author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH GHOLSTON et al., Defendants-Appellants (Jerry Cummings et al., Defendants).
    First District (2nd Division)
    Nos. 82-248, 82-249, 82-278, 82-287, 82-3144 cons.
    Opinion filed June 5, 1984.

      James J. Doherty, Public Defender, and T. Lee Boyd, Jr., of Boyd & Boyd, both of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and David A. Cuomo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

A grand jury charged nine defendants with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3), two counts of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 4(a)(1), (2)), two counts of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1), five counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(a), (b)(9)), and two counts of conspiracy to commit robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2).

The following defendants appeal from their convictions and indicated sentences: Kenneth Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was an aggregate term of 258 years’ imprisonment. David Love, after a bench trial, was found guilty as charged and sentenced to an aggregate term of imprisonment, the exact length of which is not clear from the record. Danny Gholston, after a separate jury trial, was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was a concurrent term of 50 years’ imprisonment. Dennis King, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 30 years’ imprisonment. Anthony Gholston, after a bench trial, was found guilty as charged and sentenced to a concurrent term of 25 years’ imprisonment.

Six grounds for reversal are presented for our review: (1) that the trial court improperly denied defendants King, Love and Danny Gholston’s motions to quash their arrests; (2) that the trial court improperly denied defendant Anthony Gholston’s motion to suppress inculpatory oral and written statements; (3) that it was constitutionally impermissible for the trial court to order two jury trials and four bench trials to be conducted in a single proceeding; (4) that certain evidentiary rulings made by the trial court resulted in prejudicial error; (5) that defendant Love was not proved guilty beyond a reasonable doubt; and (6) that the trial court abused its discretion in determining defendants’ sentences.

On December 27, 1980, at approximately 11:40 p.m., complainants Richard Fink (Fink), Matthew Kennedy (Kennedy) and a 15-year-old girl (victim) were traveling in the city of Chicago on the northbound “el” after having boarded the train at the Fullerton Avenue station. Although their destination was Evanston, the three youths got off the train at the Thorndale station because Kennedy was feeling ill. After a short while, the three moved to the north end of the “el” platform where they waited for the next train. While the youths listened to music playing on Kennedy’s radio, they were approached by a group of four or five males. Following several minutes of conversation, one of the males, later identified as defendant Joseph Thurmond, became very angry, grabbed the radio which was being held by Fink, and threw it down onto the tracks. Upon retrieving the radio, Kennedy was grabbed by one of the males and pinned against a sign on the platform. As Kennedy proceeded to fight with one of his assailants, later identified as defendant Danny Gholston, Kennedy’s coat was pulled over his head, his gloves were taken and his wallet, containing $25, was removed from his rear pocket. Kennedy was then ordered to “drop [his] pants and shut up.”

At approximately that same time, Fink was surrounded by three males, two of which were later identified as defendants Jerry Cummings and Anthony Gholston. Fink was thereupon held while he was beaten on the head and face, and kicked in the legs. Four or five dollars and some bracelets were taken from his person. Kennedy was also beaten on the head and face at this time; however, he and Fink managed to eventually break free and run down the stairs of the “el” platform where they telephoned the police.

At some point during the altercation, another group of three or four males ran toward the victim, surrounded her and began to feel her breasts through her winter jacket. Two of these assailants were later identified as defendants Kenneth Gholston and Dennis King. While crying and trying in futility to keep her tights and underwear from being pulled off, the victim was eventually pushed down onto the platform.

Defendant Kenneth Gholston was the first to rape the 15-year-old girl while other males stood around them yelling “Let me get in there, let me have some ***”; “spread them wider *** if you’re not good we’ll kill you.” As several of the males fondled the victim’s breasts through the jacket which they were unable to pull off of her, Kenneth Gholston told them that she was “good” and that they should take her home and put her “on the stroll.” At some point thereafter, Kenneth Gholston lifted the victim up by her hips and attempted anal intercourse. He then stood up and allowed one of his companions, later identified as defendant Darrell King, to rape the girl.

While Darrell King was having intercourse with the victim, he put his hand around her throat, choked her and told her to shut up. At this point, defendant Anthony Gholston crouched down near the victim’s face and forcibly inserted his penis into her mouth. As the young girl cried, the other assailants continued to yell “Let me get in.” When Darrell King and Anthony Gholston were finished sexually gratifying themselves, defendant Dennis King proceeded to get on top of the victim and choke her as he inserted his penis into her vagina.

While Dennis King raped the victim, defendant Danny Gholston crouched down near her face and forcibly inserted his penis into her mouth. Soon thereafter, Danny Gholston yelled at Dennis King to “Let me get in there”; King then stood up to allow Danny Gholston to get into a position to rape the victim. The next thing the victim remembered was that David Love exchanged places with Danny Gholston and stated that “he was going to get his.”

As a southbound train approached the Thorndale station, the victim was picked up and thrown down onto the tracks. Defendant Love then jumped off the platform, pulled the girl into the snow nearby and raped her. When Love was finished, the victim begged him not to kill or hurt her; however, before he stood up, Love hit the girl in the face very hard. Thereafter, the victim heard nothing but the sound of a train departing from the Thorndale station.

It was at this point that the victim observed a lot of blood and mucus around her vaginal area. She then began to crawl back toward the tracks. Reaching the platform, she proceeded along in the snow to a point where she could push herself up onto the surface of the platform. A gentleman standing nearby saw her, removed his jacket and put it around her shoulders. After a northbound train pulled into the station, the victim explained to the engineer what had happened. An order was then immediately dispatched from the train to stop the last southbound “el” that had left the Thorndale station. Soon thereafter, Fink met the victim on the platform, told her that everything was going to be okay, and carried her downstairs. After Kennedy, Fink and the victim provided the police with a description of the offenders, they were taken to a hospital for treatment.

Officer Gene Harris, assigned to the 19th District Tactical Unit of the Chicago police department, received an emergency dispatch on the night in question at approximately 12:25 a.m. He and his partner proceeded to the Belmont and Sheffield “el” station to intercept the southbound train on which defendants were riding. At the train station, the two police officers boarded the first car of the two-car southbound “el” when it arrived; three other Chicago police officers boarded the second car. Officer Harris then began to search for persons matching the description of the rapists. He observed six of the nine defendants seated across from each other, conversing in the rear of the first car. After obtaining their addresses and ordering them off of the train, Officer Harris placed Dennis King, Darrell King, Danny Gholston, David Love, Anthony Hart and Joseph Thurmond under arrest.

On the morning of December 28, 1980, the six defendants arrested at the Belmont station were identified in a lineup. The victim recognized Dennis King, Danny Gholston, David Love and Darrell King; Kennedy recognized Danny Gholston and Joseph Thurmond; Fink recognized Anthony Hart and Joseph Thurmond. Anthony Gholston and Jerry Cummings were arrested later that day. Kenneth Gholston was arrested on January 18, 1981. Following interviews conducted by Irving Miller, an assistant State’s Attorney assigned to the Area 6 Felony Review Unit, incriminatory statements were obtained from Kenneth Gholston, David Love, Danny Gholston, Jerry Cummings, Anthony Gholston and Dennis King. Thereupon, each of the nine defendants were charged by indictment with rape, deviate sexual assault, indecent liberties with a child, two counts of robbery, five counts of aggravated battery, and two counts of conspiracy to commit robbery.

On November 10, 1981, Anthony Hart pleaded guilty to robbery and aggravated battery. On November 16, 1981, Joseph Thurmond also pleaded guilty to robbery and aggravated battery. That same day, November 16, Darrell King entered a plea of guilty to all charges. Hart and Thurmond each received a concurrent term of seven-years’ imprisonment; Darrell King received a concurrent term of 20 years’ imprisonment. Two jury trials and four bench trials were thereafter conducted in a single proceeding as to the six remaining defendants. Following Jerry Cummings’ bench trial, he was found guilty of robbery, aggravated battery and conspiracy to commit robbery; Cummings was sentenced to a concurrent term of seven years’ imprisonment, but is not involved in this appeal.

