regarding various bank accounts held by petitioner and respondent during their marriage. Respondent and his mother testified that they also have had joint savings accounts over the years. The mother testified that she earns $350 net every two weeks and almost all of it is deposited into the savings accounts held jointly with respondent. She further testified that respondent pays the rent and gives her money for the upkeep of the home.

After hearing all the testimony, the findings made by the trial court in pertinent part are: (1) the value of- the lot in Marengo was $24,000; (2) the value of the tavern was $35,000 and its net profits for 1980 were $34,612; (3) the value of the apartment building was approximately $110,000 and its current mortgage debt was $26,260; (4) respondent is the owner of all the money in two savings accounts held jointly with his mother, amounting to $27,000; and (5) respondent’s net income was $35,000.

The court ordered respondent to pay $135 per week child support. Respondent was awarded the tavern business, the lot in Marengo, Illinois, as well as the $27,000 held in the joint savings accounts with his mother. Petitioner was awarded the apartment building and all the furniture as well as all bank accounts in her name. Respondent remained responsible for repaying the $10,000 owed to his relatives for the down payment on the apartment building. Respondent was also ordered to pay petitioner’s attorney fees of $2,250.

Shortly after respondent filed a notice of appeal, petitioner filed a motion seeking prospective attorney fees to defend the appeal. On November 17, 1981, the trial court granted petitioner’s motion and awarded $2,000 in prospective attorney fees to defend the appeal. Respondent filed notice of appeal from that order also. Both appeals have been properly consolidated before this court.

Respondent argues that the trial court erred in its valuation, apportionment and disposition of the marital property, as well as the awarding of child support. Respondent states that there was no evidence whatsoever as to the value of the marital property, especially the apartment building which was the major asset of the parties. Therefore, the trial court could not have made an award in just proportions. We reject this argument.

There was lengthy testimony as to the individual purchase price of the tavern, the apartment building and the land in Marengo, Illinois. Additionally, evidence of the following was presented: (1) the net/gross income of both parties; (2) the net/gross income generated by the tavern and the apartment building; (3) the living expenses of the parties; (4) the cost of operating the tavern and the apartment building; (5) the earning potential of the parties; (6) the resale value of the tavern; and (7) the mortgage debt owed on the apartment building.

The standards for the division of property as set forth in section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503) provides in pertinent part:

“(c) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s non-marital property to that spouse. It shall also divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) contribution or dissipation of each party in the acquisition, preservation or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
* * *
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
* * *
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity for each spouse for future acquisition of capital assets and income.”

The touchstone of proper apportionment is whether a direct distribution is equitable in nature. The trial court is not required by the statute to divide the property with mathematical equality. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1132, 398 N.E.2d 126, 132.) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 458, 426 N.E.2d 1087, 1091.

We find no abuse of discretion in the instant case. The trial court had ample basis for its division of the property. Merely because a party is unhappy with the disposition does not mean that the disposition is unfair. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1133.) It should be noted that the court order specifically said that the petitioner was awarded the apartment building in lieu of permanent maintenance, and the order barred her from seeking maintenance in the future.

Similarly, we find no abuse of discretion in the amount of child support awarded petitioner. The court was well aware of the expenses and liabilities of the parties and of the available resources. In fact, the court’s ruling reflects a decrease from $170 per week under the temporary child support order to $135 per week in its final order. Before ruling, the court commented that it had analyzed the child support issue and had resolved it in a manner that he thought “satisfactory.” The court had before it all the information necessary to make a just determination. The record reflects that the trial court based its decision on the totality of circumstances.

We hold, therefore, that there was sufficient evidence from which the trial court could make an approximate valuation of the marital property and there was ample basis for the child support award.

Respondent next contends that it was error for the trial court to award him $27,000 held in joint accounts with his mother because he claims that all or some of the money belongs to his mother. We disagree. The trial court heard testimony regarding salaries of the parties as well as respondent’s mother, financial resources, length of employment, expenses of the parties and many other factors. The court stated in its findings: “[Ejvidence presented by the respondent and his mother as to the source of the funds now on deposit in the joint savings account [sic] in the names of the respondent and his mother is not credible and rejects said testimony.”

In a bench trial, the credibility of the witnesses and the weight to be accorded their testimony are to be determined by the trier of fact. (Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 889, 365 N.E.2d 433, 441.) Unless manifestly against the weight of the evidence, the findings of the trier of fact will not be disturbed. (Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 889.) We cannot say that the trial court’s finding regarding the $27,000 in the joint bank accounts was manifestly against the weight of the evidence. We hold, therefore, that no error was committed in apportioning and awarding the $27,000 to respondent.

Respondent’s final contention is that the trial court erred in awarding attorney fees to petitioner. The trial court entered two separate orders for attorney fees: (1) $2,250 (approximately 56% of the total) to be paid to petitioner’s attorney for representation in the dissolution proceedings; and (2) $2,000 prospective attorney fees to defend the appeal taken by respondent. Respondent argues that the $2,250 awarded petitioner’s attorney is excessive since petitioner has received an asset worth $94,000. We disagree.

The granting of fees in a divorce case is proper when there is a showing of the financial inability of one party to pay the fees and the ability of the other to do so. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1093, 412 N.E.2d 1336, 1348.) However, financial inability is not equated with destitution. Rather, it is sufficient to support the award of fees that the party seeking the fees would be stripped of his or her financial resources if required to pay. Christian v. Christian (1979), 69 Ill. App. 3d 450, 458, 387 N.E.2d 1254, 1260.

