author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD LEE KAMP, Defendant-Appellant.
    Third District
    No. 3—84—0336
    Opinion filed March 27, 1985.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Ronald Lee Kamp, appeals from his conviction of felony murder. The defendant was first convicted in 1981 of murdering Morristine Calmes. This conviction was reversed on appeal and remanded for retrial. The defendant was again convicted of Calmes’ murder on April 4, 1984, following a bench trial. The trial court sentenced the defendant to 20 years’ imprisonment.

The victim’s body was found by Kankakee police officers on August 2, 1980. The body was face down in a pool of water in a drainage ditch. The pool of water was estimated to be 10 inches deep. The drainage ditch traversed a small park.

The Kankakee police were summoned to the scene by Carleton and Margaret Koch. The Koch’s home was located next to the park. At approximately 2:20 a.m. on August 2, 1980, the Kochs were awakened by the sound of a woman screaming. They also heard her moan “Oh my God.” Mr. Koch immediately called the police while Mrs. Koch kept watch at the bedroom window. This window looked out onto the park. By the time Mr. Koch returned to his bedroom, a police car was already approaching the park.

Kankakee police officer Lieutenant Floyd Reynolds was conducting a security check of a grammar school located two blocks from the park. He received a call to go to the park. As he was driving through the area, Mr. Koch emerged from his home and flagged the lieutenant. As Reynolds and Mr. Koch were standing in the Koch’s driveway talking, Mr. Koch noticed a man hiding behind a tree in the park. At the same time, Mrs. Koch called from the window that a man was crouching behind the tree.

Lieutenant Reynolds returned to his car and drove toward the point where the man was standing. The man then began to run. Reynolds pursued him by car but lost him among nearby homes. Reynolds then returned to the Koch home. By this time, both Mr. and Mrs. Koch had noticed a bicycle lying in the park. Reynolds walked into the park with Mr. Koch. The two men sighted the victim’s body lying in the water at the bottom of the drainage ditch. Reynolds went to the body and drew the victim’s face out of the water. He felt for a pulse but found none. He then radioed for assistance. Reynolds estimated that five to six minutes elapsed between the time he saw the man in the park and the time he located the body.

Both Mr. and Mrs. Koch identified the man they saw in the park as the defendant. The defendant lived near the Kochs. Mr. Koch also identified the bicycle found in the park as belonging to the defendant.

Consequently, at approximately 3 a.m., Kankakee police officers arrested the defendant in his home. At the time of his arrest, the defendant’s hair and underwear were wet. The officers found clothing matching that described by Reynolds and the Kochs as the apparel of the man in the park. This clothing was also wet.

The State presented the testimony of forensic pathologist Dr. Edward Shalgos. Shalgos testified that the victim’s death was caused by drowning.

The defendant raises three issues on appeal. He argues first that the State failed to prove the corpus delicti beyond a reasonable doubt and that the defendant caused the victim’s death. To establish the corpus delicti the State must prove the death of the victim and that the death was caused by a criminal agency. The State must additionally prove that the defendant was that criminal agency. People v. Wilson (1948), 400 Ill. 461, 81 N.E.2d 211.

The defendant argues that the State failed to prove that Calmes’ death was caused by a criminal agency.

Circumstantial evidence may be used to prove corpus delicti. People v. Hansen (1963), 28 Ill. 2d 322, 192 N.E.2d 359, cert, denied sub nom. Spilotro v. Illinois (1964), 376 U.S. 908, 11 L. Ed. 2d 608, 84 S. Ct. 664.

In the instant case, Calmes’ brother and sister testified that they saw her on the night of her death. Calmes was healthy and active just hours before she died.

Dr. Shalgos testified regarding the condition of Calmes’ body at the time of the autopsy. Shalgos stated that there was no disease or trauma found during the autopsy which would have caused Calmes to collapse into the drainage ditch. Shalgos further testified that the physical evidence showed that Calmes was attempting to breathe even as she was drowning. This was shown by the significant hemorrhaging of small blood vessels in the victim’s head and by the fact that the victim swallowed and regurgitated water from the ditch. Shalgos testified that the body of a person who drowned while unconscious would not have the massive, explosive changes he found in Calmes’ body. It was Shalgos’ opinion that this medical evidence demonstrated that the victim’s face was forcibly held in the water while she was still alive and vigorous.

The defendant asserts that the testimony of Dr. James Blanding created a reasonable doubt that the victim had been forcibly drowned. However, Dr. Blanding acknowledged both that he was not a forensic pathologist and that he never examined the body. Blanding clearly stated that he could not determine whether the drowning was accidental or the result of a homicide.

The victim’s collapse could not be explained as the result of illness or trauma. Dr. Shalgos presented medical evidence indicating that the victim was actively trying to inhale air while she was taking in water. Given this unrebutted evidence, we find that the State proved the corpus delicti beyond a reasonable doubt.