Regarding the judgments of conviction and sentence of the five defendants involved in this appeal, Anthony Gholston and Dennis King, following bench trials, were found guilty as charged and sentenced, respectively to concurrent terms of 25 and 30 years’ imprisonment. Following a jury trial, Danny Gholston was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was -a concurrent term of 50 years’ imprisonment. Following a bench trial, David Love was found guilty as charged and sentenced to an aggregate term of imprisonment. The specific length of such term, as hereinafter discussed, is not clearly ascertainable. Following a jury trial, Kenneth Gholston was found guilty of rape, deviate sexual assault, one count of indecent liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of conspiracy to commit robbery. The sentence imposed was an aggregate term of 258 years’ imprisonment. Specifically, Kenneth Gholston was sentenced to a consecutive term of 60 years’ imprisonment for the rape conviction, plus 60 years’ imprisonment for the deviate sexual assault conviction, plus 30 years’ imprisonment for each of the two charges of indecent liberties with a child, plus 14 years for each of the two robbery convictions, and 10 years’ imprisonment for each of the five charges of aggravated battery. All of the terms were to run consecutively. The conspiracy to commit robbery conviction was merged into the two robbery convictions.

It is the propriety of these convictions and sentences which defendants now contest on appeal.

I

Initially, defendants David Love, Dennis King and Danny Gholston contend that there existed no probable cause for their arrests at the Belmont “el” station on the early morning of December 28, 1980.

Probable cause for purposes of arrest is present when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed, and that the person arrested has committed the offense. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, cert. denied, (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92.) Mere suspicion that the person arrested has committed an offense is insufficient grounds for arrest; however, it is well settled that the probable cause standard does not require the arresting officer to have in his hands evidence sufficient to convict the accused. People v. Moody (1983), 94 Ill. 2d 1, 7, 445 N.E.2d 275; People v. Marino (1970), 44 Ill. 2d 562, 573, 256 N.E.2d 770.

A determination as to whether or not probable cause for an arrest exists in a particular case depends upon the totality of facts and circumstances known to the officers at the time of arrest. (People v. Cobb (1983), 97 Ill. 2d 465, 485, 455 N.E.2d 31.) In deciding the question of probable cause in any given case, the courts are not to be unduly technical; rather, they are to deal with probabilities, i.e., the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Creach (1980), 79 Ill. 2d 96, 102, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564.

Moreover, during any probable cause analysis, we must consider that police officers are often required to act upon a quick appraisal of the data before them. As a result, the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to apprehend criminals. People v. Robinson (1976), 62 Ill. 2d 273, 277, 342 N.E.2d 356.

Following the rape and deviate sexual assault of the victim, she explained to the engineer of a stopped northbound train what had happened. An order was immediately dispatched from the train to stop the last southbound “el” that had just left the Thorndale station. Very soon thereafter, the victim provided the police with specific descriptions of the offenders. Fink and Kennedy also talked to police officers for several minutes at the Thorndale station. The details given at this time included approximate ages, heights and sizes of the members of the group of black males, as well as specific colors and styles of their coats, jackets and pants.

During the hearing on defendants’ motions to quash arrest, Officer Harris testified that he received two dispatches on the night in question at approximately 12:25 a.m. He immediately proceeded with his partner to the Belmont and Sheffield “el” station to intercept the southbound train which had just left the Thorndale station. The two police officers were given a description of 10 to 12 black males, ranging in age from “17 to 20, middle 20’s,” wearing tan and rust-colored jackets. One of the males was described as wearing a long, dark trenchcoat, while another was described as wearing a dark-colored cap.

Upon their arrival at the Belmont station, Officer Harris and his partner met with five other police officers. When the designated train pulled into the station, the officers told the engineer not to continue southbound and they then split up into two groups. Officer Harris and his partner entered the first car of the two-car “el.” All of the black male occupants seated in the front and middle of this car were dismissed as suspects since they were all in their late 20’s or older. However, as the two police officers proceeded into the rear portion of the first car, they observed six black males seated across from each other, facing the center of the aisle and conversing with one another.

Regarding their personal characteristics, Officer Harris testified that “the guys were in the age range that was on the broadcast. They had similar clothing. They had tan jackets. *** The Kings had tan jackets on. Danny Gholston had a rust-colored jacket on, and this was — they had black caps on, small with bibs. This was the description we had received.” (Emphasis added.) In addition, “David Love had blue jeans on, black leather jacket covered by a three-quarter length gray coat *** that was one of the descriptions.”

Upon request, the six defendants then gave Officer Harris “west side addresses, 5000 some west on Washington, somewhere north on Long, and in that area like that.” It was this evidence of geographical proximity from which Officer Harris could reasonably infer that the group of six black males he observed conversing in the rear of the “el” car were, at the very least, acquainted with one another. Such an acquaintance, manifested by riding together in the early morning hours on an “el” not near their alleged addresses, could suggest to an alert police officer, along with the other facts known to him at that time, that these persons were the subjects referred to in the emergency dispatch.

In essence, considering the totality of facts and circumstances at the time of the arrests, Officer Harris had more than a mere suspicion. He had a reasonable belief based on his 17 years of experience as a Chicago police officer, that the six black males he observed in the rear of the “el” train were the perpetrators of the gang rape and deviate sexual assault of the victim. Since defendants’ arrests were lawfully made with probable cause, we hold that the trial court correctly denied their motions to quash these arrests. As defendants’ incriminating statements were not, therefore, “fruit of the poisonous tree” (See Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417), the court also properly denied their corollary motions to suppress such incriminatory evidence.

II

The next issue for consideration concerns the propriety of the trial court’s denial of defendant Anthony Gholston’s motion to suppress inculpatory oral and written statements. Specifically, Anthony argues that his confession was involuntarily obtained due to his alleged belief that an assistant State’s Attorney was his own lawyer. Thus, it is urged that any statements made by defendant were privileged.

The criterion used by Illinois courts for admission of a confession is “whether the confession was made freely, voluntarily, and without compulsion or inducement of any sort.” (People v. Young (1983), 115 Ill. App. 3d 455, 462, 450 N.E.2d 947.) The test for voluntariness is whether the defendant’s will was overborne at the time he made the inculpatory statement. (People v. Kincaid (1981), 87 Ill. 2d 107, 117, 429 N.E.2d 508, cert. denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144, 102 S. Ct. 1726.) The burden is upon the State to establish by a preponderance of the evidence that the confession was voluntarily made (People v. Wallace (1983), 114 Ill. App. 3d 242, 247, 448 N.E.2d 910); a finding of voluntariness will not be disturbed on review unless it is contrary to the manifest weight of the evidence (People v. Davis (1983), 97 Ill. 2d 1, 20, 452 N.E.2d 525).

In determining whether a confession was voluntarily given, a court of review is to consider the totality of circumstances surrounding its making rather than any one individual factor. (People v. Childers (1981), 94 Ill. App. 3d 104, 110, 418 N.E.2d 959, cert. denied (1982), 455 U.S. 947, 71 L. Ed. 2d 661, 102 S. Ct. 1448.) “Factors to be considered include the giving of Miranda warnings, the time elapsed between the arrest and the confession, the presence of any intervening circumstances, and the flagrancy and purpose of the official misconduct.” People v. Lester (1981), 102 Ill. App. 3d 761, 765, 430 N.E.2d 358.

Regarding the instant action, Assistant State’s Attorney Miller testified in open court that, prior to the Miranda warnings, “I advised [Anthony Gholston] that I was an Assistant State’s Attorney and not his personal attorney, that I was working with the police based on my functions as a Felony Review State’s Attorney.” Miller further explained to defendant that he “worked with the Police Department to determine what charges were to be placed against individuals.” Detective Lawrence Flood of the Chicago police department, assigned to Area 6 Violent Crimes, was present during Anthony’s interview. Detective Flood testified that Miller “told him who he was. He told him he was an Assistant State’s Attorney and not his attorney.”

In essence, based upon our review of the record, defendant’s assertion that he thought Miller was his own attorney lacks any serious merit. Anthony did not testify in support of this assertion but instead relies upon such a statement in his verified motion to suppress. It is inconceivable how the State’s Attorney could have explained his occupation, as well as his purpose for interviewing defendant, with more clarity and simplicity. Furthermore, there is no evidence that defendant was in any way mistreated, threatened, or denied water or lavatory facilities. There is no evidence that he was physically abused or harassed; indeed, defendant even told Miller that the police had treated him “okay.” There is no evidence that Anthony suffered from retardation or any other mental handicap, and there is no indication that he was the recipient of promises or misrepresentations. Viewing all of the evidence surrounding the making of defendant’s incriminatory statement, a finding of voluntariness is, therefore, not against the manifest weight of the evidence. Since an opposite conclusion is not clearly evident, the trial court did not err in denying defendant’s motion to suppress.