In the instant case, the trial court determined that petitioner’s income was approximately $100 per week and that respondent’s net income was approximately $35,000 per year. Contrary to respondent’s argument, petitioner is not required to sell the apartment building awarded her in order to pay her attorney fees. See Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254.

In determining whether the amount of fees awarded is reasonable, the factors to be considered are as follows: “(1) the skill and standing of the attorneys employed; (2) the nature of the controversy, and the novelty and difficulty of the questions at issue; (3) the amount and importance of the subject matter, especially from a family law standpoint; (4) the degree of responsibility involved in the management of the case; (5) the time and labor required; (6) the usual and customary charge in the community; and (7) the benefits resulting to the client.” In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1093, 412 N.E.2d 1336, 1348.

The trial court was aware of these factors and made its determination based on the totality of circumstances. We find no abuse of discretion and will not disturb the trial court’s ruling.

The second part of respondent’s objection to the award of attorney fees to petitioner concerns the award of prospective attorney fees to defend this appeal. It should be noted that the trial court held a hearing before ruling on petitioner’s motion for prospective attorney fees. The record of that hearing was not presented to this court on appeal.

Respondent argues that the trial court had no authority to award prospective attorney fees to defend this appeal and cites the following cases in support of his position: In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 420 N.E.2d 796, In re Marriage of Wright (1981), 92 Ill. 3d 708, 415 N.E.2d 1196, vacated, (1982), 84 Ill. 2d 498, 434 N.E.2d 293, Sherman v. Sherman (1979), 74 Ill. App. 3d 451, 393 N.E.2d 67, and Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.

However, another line of cases holds the opposite view. (In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087; In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598; In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 408 N.E.2d 1021.) In In re Marriage of Giammerino, the court held that the award of prospective attorney fees is merely collateral to the appeal and involves a matter independent of any question raised by the appeal. (In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1061.) The trial court has jurisdiction to hear matters independent of and distinct from issues involved in the appeal. In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1060.

We believe the reasoning of the court in Giammerino is applicable here. The petitioner filed a new petition for prospective attorney fees, and a hearing was held on that issue. Under the reasoning of Giammerino, this was an independent issue and merely collateral to the divorce proceedings which had just been concluded. As the court in the Giammerino cáse pointed out, although there is nothing inherently improper in awarding prospective attorney fees, such awards should be made cautiously. Here, the petitioner’s financial resources were limited, while respondent was in a financial position to pay.

We hold, therefore, that the trial court did not err nor abuse its discretion in awarding petitioner prospective attorney fees.

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

Affirmed.

LINN and ROMITI, JJ., concur.


author: JUSTICE LORENZ

text:
    TEODORO TORRES et al., Plaintiffs-Appellants, v. LORENZO FIOL, JR., Defendant-Appellee.
    First District (5th Division)
    No. 81—2099
    Opinion filed October 29, 1982.
    Leo M. Bleiman, P.C., of Chicago (Joel S. Ostrow, of counsel), for appellants.
    No appearance for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal from a dismissal of that portion of their amended complaint seeking damages against defendant, Lorenzo Fiol, Jr., a nonattorney, for his alleged practice of law involving a business transaction. On appeal plaintiffs contend that the trial court erred in concluding that in this State an action for compensatory damages is not cognizable for the negligent practice of law by a nonattorney. Defendant has not filed a brief, but we shall consider the merits of plaintiffs’ position. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The two-count amended complaint recited that plaintiffs owned a certain parcel of real estate and managed a grocery and liquor store situated thereon. In 1979 they agreed to lease the store to Octavio Serrano, who assumed certain contractual obligations to the mortgage holder. Plaintiffs alleged that they contacted defendant, who held himself out to the public for the purpose of rendering legal services, to prepare the necessary documents for the transaction. Plaintiffs claimed that defendant rendered a legal opinion and advice on the transaction and also prepared the documents for the transaction, although they averred he performed the latter in an improper and careless manner.

The parties then filed memorandums of law following defendant’s motion to dismiss the complaint. The trial court, citing Rathke v. Lidisky (1978), 59 Ill. App. 3d 560, 375 N.E.2d 871, and section 1 of “An Act to revise the law in relation to attorneys and counselors” (Ill. Rev. Stat. 1979, ch. 13, par. 1), held that no private cause of action for damages for the unauthorized practice of law is recognized in Illinois.

In Rathke a real estate buyer sought damages against several realtors for their unauthorized practice of law when one or more allegedly inserted a provision into a printed sales contract. The appellate court opinion recited that plaintiff had not alleged that defendants were negligent or that they had represented themselves as attorneys. Rather plaintiff’s claim was predicated upon section 1 of “An Act to revise the law in relation to attorneys and counselors” dealing with the unauthorized practice of law, and plaintiff apparently asserted that a mere violation of this statute gave rise to a cause of action for damages. The court held that this statute did not permit a claim for damages.

The statute in question provides a contempt sanction against a person for the unauthorized practice of law. In addition, the statute recites:

“The provisions of this Act shall be in addition to other remedies permitted by law and shall not be construed to deprive courts of this State of their inherent right to punish for contempt or to restrain the unauthorized practice of law.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 13, par. 1.)