Ill

We next focus on the propriety of conducting two jury trials and four bench trials in a single proceeding. Defendants Kenneth and Danny Gholston were each tried in the same courtroom by separate juries, while simultaneously, defendants Anthony Gholston, King, Love and Cummings each received a bench trial. These separate trials took place as the result of defendants’ motions for severance based on statements allegedly given by each defendant.

A

Defendants King and Anthony Gholston contend that their simultaneous bench trials resulted in prejudicial error. Specifically, they cite error in the fact that the victim identified each offender in open court; that Assistant State’s Attorney Miller read the content of each defendant’s statement during the course of the bench trials; and that each defense counsel “played his own defendant off against the others.”

In Illinois, a trial judge, due to his particular training and experience, is regarded as having a greater ability than a jury to restrict the use of improper evidence. (People v. McNeal (1977), 56 Ill. App. 3d 132, 138, 371 N.E.2d 926, appeal denied (1978), 71 Ill. 2d 604.) Consequently, “where a trial is had without a jury there is a presumption that the trial court considered only competent evidence and that presumption can be overcome only where the record affirmalively shows the contrary.” (People v. Alford (1982), 111 Ill. App. 3d 741, 744, 444 N.E.2d 576, citing People v. Gilbert (1977), 68 Ill. 2d 252, 258-59, 369 N.E.2d 849.) From our review of the record, we discern no such showing to the contrary. In fact, the trial was conducted by an experienced and capable trial judge.

The trial court properly considered the in-court identifications of the defendants which were made by the victim in corroboration of her previous, positive lineup identifications. The court properly admitted into evidence the incriminatory statements, the voluntariness of only one which has been contested on this appeal. Further, there is absolutely no indication that the court, as trier of fact, improperly considered the inculpatory statements of one offender as substantive evidence against any of the other offenders.

Regarding the “playing off” of each defendant by his respective attorney, ‘ ‘it is presumed that the trial court will disregard all improper arguments by counsel.” (People v. O’Malley (1982), 108 Ill. App. 3d 823, 829, 439 N.E.2d 998, appeal denied (1982), 92 Ill. 2d 571.) Defendants have failed to show that the trial court relied upon such argumentation in reaching its findings of culpability. Rather, it is clear that the evidence implicating defendants Dennis King and Anthony Gholston was admitted only after a proper foundation was adequately established by the prosecution. Indeed, the sufficiency of the evidence proving guilt beyond a reasonable doubt has not been challenged by these two defendants on appeal. We find nothing in the record to justify deviating from the sound presumption that a court in a bench trial considers only competent evidence in determining guilt or innocence.

B

Defendants Kenneth and Danny Gholston claim that the simultaneity of their jury trials resulted in a denial of their due process rights.

As a general rule, “[a]n accused does not have a right to be tried separately from his companions when charged with offenses arising out of a common occurrence.” (People v. Ruiz (1982), 94 Ill. 2d 245, 257, 447 N.E.2d 148, cert. denied (1983), 462 U.S. 1112, 77 L. Ed. 2d 1341, 103 S. Ct. 2465; see also, People v. Earl (1966), 34 Ill. 2d 11, 13, 213 N.E.2d 556.) In the interests of fairness, however, should it appear that an offender will be prejudiced by a joinder of defendants for trial, “*** the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 8.) Whether separate trials should be granted is, therefore, a matter addressed to the sound discretion of the trial court; such a decision will not be reversed absent an abuse of that discretion. People v. Lee (1981), 87 Ill. 2d 182, 186, 429 N.E.2d 461; People v. Sanford (1983), 116 Ill. App. 3d 834, 840, 452 N.E.2d 710, appeal denied (1983), 96 Ill. 2d 564.

Regarding the case at bar, the trial court, by ordering separate jury trials for defendants Kenneth and Danny Gholston, avoided a possible conflict with the principles articulated in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and its progeny. The fact that these two jury trials were conducted simultaneously in one courtroom before a single judge was constitutionally permissible. (People v. Ruiz (1982), 94 Ill. 2d 245, 259; United States v. Sidman (9th Cir. 1972), 470 F.2d 1158, 1169-70, cert. denied (1973), 409 U.S. 1127, 35 L. Ed. 2d 260, 93 S. Ct. 948.) It has also been held that this procedure has statutory foundation in Illinois. Ill. Rev. Stat. 1979, ch. 38, par. 114 — 8; People v. Church (1981), 102 Ill. App. 3d 155, 164, 429 N.E.2d 577.

Nonetheless, defendants Kenneth and Danny Gholston argue that they were each deprived of an impartial trial by virtue of the fact that the victim was allowed to testify before both juries at the same time; that she was allowed to identify defendants in court and from lineup photographs; that Assistant State’s Attorney Miller was permitted to testify before each jury separately; that he had interviewed and obtained statements from defendants; and that the microanalyst was allowed to testify, before the Kenneth Gholston jury, as to the results of the spermatozoa and mucus examinations.

Under Illinois decisional law, the two-jury procedure is acceptable “where a defendant is given every opportunity to present a complete defense before one jury, cannot point to any event which confused the jury or affected its ability to render a decision fairly, and the record shows that the trial judge adequately prepared the jurors for the procedure ***.” (People v. Church (1981), 102 Ill. App. 3d 155, 164-65.) Absent any showing of prejudice, a court of review cannot speculate as to any impropriety in the procedure. People v. Smith (1981), 94 Ill. App. 3d 969, 976, 419 N.E.2d 404.

The record in the present case is replete with admonitions by the lower court to each jury that its sole concern was the particular offender whose guilt or innocence they would eventually determine. The experienced trial judge exercised great care and patience in stressing repeatedly the nature of each jury’s responsibilities, as finder of fact, and that what would happen with respect to the other defendants was of no consequence to its consideration of the ultimate issue of criminality. It is also readily apparent that the court exercised great caution in retiring each jury when certain inculpatory evidence not relevant to its respective case was introduced. Defendants Kenneth and Danny Gholston each concede that his incriminatory statements were read in full only to his own jury. Regarding the other defendants’ statements, error is claimed simply because both of the juries became aware that such evidence was in existence, and that all of the defendants implicated one another through these statements. This claim of error, however, lacks merit since Kenneth and Danny Gholston’s trial lawyers engendered this awareness during their opening statements before their respective juries. Essentially, both trial attorneys revealed that their clients had already been implicated by several statements obtained from the other defendants.

Because a substantial portion of the State’s testimonial evidence proffered during the course of the proceedings was admissible as against all of the defendants, two simultaneous jury trials were certainly preferable in the interests of judicial economy. Although Kenneth and Danny Gholston adamantly contend that it was improper to allow the victim to testify and make in-court identifications before both juries, our query during oral argument still remains unanswered: How did this particular strategy on the part of the prosecution result in manifest prejudice? As defendants acknowledge, the trial court had a legitimate concern for minimizing the extreme trauma to the youthful victim reliving her ordeal over several court appearances spread out over a number of months. By failing to demonstrate prejudicial error, defendants’ mere allegation that such a limitation of courtroom exposure was an “imprudent solution” is, in our opinion, a legally insufficient basis upon which to predicate an outright reversal of their convictions.

Likewise, the fact that Kenneth Gholston’s jury was present when Officer Lenz testified as to the results of the spermatozoa and mucus examinations performed on the clothing of several defendants does not, in itself, constitute reversible error. First, such evidence was probative of the criminality for which, as the State had maintained during trial, Kenneth Gholston should be held accountable. Second, the totality of evidence establishing Kenneth Gholston’s guilt beyond a reasonable doubt was overwhelming; a challenge as to the sufficiency of this inculpatory evidence is not even before this court.

In essence, defendants were given every opportunity to present a complete defense before their respective juries. Both Kenneth and Danny Gholston have failed to demonstrate how their specific citations of error affected either jury’s ability to render a fair decision. Although we recognize the possibility of confusion inherent in the multiple jury procedure, we find nothing in the record before us indicative of prejudicial error. Therefore, we cannot speculate as to any impropriety in the two jury trials below. Indeed, we commend the trial judge for not only thoroughly preparing the jurors for this procedure, but for conducting a very complex, arduous proceeding in a highly judicious manner.

IV

We now consider whether certain evidentiary rulings made by the lower court resulted in prejudicial error.

A

First, defendant Love argues that the State failed to show a continuous chain of possession prior to the introduction of his blue jeans and white undershorts into evidence.

In establishing a sufficient chain of possession, the prosecution is not required to exclude all possibility of tampering. (People v. Winters (1981), 97 Ill. App. 3d 288, 295, 422 N.E.2d 972, cert. denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282.) In the absence of any specific suggestion of alteration, substitution or tampering, it is sufficient for the State to prove only a reasonable probability that the evidence has not changed in any important respect. (People v. Witanowski (1982), 104 Ill. App. 3d 918, 925, 433 N.E.2d 334; People v. Rhoades (1979), 74 Ill. App. 3d 247, 252, 392 N.E.2d 923, appeal denied (1979), 79 Ill. 2d 623.) We hold that the State adequately established such a reasonable probability.

During the proceedings below, Detective Mannion testified that soon after defendant Love arrived under custody at Area 6, his clothing was removed, inventoried, placed in a plastic bag that was tied at the top, and sent down to the crime lab. The Area 6 inventory procedure entails the immediate completion of both a slip that is attached to the bag and a small, white piece of paper that is placed inside the bag. At trial, Detective Mannion identified People’s group exhibit No. 19 as the clothing taken from defendant Love. Officer Lenz, the microanalyst, testified that these clothes were “brought into the crime lab in a sealed condition in a plastic bag.” The inventory slip was checked with the white piece of paper inside the bag “[t]o make sure it was the right inventory for the right bag of clothing and the same case number.” Defendant’s clothing was packed into a cardboard box and stored in the evidence and recovered property section until a request for analysis was made. The subsequent analysis of defendant Love’s Jockey undershorts revealed spermatozoa and mucus encrustations. The trial court stated that it regarded the chain of custody intact, and subsequently ruled this incriminating evidence admissible.

Under the circumstances present in the case at bar, it is clear that the State met its burden of showing a sufficient chain of custody. Continuity of possession of the clothing was adequately established through the testimony of Officers Mannion and Lenz. No evidence of alteration, substitution or tampering was presented, much less suggested. As a consequence, we hold that no reversible error occurred when Love’s clothing was introduced into evidence.

B

Defendants Dennis King, Danny, Anthony and Kenneth Gholston argue that prejudicial error occurred when the trial court permitted the victim to testify that she was diagnosed as having contracted genital herpes approximately 10 days following the gang rape and deviate sexual assault.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Fed. R. Evid. 401; People v. Free (1983), 94 Ill. 2d 378, 413, 447 N.E.2d 218.) “Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable.” Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768.

Applying the foregoing definition of “relevant evidence,” it is clear the victim’s testimony concerning her condition of genital herpes was relevant as tending to prove defendants’ sexual abuse of the victim on the night in question. It was the evidence of a sexually transmissible disease that was probative of the physical contact element necessary to establish the three sex offenses for which defendants were charged.

Defendants nonetheless argue that the prejudicial impact of this testimonial evidence outweighed its probity. To the contrary, from our review of the instant record, we find no such manifest prejudice. Taken in its entirety, the incriminatory evidence adduced at the trial below was overwhelming. Indeed, defendants Dennis King, Danny and Kenneth Gholston do not even contest the sufficiency of evidence establishing their guilt beyond a reasonable doubt.

V

Defendant Love contends that he was not proved guilty beyond a reasonable doubt of the offenses for which he was charged and convicted.

During the trial below, the victim testified that after Danny Gholston got off of her as she lay on the “el” platform, David Love stated that “he was going to get his” as he exchanged places with Danny Gholston. Soon thereafter, when a southbound train was approaching the Thorndale station, David Love and another person picked the victim up by the hair and arm, and threw her down onto the tracks. Defendant Love then jumped off of the platform, pulled the victim by the hair into the snow and raped her. Afterwards, as the young girl cried and begged Love not to kill or hurt her, Love “raised his arm and hit me really hard upside my face — on the side of my face.” Love then walked back toward the tracks and boarded the southbound train.

It is now argued by defendant that “the horrible events affected [the victim] to the point that her identification of [him] cannot be relied upon.” Further, defendant asserts that a minor discrepancy as to the color of his pants warrants reversal of his convictions.

In Illinois, it is uncontroverted that “[t]he credible testimony of a single witness who viewed defendant under circumstances that would permit a positive identification is sufficient to support a conviction.” (People v. Johnson (1982), 109 Ill. App. 3d 511, 519, 440 N.E.2d 992, appeal denied (1983), 92 Ill. 2d 576; see generally People v. Vriner (1978), 74 Ill. 2d 329, 343, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) “The test of a positive identification is whether the witness was close enough to the accused for a sufficient length of time under conditions adequate for observation.” (People v. Brown (1982), 110 Ill. App. 3d 1125, 1128, 443 N.E.2d 665, appeal denied (1983), 93 Ill. 2d 543.) Factors to be considered in evaluating the likelihood of a misidentification include: (1) the opportunity of the witness to view the accused at the time of the offense; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the offense and such confrontation. Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411-12, 93 S. Ct. 375, 382-83.

The present record evinces that the victim viewed defendant Love under circumstances which would permit a subsequent positive identification. She observed Love twice at close range, both before and after she was thrown off of the platform onto the tracks. In addition to seeing defendant get on top of her as she lay on the lighted platform, complainant also observed defendant for a period of three to four minutes underneath the platform where “[t]here was light coming through.” In corroboration of the positive identification of defendant Love during trial, the State proffered testimonial evidence of the victim’s unequivocal pretrial identification of the accused. This occurred during a police lineup conducted within a matter of hours after Love raped and beat complainant.

Furthermore, a microanalyst employed by the Chicago police department discovered spermatozoa and mucus encrustations on the Jockey shorts that were taken from defendant Love soon after his arrest. Defendant himself admitted to Officer Phillip Mannion of the Chicago police department, and to Assistant State’s Attorney Miller, that he “went along [on the night in question] to rob people for a few dollars. But things kind of got carried away.” The voluntariness of this incriminatory statement has not been challenged on appeal.

As for the minor discrepancy in Love’s trouser identification, it is well settled that where a witness makes a positive identification, precise accuracy in the preliminary description is not necessary. (People v. Brown (1982), 110 Ill. App. 3d 1125, 1129; People v. Goodman (1982), 109 Ill. App. 3d 203, 217, 440 N.E.2d 345.) “[I]t is contrary to human experience to make an identification by noticing first the *** clothes of a person ***. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal.” People v. Ervine (1965), 64 Ill. App. 2d 82, 87, 212 N.E.2d 346, appeal denied (1966), 33 Ill. 2d 625.

We find the victim’s identification of defendant Love was reliable in light of the totality of circumstances. Without question, the law commits to the trier of fact the determination of the credibility of witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733; People v. Ahern (1983), 119 Ill. App. 3d 532, 536, 456 N.E.2d 852.) “[T]hat determination will not be reversed unless the evidence is so improbable as to create a reasonable doubt ***.” (People v. Davis (1983), 95 Ill. 2d 1, 27, 447 N.E.2d 353.) The trial court evaluated the victim’s credibility and subsequently found defendant guilty beyond a reasonable doubt of the crimes for which he was charged. Since the identifications of Love are not so dubious that any serious doubt of his guilt can be raised, there exists no basis upon which to reverse the trial judge’s determination of guilt.

VI

The final issue raised by defendants concerns the propriety of sentencing.

A

Defendant Love argues that the lower court failed to make the specific finding that a consecutive term of imprisonment was required to protect the public from his further criminal conduct. Love additionally contends that no basis exists in the record for the imposition of his consecutive sentence.

Section 5 — 8—4(b) of the Unified Code of Corrections provides that:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(b).

Defendant Love’s first argument for a reduction of his sentence must fail since section 5 — 8—4(b) “does not require the trial judge to specifically repeat the statutory language in order to make the required finding that a consecutive sentence is necessary for the protection of the public although to do so would be the better practice.” People v. Logan (1983), 117 Ill. App. 3d 753, 759, 453 N.E.2d 1317.

Defendant Love’s assertion that the record is devoid of any basis for the imposition of consecutive terms of imprisonment is equally without merit. As the trial court aptly stated on the record, defendant Love’s participation in the crimes displayed his mental thoughts and “his actions enhanced the heinous nature of the offense to the extent that I feel that the extended term and consecutive sentences, where they have been imposed are warranted.” It is unnecessary to reiterate at this point the horror and humiliation that Love put the victim through as he “got his” on the night in question. We also note that at defendant’s sentencing hearing, the prosecution informed the sentencing judge that defendant, after he was taken into custody for the instant offenses, raped an inmate of the Cook County Department of Corrections. In view of defendant Love’s abhorrent propensity to commit sex crimes, the imposition of consecutive sentences cannot be said to have lacked evidentiary substantiation.