The underscored language of the statute plainly evidences a legislative intent not to circumscribe other theories of recovery against a nonattomey who is. retained to perform legal duties and who then mishandles the matter. We therefore conclude that the statute and Rathke, which interpreted that provision, do not preclude this action.

While not extensive there appear several reported decisions allowing for the recovery against a nonattorney for the unauthorized and negligent practice of law. In Biakanja v. Irving (1958), 49 Cal. 2d 647, 320 P.2d 16, a nonattorney was charged with improperly preparing a will. The court commented that “such conduct should be discouraged and not protected by immunity from civil liability, as would be the case if plaintiff, the only person who suffered a loss, were denied a right of action.” (49 Cal. 2d 647, 651, 320 P.2d 16, 19.) Our supreme court in Pelham v. Griesheimer (1982), 92 Ill. 2d 13, rejected Biakanja insofar as it allowed a third party to seek recovery against an attorney for alleged malpractice. However, Pelham is not related to the issue presented in this case.

Similar to the Biakanja case is Latson v. Eaton (Okla. 1959), 341 P.2d 247, where a nonattomey was held liable for the preparation of legal documents. Further, in Mattieligh v. Poe (1960), 57 Wash. 2d 203, 356 P.2d 328, the court remarked that the undertaking involving the practice of law by a real estate broker, who was not an attorney, may render him liable if the work is negligently performed. See also Wright v. Langdon (Ark. 1981), 623 S.W.2d 823.

Because of the above authorities and the lack of contrary precedent in this State we conclude that plaintiffs are not prevented from proceeding against defendant upon a negligence theory for his alleged improper activity. The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

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


author: PRESIDING JUSTICE GREEN

text:
    GULF TRANSPORT, INC., Plaintiff-Appellant, v. ALAN J. DIXON, Defendant-Appellee.
    Fourth District
    No. 4—82—0175
    Opinion filed November 4, 1982.
    Rehearing denied December 6, 1982.

      Gillespie, Cadigan & Gillespie, of Springfield (Patrick J. Cadigan, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the-court:

Plaintiff, Gulf Transport, Inc., appeals a judgment of the circuit court of Sangamon County entered March 1, 1981, affirming an administrative review, a decision of defendant, the Secretary of State, levying an assessment for additional registration fees for the licensing of buses operated by plaintiff in Illinois for the years 1976, 1977 and 1978 in the total sum of $44,567.87, including interest and allowed auditor’s expenses.

Plaintiff does not dispute that regulations enacted by defendant and reciprocal agreements entered into by defendant with other States purport to justify the assessment. Rather, plaintiff asserts the foregoing are void as to it because they are beyond the power granted to defendant by the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 1 — 100 et seq.). Plaintiff also asserts that the assessment places an undue burden on interstate commerce and that defendant is estopped from making the assessment.

Plaintiff is a nonresident corporation operating a fleet of buses and based in the State of Mississippi. For the years in question, plaintiff, in registering its buses with defendant, paid defendant fees based upon the full amount that would be required to register its entire fleet in this State reduced by a factor determined by the ratio of miles driven in the State to all of the miles driven. Defendant then issued to plaintiff the number of license plates which, if paid for at the full statutory rate, it would have been entitled to receive for the amount of fees actually paid. Certain decals were furnished in an amount equal to the number of remaining vehicles in plaintiff’s fleet. The disputed assessment arises because buses upon which plaintiff had placed decals and not license plates were used by it to make charter trips for which the buses were driven from a place of keeping in Missouri to places in Illinois where they took on passengers, carried them to various places all within Illinois, returned the passengers to their place of departure in Illinois, and returned to Missouri. All but two of the buses made only one such trip per year, and none made more than two such trips in any year. By the terms of section 3— 402(A) of the Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 3 — 402(A)) these movements were “intrastate commerce.” That section includes within the definition of that phrase “any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.” That section defines “interstate commerce” as transportation between States or passing through more than one State “and which is not ‘intrastate.’ ”

Plaintiff contends that under sections 3 — 402.1 and 3 — 402(B) of the Code (Ill. Rev. Stat. 1979, ch. 951/2, pars. 3 — 402.1, 3 — 402(B)) it was entitled to make these trips without incurring additional fee liability. Defendant denies that the above sections give plaintiff that right and asserts plaintiff was required to pay such fees for the intrastate trips of the buses in question that it would have been required to pay as a domestic carrier without the aid of any proportionment of Illinois miles to miles driven in other States. Defendant relies on section 3 — 402(B)(1) of the Act which states in part:

“Every nonresident, including any foreign corporation carrying on business within this State and owning and regularly operating in such business any motor vehicle, trailer or semitrailer within this State in intrastate commerce, shall be required to register each such vehicle and pay the same fees therefor as is required with reference to like vehicles owned by residents of this State.” (Ill. Rev. Stat. 1979, ch. 951/2, par. 3— 402(B)(1).)

The parties do not dispute that if defendant is correct, the assessment was properly computed.