As indicated earlier in this opinion, we note a lack of a clear sentencing record as to counts 3 and 4, the indecent liberties counts, regarding defendant Love’s convictions. In imposing the sentence on these charges, the court stated that: “David Love, it is the sentence of this court that you be *** [incarcerated] *** for a period of twenty-five years on the charge of indecent liberties ***.” However, the circuit court half-sheet reflects that defendant received two consecutive 25-year terms of imprisonment for his two (counts 3 and 4) indecent liberties convictions. Thus, the half-sheet entry is in conflict with the trial court’s sentence pronouncement from the bench, and the mittimus fails to indicate a sentence determination as to count 4 of the indictment on which defendant was found guilty, i.e., sexual intercourse with a child under the age of 16 years. Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)(1).

From our review of the order of sentence and commitment, it appears that consecutive sentences were intended with respect to the indecent liberties and the robbery convictions. In view of the nature of consecutive sentencing, we remand this cause for resentencing on count 4 in order that the total record is consistent.

B

Defendants Dennis King and Anthony, Danny and Kenneth Gholston suggest that the trial court was unconcerned with their rehabilitative potential in that it imposed the sentences of imprisonment solely for purposes of punishment. To the contrary, our review of the record indicates that the court was fully aware of defendants’ personal traits, their ages, their educational as well as employment backgrounds, and their family situations. Further, the sentencing judge provided defense counsel with ample opportunity, which they each fully utilized, for argument in mitigation.

“[Rjehabilitation and the seriousness of the offense are to be accorded equal weight in fixing punishment, and the prime responsibility for striking the proper balance between the two factors rests with the trial court.” (People v. Crosser (1983), 117 Ill. App. 3d 24, 32, 452 N.E.2d 857.) The fact that the trial judge here had no “hope” for the rehabilitation of the defendants is not, in itself, indicative of failure to consider whether or not there was such hope.

Defendants’ claim of error regarding the lack of “consistency” in sentencing between all of the offenders must similarly fail. Mere disparity in sentencing between defendants, without more, does not warrant reduction of the punishment imposed by the trial court. (People v. Thompson (1967), 36 Ill. 2d 478, 482, 224 N.E.2d 264, cert. denied (1967), 389 U.S. 870, 19 L. Ed. 2d 151, 88 S. Ct. 155; People v. Mick (1980), 86 Ill. App. 3d 1022, 1028, 408 N.E.2d 1079.) Furthermore, in Illinois, a trial court’s determination of a sentence involves consideration of the subjective circumstances presented in each individual case, i.e., the offender’s mentality and general moral character, his abnormal or subnormal tendencies, and his natural inclination or aversion to commit crime. People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226; People v. Reese (1984), 121 Ill. App. 3d 977, 989.

Recognizing that the trial court’s determination of a sentence is entitled to great deference and weight on appeal, we are of the opinion that, based upon a review of the record in the present case, the sentences imposed on defendants David Love, Dennis King, Anthony and Danny Gholston should not be reduced. However, as the State concedes, the maximum term of imprisonment that defendant Kenneth Gholston could have received was “*** the sum of the maximum terms authorized under Section 5 — 8—2 for the two most serious felonies involved.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(c)(2).) Since the maximum extended term of imprisonment for either rape or deviate sexual assault is 60 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(2)), defendant Kenneth Gholston’s sentencing order is modified to reflect an aggregate term of 120-years imprisonment. The details of the modification will be hereinafter described.

In addition, the sentencing order pertaining to Danny Gholston incorrectly reflects two counts of indecent liberties with a child and two counts of aggravated battery; the sentencing order pertaining to Kenneth Gholston incorrectly reflects two counts of indecent liberties with a child and five counts of aggravated battery. Since these defendants were each convicted of one count of indecent liberties with a child and three counts of aggravated battery, the lower court’s orders must be corrected accordingly.

Kenneth Gholston’s sentencing order is modified as follows: Defendant is sentenced to a term of 60 years’ imprisonment for rape (count 1) and 60 years’ imprisonment for deviate sexual assault (count 2). The sentences on counts 1 and 2 are to be served consecutively with one another. The remaining sentences as to defendant Kenneth shall be concurrent with the aforesaid sentences and with each other.

VII

The State’s motion before this court to strike that part of defendants Dennis King, and Anthony, Danny and Kenneth Gholstons’ brief which contains matters that are dehors the record is granted.

Essentially, the assistant appellate defender has incorporated copies of newspaper clippings, dating from December 29, 1980 to January 1, 1982, into Appendix B of defendants’ opening brief. By virtue of this photocopied material, it is now argued that extensive publicity may have played a role in the trial judge’s sentencing determinations.

In the absence of a stipulation between the parties, matters outside the record cannot be considered by this court on review. (People v. Reese (1984), 121 Ill. App. 3d 977, 983, citing People v. Haas (1981), 100 Ill. App. 3d 1143, 1149, 427 N.E.2d 853.) Regarding the instant case, there is no allegation by any of the defendants that the lower court was informed prior to sentencing that its determination would possibly be influenced by any form of public pressure. Nor is there any indication in the record the defendants sought a change of venue, before trial, due to any alleged prejudicial publicity. Moreover, the various photocopied newspaper articles contained in Appendix B to defendants’ brief were never introduced, much less proffered, into evidence during any stage of the proceedings below. Since there was neither a stipulation between the parties, nor a request made to this court seeking permission to supplement the record with the photocopied newspaper coverage, we hereby grant the State’s motion to strike that part of defendants’ brief which is dehors the record.

CONCLUSION

For the foregoing reasons, the State’s motion to strike is granted; the judgments of conviction are affirmed; the sentencing orders with respect to defendants Dennis King and Anthony Gholston are affirmed; the sentencing orders with respect to defendants Danny and Kenneth Gholston are corrected in accordance with the views expressed herein; and the cause as to defendant David Love is remanded to the circuit court of Cook County for resentencing on count 4.

HARTMAN, P.J., and PERLIN, J., concur.

      The record and briefs before this court also refer to this particular defendant’s first name as “Darryl” and “Darrel.”

      Approximately 10 days following the rape and deviate sexual assault, the victim noticed blisters in her vaginal area; she was subsequently diagnosed as having contracted genital herpes.

      Kenneth Gholston maintains that the court sentenced him to an aggregate term of 208 years’ imprisonment. However, our review of the mittimus indicates that defendant failed to include in his calculations (1) the 30-year term of incarceration imposed on a second count of the indecent liberties charge, and (2) both of the 10-year terms of incarceration imposed on the fourth and fifth counts of the aggravated battery charge.

      The distance from the Kings’ residence on Washington to the Gholstons’ residence on Long is within a city block.

       In Bruton, the Supreme Court reversed the armed robbery conviction of a defendant who had been implicated through the introduction, during a joint trial, of his codefendant’s extrajudicial confession. The Court held that when the codefendant was not called to testify, the admission of such an incriminatory statement deprived defendant of his rights under the confrontation clause (U.S. Const, amend. VI) Bruton v. United States (1968), 391 U.S. 123, 137, 20 L. Ed. 2d 476, 485-86, 88 S. Ct. 1620, 1628-29.

      Anthony Gholston’s trial attorney stated that he did not care whether or not the evidence of genital herpes was ruled admissible. The written motion for new trial filed on Anthony Gholston’s behalf failed to include this alleged error. Since the evidence establishing his guilt was not closely balanced, we consider Anthony Gholston’s contention with regard to this matter as having been waived for review. See People v. Berry (1984), 99 Ill. 2d 499, 503.

       See The Merck Manual of Diagnosis and Therapy sec. 21 at 1768-69 (R. Berkow, M.D., ed. 1977).

      Count 3 of the indictment on which defendant Love was found guilty concerned deviate sexual conduct with a child under the age of 16 years. Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)(2).


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
      In re MARRIAGE OF HARVEY CALDWELL, Petitioner-Appellee, and HELEN CALDWELL, Respondent-Appellant.
    Fourth District
    No. 4—83—0324
    Opinion filed May 7, 1984.
    Modified on denial of rehearing July 5, 1984.

      M.G. Guio & Associates, Ltd., of Streator (Walter L. Stodd and M.G. Guio, of counsel), for appellant.
    Hoffman, Mueller & Creedon, of Ottawa (Melvin H. Hoffman, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This appeal is from an order of the circuit court of Livingston County which provided for a distribution of property following the dissolution of the parties’ marriage. We affirm.

The parties were married on February 23, 1974, and the decree of dissolution was entered upon the counterpetition of respondent on March 25, 1982. The trial court found that at the time of the final order, petitioner was 66 years of age, totally disabled, and respondent was 57 years of age and unemployed, although capable of working. It also found that petitioner had an approximate net income of $900 per month plus some nominal interest income; and that respondent derived approximately $3,000 per year in interest on savings. The parties had stipulated to valuation evidence pertaining to property which respondent was to inherit as a result of her mother’s recent death. The trial judge found the following items to be marital property: (1) a residence (fair market value $59,500), (2) a fishing boat, boat motor, and a 1960 house trailer (value about $1,000), (3) 1978 Pontiac auto (valued at $2,500) and a 1973 Buick auto (value about $500), (4) savings and checking accounts (valued at about $13,000 plus interest) which had been converted by respondent into her name only upon the parties’ separation, and (5) various items of personal property. The court found certain property to be petitioner’s nonmarital property: (1) General Motors and DuPont stock (valued at $1,400), (2) a pension plan ($383.01 per month) and social security benefits ($506 per month), (3) life insurance policies on his life, and (4) his tools, clothes, and listed personal property. The court found certain property to be respondent’s nonmarital property: (1) accounts and certificates of deposit (valued at $13,000 plus interest), (2) a beneficial interest in the estate of her mother (about $100,000 before taxes), (3) about 50 shares of Investors Group (about $400), (4) her life insurance policies, and (5) her clothing and the balance of furniture not otherwise referred to. The trial judge concluded that each party now had sufficient marital or nonmarital assets and income with which to support themselves, and therefore denied the request of each for maintenance from the other. The court found that a portion of the marital savings which presently stood in respondent’s name should be paid over to petitioner.

Respondent first argues that the trial court’s award is an abuse of discretion because the trial court did not award her any interest in the marital home and failed to make findings to justify the property division.

Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act directs the trial court to divide the marital property, without regard to marital misconduct, in just proportions, after considering all relevant factors, including those set out by statute. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) An award in just proportions does not require the trial court to make an equal award (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488), and a reviewing court will not substitute its judgment for that of the trial court unless an abuse of discretion has been shown; such an abuse will be found only where no reasonable man would adopt the position of the trial court. (In re Marriage of McDonald (1983), 113 Ill. App. 3d 116, 446 N.E.2d 559.) Merely because the trial court has awarded a larger share of the marital estate to one party does not necessarily demonstrate an abuse of discretion. A disproportionate award of marital property has been upheld where one party made substantial contributions during the marriage and the other party made few contributions (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065), where one party had severe medical problems requiring a larger share for her support (In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283), and where one party had substantial nonmarital holdings and a greater opportunity for future acquisition of assets and income (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465). We conclude that the award was not an abuse of discretion. Respondent’s greater amounts of nonmarital assets, her capability of employment, and petitioner’s total disability and lack of significant nonmarital funds supports the trial court’s award.

We also reject the respondent’s argument that the trial court must make specific findings as to the reasons for its award. We find that the evidence presented at the hearings justifies the award and provides an adequate basis for us to review the property division. In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.

The largest marital asset of the parties was their house, which was originally purchased for $27,000. At the time of the dissolution, the house had a fair market value of $59,500. The funds for this house were derived from a sale of petitioner’s former residence but the closing occurred shortly after the parties were married. The funds for the purchase of the real estate were placed in a joint checking account and payment was then made by check to the seller. The trial court found the real estate to be marital property and awarded the home to petitioner. Section 503(d)(1) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(1)) mandates that the court, on dissolution, divide the marital property in just proportions considering all relevant factors, including among those the contribution of each party to the acquisition of the property. Testimony adduced tended to show that the house in question had been purchased with the proceeds of the sale of petitioner's former home, nonmarital property. The proceeds were placed briefly in a joint account before being applied to the purchase price of the house in question. No substantial improvements had been made in this house during the marriage.

Petitioner argues on appeal that the trial court’s award was not an abuse of discretion whether the house is considered marital or non-marital but suggests that the court should have found the home to be a nonmarital asset and assigned it to him. Where nonmarital funds are commingled with marital property -or placed in joint tenancy, a presumption of gift arises which can only be rebutted by clear, convincing, and unmistakable evidence that no gift was intended. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) The trial court made no finding on whether the presumption of gift was rebutted by clear, convincing, and unmistakable evidence, and we are loathe to pass upon this without its initial determination of the weight and value of the evidence submitted. Since we find that the award is proper regardless of whether the house is determined to be marital or nonmarital property, we decline to pass upon this issue.

Respondent next asserts that the trial court failed to give sufficient consideration to her services as a homemaker in making the award of marital property. (Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(1).) During the final hearing on property matters, petitioner was asked to describe respondent’s housekeeping duties during the marriage. Respondent objected to this question on grounds of relevancy, the objection was sustained, and in the course of giving reasons for its ruling, the trial court stated that “I don’t think Mrs. Caldwell’s housekeeping duties and abilities are the reasons or part of the reasons being advanced that she should be entitled to maintenance, I think this is a question of assertion of maintenance based on need primarily.” We note that the remarks about which respondent now complains were made in response to her objection. Respondent cannot now complain on appeal of the trial court’s ruling which was occasioned by her objection. (Brichacek v. Hampton (1964), 54 Ill. App. 2d 284, 203 N.E.2d 737; Silbert v. Laser (1940), 307 Ill. App. 484, 30 N.E.2d 774.) The trial court’s statement does not indicate that respondent’s homemaking services were not considered in awarding marital property but only in considering the issue of maintenance. The value of a party’s contribution as a homemaker is irrelevant in considering an issue of maintenance. (Ill. Rev. Stat. 1981, ch. 40, par. 504.) This case is not like In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146, cited by respondent, where the issue before the court was the appropriate disposition of marital property and the trial court remarked that it was not interested in the wife’s cooking, cleaning, laundering, and dusting.

Respondent also contends that the trial court had insufficient evidence of the value of nonmarital property assigned to her to make a property award and suggests that we remand this case for further proceedings. The record indicates that hearings on property issues came before the trial court on April 28, 1982, and June 16, 1982; on January 10, 1983, a motion to reopen evidence was also heard and allowed. At the last hearing the parties stipulated to the death of respondent’s mother and to the admission of appraisals of real estate and an inventory of probate and nonprobate assets. It was represented to the court that respondent took a one-seventh interest in 148 acres of farmland (although her brief indicated a one-fifth interest) valued in total at $267,840. Respondent was further to receive an undivided one-quarter interest in her mother’s estate, shown as having assets in excess of $120,000. The exhibits also listed certain assets which had been held in joint tenancy between respondent and her mother, valued at more than $30,000. At that time the trial court indicated that “I think with this information I can make a determination unless, Mr. Stodd [respondent’s attorney], you know of some additional evidence.” Counsel responded that he knew of nothing and the matter was then submitted for decision. Respondent now takes the position that the court had insufficient evidence of value in the record and that the cause should be remanded to determine the amount of debts and expenses of administration of the estate.

There is no requirement under the Illinois Marriage and Dissolution of Marriage Act that the trial court place specific values on property awarded to the parties, but where evidence of value is not in the record, no means exist for the appellate court to review the trial court’s exercise of discretion. Thus, reviewing courts have repeatedly emphasized that there must be competent evidence of value of both nonmarital and marital assets in the record. (In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302; In re Marriage of Hapaniewski (1982), 107 Ill. App. 3d 848, 438 N.E.2d 466; In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96.) However, we recently noted in In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 458 N.E.2d 1360, that it is the obligation of the parties to present sufficient evidence of valuation to the trial court and that we will not continue to reverse and remand for further proceedings where the parties have had an opportunity to do so but have failed to offer any proof. Respondent had ample opportunity to present evidence on this issue or to request the court to continue the matter, and was specifically asked if other evidence was warranted. Where, as here, the parties have stipulated to the admission of evidence of valuation, providing some evidence to review the trial court’s exercise of discretion, further proceedings on remand are unnecessary. In re Marriage of Hapaniewski (1982), 107 Ill. App. 3d 848, 438 N.E.2d 466; In re Marriage of Deem (1984), 123 Ill. App. 3d 1019.

Finally, respondent maintains that the trial court erred in ordering her to pay petitioner $7,000, not having stated any reason for such distribution. It is readily apparent from examination of the supplemental judgment of dissolution of marriage that this portion of the order is directed to recompensing petitioner for funds from various savings and checking accounts — which the court found to be marital property — which respondent had converted into her name only, after the parties’ separation. The total funds converted amounted to about $13,000 plus interest.