Defendant maintains that section 3 — 402(B)(2)(c) and (d) was applicable to the 1976 assessment and section 3 — 402(B)(3) was applicable to the 1977 and 1978 assessments. It asserts section 3 — 402.1 applies only to fleets having a “base jurisdiction” in this State and is, therefore, not applicable to plaintiff. “Base jurisdiction” is defined by section 3 — 400 of the Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 3 — 400) as “where the registrant has an established place of business, where operational records of the fleet are maintained and where mileage is accrued by the fleet.” Special provision is made for an entity having several bases of jurisdiction when it has several fleets. The parties agree plaintiff has no “base jurisdiction” in Illinois.

Section 3 — 402.1 is entitled “Proportional registration.” It begins by saying that “[a]ny owner or rental owner engaged in operating a fleet of apportionable vehicles in this state and one or more other States may, in lieu of registration” under other provisions of the Code, register the vehicles under that section, obtaining an apportionment factor based upon the relationship of miles driven in Illinois in the preceding year to total miles driven in that year, and obtain proper registration for each vehicle in the fleet by paying a fee based upon the full amount that would otherwise be required to register the fleet reduced by multiplying that sum by the apportionment factor. The section further provides that upon payment of the fees, the Secretary “shall, when this state is the base jurisdiction, issue” to the owner appropriate evidence of registration. The section then states: “Vehicles registered under the provision of this section shall be considered fully licensed and properly registered in Illinois for any type of movement or operation.”

Plaintiff takes the position that it is entitled to licensing for all of its fleet for any “type of movement or operation” including one statutorily classified as “intrastate” because the section speaks of applying to “[a]ny owner” operating a fleet in this and other States and plaintiff meets that requirement. Defendant responds that the section refers to issuance of evidence of registration only to fleets having a “base jurisdiction” here and the grant of operating authority set forth in the section is limited to vehicles registered under the provisions of the section. The section is obviously, ambiguous. Because of the interpretation given it by the Secretary over a period of time, we hold the section to be limited to fleets having a “base jurisdiction” in Illinois. (Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 348 N.E.2d 161.) The section does not apply to plaintiff.

The method of registration used by plaintiff for the year 1976 does appear to be that provided for in section 3 — 402(B)(2)(c). Section 3 — 402(B) is entitled “Reciprocity.” Section 3 — 402(B)(1) concerns a type of vehicle registration based upon what has been called “residence reciprocity” (Ill. Ann. Stat., ch. 95^2, par. 3 — 402, Source Comment, at 166 (Smith-Hurd 1971)) and appears not to be applicable here because it does not involve payment of fees in this State but arises from a certificate given by the Secretary. Section 3 — 402(B)(2), on the other hand refers to registration of a fleet on a pro rata basis among the States. This type of registration has been said to be based on apportionment reciprocity. (Ill. Ann. Stat., ch. 95V2, par. 3 — 402, Source Comment, at 167 (Smith-Hurd 1971).) Section 3 — 402(B)(2)(c) speaks of the right to operate a fleet interstate without other registration if the fleet has been registered with the Secretary in accordance with an agreement concurred in by him and based on factors stated in the disjunctive which include those actually applied here for the year 1976. Section 3 — 402(B)(2) makes no mention of operations in intrastate commerce by vehicles registered thereunder. Thus plaintiff gained no rights under this section to engage in intrastate commerce without payment of further license fees and rules which prohibited it from doing so were not beyond the power of the Secretary. The Secretary could properly make an assessment for a license for each bus which operated, in the manner shown, in Illinois in 1976 without a valid registration plate on the bus. The 1976 assessment was not contrary to statutory mandate.

The evidence showed a uniform reciprocal agreement which had been entered into by the Secretary at such time as to have been in force for plaintiff’s licensing for 1977 and 1978. The Secretary maintains plaintiff’s payment of fees for those years was made under this agreement and the agreement was authorized by section 3 — 402(B)(3) of the Act. Section 3 — 402 (B)(3)(c) provides for the apportionment of fleets for licensing purposes based upon many of the same factors as set forth in section 3 — 402(B)(2)(c) and also sets forth the power and duty of the Secretary concerning these agreements in much more detail than does section 3 — 402(B)(2)(c). Because of the foregoing we agree that the Secretary purported to act under section 3 — 402(b)(3) in entering into the agreement.

Section 73 of the agreement provided in part: “[t]he reciprocity granted pursuant to this article shall permit the interstate operation of a commercial vehicle and intrastate operation which is incidental to a trip of such vehicle involving interstate commerce.” (Emphasis added.) Rules of the Secretary seemed to be in conformity with the agreement when they provided that, where, as here, a commercial vehicle is driven in Illinois as part of an apportioned fleet but without Illinois license plates on the vehicle, it can operate in any of the following intrastate movements but no combination thereof:

“(a) Interstate movements in the normal course of operations and such intrastate cargo or freight on such unit may not constitute more than 40% of the entire cargo or freight of the vehicle conducting such movement;
(b) All of the cargo or freight on the vehicle consists of cargo or freight which has an origin or ultimate destination outside of Illinois;
(c) Cargo or freight may be added in Illinois on a vehicle which was brought into Illinois for delivery to another point in Illinois or beyond provided that such carrier retains 60% of his interstate cargo on the vehicle at the time the freight is picked up and such carrier is limited to only one intrastate movement on said vehicle.”

The concept of both the agreement and the rules is that intrastate movements may be made by vehicles without license plates issued by this State under certain circumstances when the intrastate aspect of the movement is incidental to the interstate aspect of the same movement. Plaintiff maintains these provisions are inconsistent with the provisions of section 3 — 402(B)(3)(d), which state:

“Such agreements or arrangements shall also provide that. vehicles being operated in intrastate commerce in Illinois shall comply with the registration and licensing laws of this State, except that vehicles which are part of an apportioned fleet may conduct an intrastate operation incidental to their interstate operations.”

Plaintiff maintains that by using the words “may conduct an intrastate operation incidental to their interstate operations” (emphasis added), the legislation focuses not upon the intrastate aspect of a movement being incidental to the interstate aspect of the movement, as to the agreement and rules, but focuses upon a particular intrastate operation being incidental to the interstate operations (plural) of the fleet. Thus, under plaintiff’s theory, the legislation would require the agreement to permit plaintiff to have made the trip here without further assessment because these trips were clearly incidental to the total interstate operations of plaintiff in Illinois.

The legislature could have been more precise and a substantial argument supports plaintiff’s interpretation. However, once again, we defer the interpretation given by the Secretary over a period of time and construe the statute in the manner the Secretary has. (Adams.) We hold the provisions of the agreement and rule to be valid and determine that plaintiff’s assessments for the years 1977 and 1978 were not contra to the legislative mandate to the Secretary.

In considering plaintiff’s argument that the assessment imposed against it denied it of due process and was a burden on interstate commerce, we must recognize that the statutory distinction between commerce which is “interstate” and that which is “intrastate” is riot controlling. Here, even though the passengers who rode the buses for which the assessment was levied both entered the buses and were discharged from them in Illinois without having left the State, the operation of the buses was in interstate commerce. (See Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076.) We must also recognize that we are not dealing with an assessment against plaintiff for isolated use of vehicles for charter trips in Illinois but an assessment for additional fees to be charged pursuant to a complicated scheme for taxing plaintiff for the use of Illinois roads. An essential element of the scheme for each of the years was an arrangement whereby the total miles driven in Illinois bore heavily on the total amount of fees charged.

When a State imposes a tax upon engaging in activity which is in interstate commerce, the tax violates the due process rights of the entity engaging in the activity and places an undue burden on interstate commerce if there is not a reasonable relationship between the tax imposed and the benefits conferred. (Evansville-Vanderburgh Airport Authority District v. Delta Airlines (1972), 405 U.S. 707, 31 L. Ed. 2d 620, 92 S. Ct. 1349; Wisconsin v. J. C. Penney Co. (1940), 311 U.S. 435, 85 L. Ed. 267, 61 S. Ct. 246.) Plaintiff points out that in each of the three years in question, the extra assessment imposed because of the use of the interstate charter buses greatly exceeded the gross revenue from that phase of the operation of the fleet. However, no showing was made that plaintiff’s total revenue from Illinois operations was substantially affected by the total charges imposed for the use of Illinois roads. No showing was made that the total charges were not a reasonable amount for the benefits incurred. No showing was made that the charges were substantially greater in total for plaintiff than they would have been for a similarly situated domestic carrier. We agree with the trial court that plaintiff was not deprived of due process nor was interstate commerce unduly burdened.

Finally, plaintiff maintains the Secretary is estopped from charging extra fees for the runs by the unlicensed buses because its officers did not know unlicensed buses were not permitted to make this type of trip and the Secretary had previously failed to complain of similar practices although audits had been made. Only in very exceptional circumstances will the State be estopped when the public revenue is involved. (People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 306 N.E.2d 7.) We need not decide whether such circumstances existed here because evidence was presented that instructions given by the Secretary clearly showed that under the Secretary’s regulations these buses had no authority to make these runs. The administrative agency making the decision appealed could properly have concluded plaintiff’s agents knew of the regulation or in the exercise of reasonable care should have known. In either event, the elements of the limited type of estoppel claimed would not have existed.

Our affirmance is for the reasons stated.

Affirmed.

TRAPP and LEWIS, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL CHATMAN, Defendant-Appellant.
    First District (5th Division)
    No. 80—294
    Opinion filed October 29, 1982.

      Steven Clark and Karen Michels, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of one count each of attempted murder and armed violence. On appeal, he contends (1) that the trial court erred in (a) refusing a defense instruction on justifiable use of force, (b) permitting complainant to display his wounds to the jury, (c) admitting certain hearsay testimony, and (d) considering improper evidence at the sentencing hearing; and (2) that he was prejudiced by comments made in the State’s closing argument.

There is no contention that guilt was not established beyond a reasonable doubt and, accordingly, the facts presented will be those relevant to the issues raised.

Complainant, Shawn Marshall, testified that pursuant to a telephone call from defendant, he went with his four-year-old son, DeShawn Brown, to defendant’s house in Chicago, where defendant pointed a gun at him and asked that he relate what happened to defendant’s brother Warren; that although they had discussed what happened three years before, defendant said he wanted to hear it again; that later, at defendant’s request, he also told defendant’s brother Walter what happened to Warren, and after discussing the subject with them for about an hour his son said he wanted to leave; that while he was putting on his son’s coat and hat, defendant shot him in the right side; that he then wrestled with defendant and Walter for defendant’s gun, but he was thrown to the floor and his hands were tied behind his back; that he was able to work his hands loose and, when he grabbed his son and made a break for the door, defendant shot him again in the left arm; that defendant and Walter retied his hands behind his back and put him in the trunk of a car; that after about an hour, the car stopped and the trunk was opened; that he heard defendant say, “He should be dead by now,” and they then threw him into a river; and that he was able to swim across the river to a house on the opposite bank, where he asked for help and was ultimately taken to a hospital. Over defense objection, he was permitted to open his shirt and lift up his undershirt to show his wounds to the jury.