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

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE HOPF

text:
    DEBRA M. WILKOSZ, Plaintiff-Appellant, v. ROBERT A. WILKOSZ et al., Defendants-Appellees.
    Second District
    No. 83—657
    Opinion filed June 6, 1984.

      Peter D. Michling, of Weisz & Weisz, of Woodstock, for appellant.
    Thomas E Loizzo, of Kell, Conerty & Poehlmann, of Woodstock, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

This case concerns the doctrine of parent-child tort immunity and raises the question of whether the immunity should bar a negligence claim brought by an 18-year-old against her father. Debra M. Wilkosz, plaintiff, alleged that the negligence of her father, Robert A. Wilkosz, defendant, caused an automobile collision which resulted in her sustaining severe and permanent injury. Defendant moved for summary judgment contending that there was no genuine issue as to any material fact. The circuit court of McHenry County granted summary judgment as to those counts directed against defendant Wilkosz and plaintiff appeals.

Plaintiff raises the following issues on appeal: (1) whether the doctrine of parent-child tort immunity applies only to unemancipated minor children; (2) whether the factual situation in the present case fits within the “beyond the family purpose” exception to the parent-child tort immunity doctrine; (3) whether questions of fact existed which make the imposition of summary judgment inappropriate; (4) whether the doctrine of parent-child tort immunity should be abolished in Illinois; and (5) whether summary judgment was improperly granted because the parent-child tort immunity does not bar actions based on wilful and wanton conduct.

It was a dark and snowy night when defendant drove to pick up his daughter from her part-time job at Kentucky Fried Chicken near Crystal Lake, Illinois. At approximately 8:15 p.m. on January 12, 1982, defendant and his daughter proceeded to McHenry Jr. College to pick up defendant’s son, Richard. Because Richard was not ready to leave school, plaintiff and defendant headed back to Crystal Lake. According to plaintiff’s deposition, they were going to pick up Richard later, at about 9 p.m. While driving down snow-covered U.S. Route 14 in Crystal Lake, plaintiff and defendant were involved in a collision with another vehicle. Plaintiff does not remember any details of the accident and only remembers waking up in the hospital after-wards. Plaintiff was 18 years of age at the time of the accident.

Plaintiff’s suit alleged in counts I and II that her father’s negligence caused her to sustain severe and permanent injury. Count III of the complaint was directed against the driver of the other vehicle involved in the collision, Vernon L. Welge, Jr. Plaintiff’s claim against Welge has been stayed pending this appeal. Welge brought suit against defendant herein in the related case of Welge v. Wilkosz. Defendant in the instant case filed a motion to dismiss, alleging the family, or parent-child, tort immunity doctrine barred actions for negligence between parents and children when the complained of conduct arises out of a family relationship and is directly connected with family purposes and objectives. Defendant argued that the complaint failed to make any affirmative allegation of facts to show that plaintiff’s injury arose from any activity outside of the family relationship. Plaintiff’s request for leave to amend was granted.

Plaintiff then amended her complaint to include the following language:

“b. Defendant, ROBERT A. WILKOSZ, prior to the occurrence complained of, had just picked up Plaintiff at her place of employment and was in the process of transporting her to her home; Plaintiff’s employment was not family-related and thus was outside the family relationship.”

Defendant subsequently moved for summary judgment. In support of the motion he attached excerpts from plaintiff’s deposition in this case and his own deposition in Welge v. Wilkosz. Plaintiff had stated that her dad picked her up from work and they went to her brother’s school and found he was unable to get out of school early. She stated that she did not know where they were going at the time of the accident-just that they were going to Crystal Lake and were going to return to pick up her brother at 9 p.m. The excerpt from defendant’s deposition iterated a similar scenario. After finding out that his son, Richard, did not get out early because of the snow conditions, plaintiff and defendant turned back toward Crystal Lake. Defendant did not know if they were going home or what they were going to do until they picked up Richard.

Plaintiff then filed a second amended complaint, which alleged in count I, inter alia, that defendant was engaged in an activity outside the family relationship in that he was “engaged in a project unrelated to her [plaintiff, namely picking up the brother to take him from school to his residence; ***.” The complaint again alleged that plaintiff’s employment was “not family-related and thus was outside the family relationship.”

Defendant then amended his motion for summary judgment so as to include complete copies of the depositions of plaintiff and defendant. Plaintiff’s deposition revealed that she had no recollection of how the accident occurred except that the rear of the car fishtailed briefly. In the remaining portion of the deposition she detailed the extent of her injuries. Defendant’s complete deposition was not made part of the record on appeal. Without comment, the trial court found no genuine issue as to material fact and granted defendant’s motion for summary judgment on both counts. Plaintiff’s motion to consolidate this cause with Welge v. Wilkosz was denied. The trial court found no just reason to delay enforcement or appeal. 87 Ill. 2d R. 304(a).

Plaintiff’s first contention on appeal is that the parent-child immunity doctrine applies only to unemancipated minor children. She contends that the tort immunity rule does not apply to her because she is emancipated. However, her argument that she is emancipated turns solely on the fact that she was 18 at the time of the accident. We believe that, for purposes of the parent-child immunity doctrine, age is but one of the factors to be considered in determining whether an individual is emancipated.

Plaintiff argues that Illinois statutory law provides that a “person who has attained the age of 18 years is of legal age for all purposes except as otherwise provided in the Illinois Uniform Gifts to Minors Act.” (Ill. Rev. Stat. 1979, ch. 1101/2, par. 11 — 1.) Plaintiff urges that because she was 18 at the time of the accident she was an adult and, therefore, the parent-child immunity doctrine does not apply. We disagree. The question presented in this case is not whether plaintiff is an adult or a minor, but whether she is emancipated from her parents. The above-quoted statute is found in the Probate Act of 1975, which is not in issue here.

The main case cited by plaintiff in support of this proposition is Waldron v. Waldron (1973), 13 Ill. App. 3d 964, 301 N.E.2d 167. However, Waldron concerned the question of whether a father was required to continue making support payments to his son even though the legislature had reduced the age of majority from 21 to 18 years of age. (Ill. Rev. Stat. 1971, ch. 3, par. 131.) Waldron was merely concerned with whether the son was a “minor,” not whether he was emancipated. Waldron does not support plaintiff’s contention.

The case law which has considered the issue of what constitutes “emancipation” does not stress the age of the child as a determinative factor. For example, in State Farm Mutual Automobile Insurance Co. v. Differding (1977), 46 Ill. App. 3d 15, 360 N.E.2d 522, rev’d on other grounds (1977), 69 Ill. 2d 103, 370 N.E.2d 543, the court considered the question of what constitutes “emancipation” without mentioning the age of the party. The Differding court considered the question so as to determine whether a daughter qualified for automobile liability insurance coverage under her family insurance policy. The daughter had subleased an apartment and was in graduate school at Northern Illinois University in DeKalb. Nonetheless, the court held, she was unemancipated and did qualify as a resident of the parents’ household. After discussing the question of who was responsible for the ambiguity created by the policy language “unemancipated children” the court stated:

“Even without the rule of construction in favor of insured persons and against insurance companies the same result would be reached. Along with the Illinois appellate court in Waldron the Illinois legislature recognizes parental rights and duties as to children who have reached the age of majority. By State statute the county circuit court may order payments for support of a child whether of minor or majority age. (Ill. Rev. Stat. 1973, ch. 40, pars. 14, 19.) The law in Illinois is in accord with the common law and the common understanding of the term. The test is not the age of the child but whether there is an entire surrender of the right to care, custody and earnings of such child as well as a renunciation of parental duties.” (Emphasis added.) (State Farm Mutual Automobile Insurance Co. v. Differding (1977), 46 Ill. App. 3d 15, 20, 360 N.E.2d 522, 525-26.)

The court noted that the most important circumstance in making a determination of whether the daughter was unemancipated was that she maintained a permanent residence with her family during her enrollment at the school. While Differding was concerned with construing an insurance policy, we believe it is persuasive authority for defining what constitutes emancipation for purposes of parent-child immunity.