Police Inspector Cornfield testified that after arresting Walter, he went to the Chatman residence where he observed a bullet hole in a door leading to the basement, a shell casing, and what appeared to be blood spatterings on a support beam; that Walter told him and other investigators where Marshall’s son had been dropped off and directed them to some bushes in the vicinity of 47th and Lake Shore Drive, where he found the boy the next day lying in the weeds and leaves. Over objection, Cornfield testified that as he carried the boy out of the bushes, he started crying and told them that “his father had been killed by some man named Michael.”

Dr. Peterson testified that the wound in Marshall’s left arm was through and through, but involved only tissue; that in the right chest region there was an entrance wound from a penetrating missile but with no exit point; that he performed exploratory surgery which required a mid-line incision to the abdominal cavity and that 10 days later his associate made a small incision in Michael’s back to remove a bullet from a muscle.

The defense called Officer Long of the Kankakee County sheriff’s police, who stated that in response to a telephone call from a woman, he went to her home in St. Anne, Illinois, which was next to the Kankakee River, where he found Shawn Marshall wrapped in blankets and that Marshall told him that Michael Chatman had shot him.

Brenda Chatman testified that she was in her bedroom when she heard a loud crash and went down to the basement where she saw Shawn Marshall kneeling underneath the table; that defendant told her to go back to her room, and that on her way back upstairs she heard someone say that all he wanted to do was to leave with his little boy.

Walter Chatman testified that when he went downstairs to the basement of their home, defendant, Marshall, and DeShawn Brown were there; that the two men were discussing what happened to his brother Warren; that they started to argue and wrestle, and he then heard a gunshot and saw Marshall and a gun fall to the floor but he did not see who had the gun; that he went upstairs to answer the door for a friend of defendant’s who went downstairs while he remained upstairs; that later he gave defendant the keys to his car, following which he went to the basement and found DeShawn; that defendant and his friend returned about two hours later, and he drove them and the boy to the vicinity of 47th and Lake Shore Drive, where defendant and the boy got out of the car and defendant returned about five minutes later without the boy; and that, after his arrest the next day, he directed the police to where DeShawn had been left by defendant the evening before.

Opinion

We turn first to defendant’s contention that the trial court erred in refusing his tendered instruction on justifiable use of force. While it is recognized that “slight evidence” will justify an instruction on a given defense (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378), it is not error for the court to refuse an instruction where there is no evidence to support a particular defense (People v. Miller (1974), 21 Ill. App. 3d 762, 316 N.E.2d 269). Self-defense concerns the use of force which a person reasonably believes is necessary to protect himself, and the instruction is appropriate where there is evidence that a defendant knowingly and intentionally used force against another but not where a shooting was accidental. People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077.

In the instant case, only complainant, defendant’s brother, and his sister gave testimony concerning the shooting. Complainant testified that when he arrived at defendant’s home with his son, defendant pointed a gun at him on his way to the basement; that he discussed with defendant and Walter what had happened to their brother for about an hour; that while he was putting on his son’s coat and hat, defendant shot him; that when he wrestled with defendant and Walter for defendant’s gun, they threw him to the floor and tied his hands behind his back; that he worked loose and, when he tried to leave with his son, he was again shot by defendant. On cross-examination, defense counsel brought out that at the preliminary hearing complainant testified that he was struggling with defendant, who had the gun in his hand, when he (complainant) was shot in the arm and side.

Brenda Chatman testified that she went to the basement after hearing a loud noise and, as she was going back upstairs at the request of defendant, she heard someone say that all he wanted to do was to leave with his little boy. Walter testified that defendant and complainant were discussing what had happened to Warren, and after they started arguing and wrestling, he heard a gunshot and saw complainant and a gun fall to the floor, but he had not seen who had the gun.

In effect, it was complainant’s testimony that defendant shot him twice while he was attempting to leave and defendant presented no evidence to the contrary or of any actions of aggression on complainant’s part. While Walter stated that complainant was shot during a quarrel and complainant, at the preliminary hearing testified that he was shot during a struggle for defendant’s gun, there is nothing in the record to indicate that defendant could reasonably have believed that the use of deadly force was necessary to prevent great bodily harm to himself. Further, if any inference can be made from the testimony concerning the discharge of the gun during the struggle, it is that the shooting was accidental, and an instruction on self-defense is not justified under such circumstance. (People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756.) We conclude that an instruction on the justifiable use of force was properly refused.

We note at this point that defendant has failed to include in his post-trial motion any of his other contentions of trial court error and that this constitutes a waiver of those issues on appeal. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) However, even assuming that they were properly before this court, we conclude that they did not amount to prejudicial error.

The first such allegation of error is that complainant was improperly allowed to display his wounds to the jury. Following complainant’s testimony that he had been shot in the right side and the left arm, the prosecutor asked that he remove his shirt to show the jury his wounds. Over defense objection, the court permitted the display, stating: “I would ask that he open his clothing to a minimal amount so that they can see. He can open his shirt and lift up his underclothing [but] doesn’t have to disrobe completely; in this context, we will try to keep it down to a minimum.” Defendant argues the display had no relevancy and that it prejudiced defendant in that, after viewing the wounds, the jury was more likely to find him guilty.

In support of his position, defendant relies principally on People v. Nickolopoulos (1962), 25 Ill. 2d 451, 185 N.E.2d 209, and People v. Carter (1951), 410 Ill. 462, 102 N.E.2d 312, both of which involved a charge of assault with intent to commit murder. In those cases, the courts held that the extent of the wounds or injuries inflicted were irrelevant, with the Nickolopolous court quoting from Carter, as follows:

“ ‘The specific intent required by the charge is found, not from the nature or seriousness of the injury inflicted, but from the proof of the reckless character and manner of the assault, the instrument made use of by the assailant, and the other facts and circumstances shown by the evidence as indicating a malicious heart and mind.’ ” 25 Ill. 2d 451, 454, 185 N.E.2d 209, 210, quoting People v. Carter (1951), 410 Ill. 462, 467, 102 N.E.2d 312, 314-15.

Here, however, defendant was charged and convicted of attempted murder concerning which it has repeatedly been held that the nature and seriousness of the injury are considered essential elements of the charge. (See People v. Rodgers (1971), 3 Ill. App. 3d 85, 279 N.E.2d 72, aff’d (1972), 53 Ill. 2d 207, 290 N.E.2d 251; People v. Cunningham (1966), 73 Ill. App. 2d 357, 218 N.E.2d 827. See also People v. Nard (1975), 32 Ill. App. 3d 634, 335 N.E.2d 790; People v. Pearson (1972), 4 Ill. App. 3d 462, 281 N.E.2d 422, distinguishing People v. Nickolopolous on those grounds.) As was stated by the court in People v. Cunningham:

“The elements of the offense *** are specified to be that ‘a person commits an Attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.’ The indictment in this case stated that defendant took a substantial step toward commission of the offense of murder by shooting and wounding James Officer. The extent of wounds of James Officer were, therefore, clearly relevant in the case since the nature of the wounds and their location might be significant in determining whether or not the shooting and wounding was an attempt to kill.” 73 Ill. App. 2d 357, 364, 218 N.E.2d 827, 831.

Furthermore, we find People v. Nickolopoulos and People v. Carpenter (1964), 49 Ill. App. 2d 101, 199 N.E.2d 457, also cited by defendant, distinguishable for the added reason that there is nothing in the record here indicating that the display of complainant’s wounds was prejudicial.

In People v. Nickolopoulos, the victim was shot in a restaurant and the court allowed testimony that he was bleeding while on the floor and on a stretcher; that at the hospital, he was fed intravenously and had tubes in his nose; and that, as a result of the shooting, he had seven holes in his intestines and had been paralyzed in his left leg. The court found prejudicial error in the admission of this evidence and reversed the conviction. Similarly, in People v. Carpenter, where defendant was charged with attempted murder, the court found that permitting the victim to disrobe to show the jury bullet scars on his chest and neck and testimony of other witnesses to seeing blood and the victim bleeding was irrelevant and improper and highly prejudicial.

Unlike those two cases, complainant here simply opened his shirt and lifted his undershirt to show the jury the location of his wounds, and there was no inflammatory testimony either as to the details of the shooting or as to complainant’s appearance at the scene of the shooting or in the hospital.

Defendant further maintains that the evidence should not have been admitted because he had offered to stipulate that complainant was shot in the right side and in the left arm. The State, however, is not required to accept such a stipulation and has the right to prove every element of the crime. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208, rev’d on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279.) Defendant alternatively argues that the display was prejudicial because two of the scars were the result of surgical procedures rather than acts of defendant. We find this argument also' without merit, in view of the fact that defendant had the opportunity to cross-examine complainant on the nature of the scars and that the doctor fully explained the reason for the incision as well as the circumstances surrounding the removal of the bullet from complainant’s back.

Accordingly, since we believe that the display of complainant’s wounds was relevant and not prejudicial, we conclude that there was no error in allowing complainant to show the jury the location of the wounds.

Defendant also posits that a police officer’s testimony as to the statement made by complainant’s four-year-old son, that “Michael killed my daddy,” was erroneously admitted under the spontaneous declaration exception to the hearsay rule. The record reflects that the officer found complainant’s son lying among weeds and leaves in a group of bushes in an uninhabited area many hours after he was left there and, as he was carrying the boy from the bushes, the boy was crying and said that his father had been killed by a man named Michael.

For a statement to come within the spontaneous declaration exception, three factors must be present: “(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.” (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807.) Here, defendant argues only that the second condition, the requirement of spontaneity, was not met because at least 18 hours had transpired between the occurrence and the statement. While the time which elapsed is material in determining spontaneity, it is not controlling, as the court must determine from the entirety of the surrounding circumstances whether there was an opportunity for reflecting and invention. (People v. Poland; People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61.) Further, as this court stated in In re Hatfield (1979), 72 Ill. App. 3d 249, 257, 390 N.E.2d 453, 459:

“We are aware that the time factor of the spontaneous declaration exception is an elusive element that will vary with the particular facts of each case.
‘Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Testimony that the declarant still appeared “nervous” or “distraught” and that there was a reasonable basis for continuing emotional upset will often suffice.’ (McCormick on Evidence §297, at 706 (Cleary 2d ed. 1972).)”