The parent-child immunity doctrine, or as it is sometimes called the parental immunity doctrine, has generally been held to mean that the child may not recover damages for injuries sustained due to the parents’ ordinary negligence, in that a parent is not liable absent wilful and wanton misconduct. The doctrine was first recognized in Illinois in the case of Foley v. Foley (1895), 61 Ill. App. 577, which established the principle that a parent is immune from recovery for injuries sustained in the exercise of family rights. This principle has been consistently applied since Foley, though exceptions have been created, as, for example, the situation where the immunity was found to have been dissolved by the death of the parent from whom a minor sought relief. (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778.) The purpose of the doctrine is founded in a policy in Illinois to promote an atmosphere of cooperation, discipline and understanding in the family. The justification for the rule is that the courts are reluctant to create litigation and strife between members of a family unit. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 619, 131 N.E.2d 525, 531.) That policy is not set forth in detail here, but was discussed in full in the case of Mroczynski v. McGrath (1966), 34 Ill. 2d 451, 216 N.E.2d 137.

While certain exceptions to the parental immunity rule have been created, the rule was recently affirmed by a majority of our supreme court. The court held that teachers in the school system stand in the place of a parent or guardian in matters relating to discipline, in the absence of wilful or wanton misconduct. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) The Kobylanski court determined that the immunity conferred on teachers under the tort immunity act was not derived from statute but from a legislative determination that the teacher stands in the place of the parent or guardian in matters relating to discipline.

Defendant contends that the question of what constitutes emancipation is a question of fact for the trier of fact to determine. This particular point was also addressed in the case of State Farm Mutual Automobile Insurance Co. v. Differding (1977), 46 Ill. App. 3d 15, 20, 360 N.E.2d 522, 525, rev’d on other grounds (1977), 69 Ill. 2d 103, 370 N.E.2d 543, where the court stated that what constitutes an emancipation is a question of law, but whether there has been an emancipation is a question of fact. Thus defendant’s contention that solely because she reached the age of 18 she is emancipated is a legal, not factual, question. Rather, the facts and circumstances surrounding the emancipation would be a question of fact. This would include questions of residency, marital status, and such considerations as one’s address on a driver’s license.

Simply stated, our review of the policy underlying the parental immunity doctrine leads to the conclusion that age is not the sole determinative factor in defining what constitutes an emancipation. The parental immunity doctrine has as its basis a policy of trying to avoid litigation and strife between members of the family unit. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 619, 131 N.E.2d 525, 531.) One does not necessarily lose his status as a member of a family unit simply by reaching the age of 18. Other considerations must be taken into account. For example, in Zozaski v. Mather Stock Car Co. (1942), 312 Ill. App. 585, 38 N.E.2d 825, a self-supporting son was considered “emancipated” in light of the fact that he was self-supporting and despite the fact that he was a minor.

The public policy which underlies the parental immunity doctrine remains equally valid when the child reaches the age of majority. Thus, in the case at bar, the fact that plaintiff was I8V2 years old does not necessarily mean she is emancipated. Rather, in light of the policy reasons underlying the parental immunity doctrine, age is only one of the many considerations that, taken as a whole, determine whether one is emancipated.

In the second issue plaintiff raises on appeal, she assumes, ar guendo, that her age is not a bar to application of the parental immunity doctrine. Plaintiff’s contention is that the factual situation presented in this case fits within the “beyond the family purpose” exception to the doctrine of parental immunity. We disagree.

The uncontroverted evidence in this case is that defendant picked up plaintiff from work and was driving to Crystal Lake, where they lived, at the time of the accident. Both parties stated they were going to return to school within an hour to pick up plaintiff’s brother. This situation clearly shows that the parties’ conduct was directly connected with family purposes and objectives.

Plaintiff contends that the instant case parallels the facts and rationale set forth in the case of Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12. Schenk was a suit by a father against his 17-year-old, unemancipated daughter for injuries sustained by him when she negligently ran into him with a car on the streets of Bloomington. The Schenk court found that the complaint did not suggest in any manner that the father who was crossing the street or the unemancipated daughter in operating the car were “to any extent performing a duty arising out of the family relationship or engaged in any enterprise having for its purpose the furtherance of the family relationship.” (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 203, 241 N.E.2d 12, 14.) Thus, the Schenk court found that plaintiff’s complaint did state a cause of action for tortious conduct having no direct family relationship. A similar analysis was made by the court in Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127, which allowed a minor child to bring suit against her mother for her negligent failure to maintain the trees on the area immediately adjacent to the home. However, both Cummings and Schenk focused on the duty owed by the alleged tortfeasor. Because that duty was owed to the general public, and because the activity the parties were engaged in did not arise out of the family relationship, the family purpose exception was applied and the minor child was allowed to bring a claim against his or her parents. However, in the instant case, as discussed above, the facts show that the parties were engaged in activity which constituted a family purpose.

The parental immunity doctrine was applied in the recent case of Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 435 N.E.2d 770. In Hogan the plaintiff was an unemancipated minor child who was injured on her way home from a piano lesson. Her mother was driving the vehicle at the time of the accident. The court held that the defendant was operating the motor vehicle to accomplish a family purpose and that she, therefore, was immune from her daughter’s suit. The facts of Hogan closely parallel those of the instant case.

The pleadings, depositions and record in the instant case show that defendant and plaintiff were engaged in conduct which arose from and had a “direct connection with the family relationship.” (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 206, 241 N.E.2d 12, 15; Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 237, 403 N.E.2d 1256, 1258.) Therefore, the parties’ activities did not fall within the “beyond the family purpose” exception.

Plaintiff’s next contention on appeal overlaps with that just discussed. She contends that different inferences may have been drawn from the facts of this case such that, with regard to the “beyond the family purpose” exception, summary judgment was inappropriate. We disagree. The record of this case, as previously described, shows that the parties’ conduct was directly connected with a family purpose, i.e., picking up a daughter from work and a son from school. Although plaintiff and defendant both indicated that they were “not sure” if they were going home or elsewhere at the time of the accident, there was no factual dispute presented so as to preclude imposition of summary judgment.

Plaintiff next contends that the doctrine of parent-child tort immunity should be entirely abolished. While the State has an interest in maintaining harmony and avoiding strife in the family, she urges, the doctrine lacks societal merit or benefit when applied. In support of this contention, plaintiff’s peregrinations include a discussion of what policies should prevail if insurance coverage is available. While, as a practical matter, the existence of insurance may have an effect on a case which is difficult to measure, we have consistently stated that the existence or nonexistence of protective insurance is not a sound basis for the determination of liability. (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 205, 241 N.E.2d 12, 14; Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 107, 435 N.E.2d 770, 772.) Thus, the existence of insurance is not a relevant concern in weighing the policy considerations of the parental immunity doctrine. Additionally, we believe the parental immunity doctrine should remain the accepted policy in Illinois. Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778.

Plaintiff’s final contention on appeal is that summary judgment was improperly granted with regard to the second count of the complaint which alleged wilful and wanton conduct. On this point, the parties are in agreement that the parental immunity doctrine does not bar actions based on wilful and wanton conduct. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525; Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.) Plaintiff contends that defendant received a traffic ticket as a result of the incident and that the undisputed facts clearly support the inference that defendant was driving his vehicle in a manner contrary to what would be considered reasonable under the conditions. Thus, she contends, there is a factual question as to whether defendant’s behavior was wilful and wanton. We disagree. Plaintiff’s contention that the defendant was not driving in a manner “reasonable for the snowy conditions” falls short of showing facts sufficient to allege wilful and wanton misconduct. Wilful or wanton conduct has been described as “a course of action which shows an actual or deliberate intention to harm or injure another; as an intentional disregard of a known duty which is necessary to the safety of others or to their property; and as an act committed under circumstances exhibiting a reckless disregard for the safety of others.” (Glaze v. Owens (1968), 104 Ill. App. 2d 172, 176, 243 N.E.2d 13, 15.) The record does not support plaintiff’s contentions that defendant’s conduct was wilful and wanton. Summary judgment must be rendered if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) Defendant here supported his motion with the depositions of both plaintiff and defendant. From these depositions and the pleadings we find that the record supports the trial court’s determination that there was no genuine issue of material fact. The granting of summary judgment as to counts I and II of plaintiff’s complaint is affirmed.

To summarize, the cases which discuss the parental immunity doctrine indicate that age is but one of the considerations in determining emancipation. We agree with the trial court’s determination that the defendant was operating the motor vehicle to accomplish a family purpose and that he is, therefore, immune from suit. The cases in Illinois do not support plaintiff’s argument that the doctrine of parent-child tort immunity should be abolished in Illinois. Further, the trial court properly granted summary judgment.

For the reasons stated, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

NASH and UNVERZAGT, JJ., concur.