In the present case, it appears that the statement in question was made to the first person encountered by the boy after he had been abandoned in the bushes for approximately 18 hours after seeing his father shot twice. Further, it appears that the statement was not made in response to any question by the officer and was made while he was emotionally distraught, immediately after having been found by the officer. Under these circumstances, we believe that the spontaneity requirement was met and that the evidence was properly admitted. (See People v. Robinson (1981), 94 Ill. App. 3d 304, 418 N.E.2d 899, where due to surrounding circumstances this court found a statement by a child, 16 hours after an occurrence, to come within the spontaneous declaration exception.) Moreover, in view of the nature of the occurrence and the fact that the boy was only four years old, we believe it highly unlikely that he would have fabricated the statement during the hours he was abandoned. As the court stated in People v. Cherry, in which the admission of a statement of a five-year-old girl was reviewed, “because of her age, she had no reason to lie. Her tender years militate strongly against any such claim.” People v. Cherry (1980), 88 Ill. App. 3d 1048, 1055, 411 N.E.2d 61, 67; see also People v. Miller (1978), 58 Ill. App. 3d 156, 373 N.E.2d 1077.

Defendant next suggests that in determining his sentence, the court improperly considered his acquittal of a second count of attempted murder which charged attempt to kill by throwing complainant into the river while he was physically incapacitated. We disagree.

Following arguments in aggravation and mitigation, the trial court commented, in part, as follows:

“The fact that at the time without fully knowing whether he was alive or dead the defendant took the victim, threw him in the back of a trunk of a car, drove him a number of miles and threw him in a river where, if he wasn’t dead he would drown indicated, again, a very callous, very heinous type of occurrence.”

In determining the extent and character of punishment, the trial court may look to the nature of the crime as well as to other circumstances tending to aggravate or mitigate the offense (People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258; Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1), and the imposition of a sentence will not be altered on review absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). As stated in People v. Crews (1967), 38 Ill. 2d 331, 337, 231 N.E.2d 451, 454, “Plainly, a judge with the solemn responsibility of determining the punishment of the convicted is to be encouraged to hear and consider all available and pertinent information concerning the person and the crime, so as to enable him to impose a punishment which is appropriate.”

Although the court referred to the river incident in the sentencing hearing, we note that the testimony concerning it was uncontested and had been presented at trial in relation to the shooting for which defendant was convicted of attempted murder. It was thus not improper for the court to consider in aggravation the fact that after the shootings, defendant threw complainant into the river. (See People v. Jackson (1979), 79 Ill. App. 3d 698, 398 N.E.2d 959.) Moreover, it appears that there was no mention at the sentencing hearing of the attempted murder charge on which he was acquitted, and we find no indication in the record that the trial court considered that charge in sentencing.

Finally, defendant challenges three remarks in the prosecution’s rebuttal closing argument which he contends deprived him of a fair trial. He first refers to the prosecutor’s statement that “a four-year-old boy can’t testify,” to which his objection was overruled. In Illinois, it is the degree of intelligence and understanding of a child, rather than his age, which are the relevant factors in determining whether a child under the age of 14 is competent to testify. (People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.) Thus, the prosecutor’s statement here, that a four-year-old cannot testify, is incorrect— not only because no determination was made as to competency, but also because he was six years old at the time of trial. However, in view of the overwhelming evidence of guilt, we find that the remark could not have had any effect on the jury’s verdict.

The second instance of improper argument concerns a reference to fingerprints on a shell casing. The prosecutor argued, “As far as fingerprints on the shell, they know there are no fingerprints on the shell. They could have brought in the same evidence technicians we have to say there are no prints on them.” It appears, however, we view this statement to have been made in rebuttal to the following remarks by defense counsel in his closing argument, “Why didn’t they bring the cartridge case to tell you whether or not there were fingerprints on it? Why didn’t they do that? Because these fingerprints, if any had been on it, may have been Shawn’s.” It is clear that where defense counsel has invited or provoked remarks, an accused cannot complain that he was prejudiced by statements made in rebuttal. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) We therefore find no error in this statement.

Third, defendant complains of a comment by the prosecutor that “if Shawn Marshall had died so would little Shawn Brown. That lad would have stayed in those woods for 20 hours. He would have stayed there until he died.” Defendant argues this was improper because it was a statement of what counsel thought could have happened and that it was “designed to illustrate that defendant had little regard for life.” However, a prosecutor has great latitude in closing argument (People v. Reyes (1981), 102 Ill. App. 3d 820, 429 N.E.2d 1277), and arguments and statements based upon' legitimate inferences drawn from the facts in evidence are generally not outside the bounds of proper argument (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert., denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658). Here, it is uncontested that DeShawn Brown was abandoned by defendant for 18 hours in an isolated area and found by the police only after defendant’s brother brought them to the location after he had been arrested. Under the circumstances, we believe that the comment was an inference reasonably drawn from the evidence.

For the reasons stated, the conviction and sentence are affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      He was charged with two counts of attempted murder, three counts of aggravated battery, two counts of armed violence, and one count of aggravated kidnaping.