The defendant further argues that the State failed to prove that he was the criminal agency which caused the victim’s death. We find no merit in this argument. The defendant was identified by witnesses as being present in the park at approximately the time of the victim’s death. He was in the park during the early morning hours. He was the only person observed in the park. He was seen coming up from the ditch where the victim was found. When arrested, the defendant’s hair and discarded clothing were wet. This evidence was more than sufficient to establish that it was the defendant who caused the victim’s death.

The defendant’s second argument on appeal is whether the State proved that the offense occurred on or about a public way or property. The defendant was charged with felony murder. The underlying felony was aggravated battery as set forth in section 12 — 4(b)(8) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(b)(8).) That section defines aggravated battery, in relevant part, as a battery occurring on or about a public way or public property.

The defendant asserts that because no evidence as to the ownership of the park was presented, the State failed to prove the element of public way or public property. In effect, the defendant argues that the term “public” in section 12 — 4(b)(8) must be construed to mean owned by a public entity.

However, the courts of Illinois have not interpreted the language of section 12 — 4(b)(8) so narrowly. The court in People v. Ward (1981), 95 Ill. App. 3d 283, 419 N.E.2d 1240, found that the essence of a charge under section 12 — 4(b)(8) is that a battery occur in a public area. The court continued: “[w]hether the property was actually publicly owned and, therefore, ‘public property’ rather than a privately owned ‘public place of accommodation’ is irrelevant; what is significant is that the alleged offense occurred in an area accessible to the public.” 95 Ill. App. 3d 283, 287-88, 419 N.E.2d 1240,1244.

In the instant case, the evidence clearly established that the park where the victim was killed was open to the public. Mrs. Koch testified that neighborhood children played there. Officer Reynolds testified that the park was open to the public until closing time each evening. The State proved the statutory elements of the underlying felony of aggravated battery.

The defendant’s final argument on appeal is that the trial court erred in allowing evidence that the victim’s anus had been penetrated. The defendant asserts that this evidence was improper because it constituted evidence of another crime, deviate sexual assault, with which the defendant was not charged.

Evidence of other offenses is admissible only if relevant for some purpose other than to show propensity to commit a crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) In deciding whether to admit evidence of another crime, the trial judge must balance the relevancy of the evidence offered against its tendency to inflame or prejudice the trier of fact. People v. Bailey (1980), 88 Ill. App. 3d 416, 410 N.E.2d 545.

We initially reject the defendant’s final argument because we find that the evidence of anal penetration did not constitute evidence of another offense. Dr. Shalgos testified that there was no evidence as to whether the victim consented to the penetration. There was no evidence of use of force or injury to the victim. Similarly, there was no evidence that linked the defendant to the object used in the penetration.

However, even if we consider evidence of the penetration to be evidence that the defendant sexually assaulted the victim, we find that the evidence was properly admitted. Dr. Shalgos testified that the penetration occurred just prior to death as evidenced by the physical state of the •anus. The defendant attempted to elicit testimony from Shalgos and Dr. Blanding that the victim had been dead for some time before her body was discovered. If the evidence of penetration is proof of deviate sexual assault by the defendant, then the evidence was relevant to establish that the victim was still alive when she was with the defendant. This relevancy outweighed any prejudice to the defendant.

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

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY L. TURNER, Defendant-Appellant.
    Third District
    No. 3—84—0553
    Opinion filed March 27, 1985.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Roy L. Turner, was convicted of the offense of burglary following a bench trial. The trial court sentenced the defendant to a three-year term of imprisonment. On appeal, the defendant challenges only his sentence.

The defendant raises two issues in connection with the Dangerous Drug Abuse Act (hereinafter the Act) (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.1 et seq.). He argues first that the trial court erred in failing to advise him of his eligibility for treatment under the Act. Section 10 of the Act (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.10) requires a trial judge to inform every defendant whom the judge knows or has reason to believe is an addict of the possibility of treatment under the Act. People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.

In the instant cause, the trial court was aware of the defendant’s abuse of alcohol. The trial court was required to inform the defendant under section 10. We find, however, that the trial court’s failure to so inform the defendant was harmless error.

The defendant’s sentencing hearing was originally set for July 27, 1984. During the proceedings on that date, trial counsel for the defendant requested a continuance. One of the grounds for the request was that counsel was attempting to obtain the consent of the Prison Review Board to have the defendant sentenced under the Act. Counsel had already gained the consent to treatment under the Act from the defendant’s probation officer. The continuance was granted. The defendant was subsequently sentenced on August 17,1984.

It is clear from the record that counsel for the defendant was aware of the defendant’s eligibility for treatment under the Act prior to the imposition of sentence. As the court stated in Richardson, the purpose of section 10 is informational. (104 Ill. 2d 8, 16, 470 N.E.2d 1024, 1028.) Where the defendant is clearly aware of his eligibility for treatment, and is in fact proceeding under the Act, it is not reversible error when the court fails to inform a defendant under section 10 of the Act.

The defendant’s second argument on appeal is that the trial court erred in failing to consider treatment under the Act as a sentencing alternative. We find no error. It is well established that a defendant seeking to be sentenced under the Act must petition to elect treatment. People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323.

In the instant cause, the defendant did not petition for treatment. Contrary to the defendant’s assertion, the mere statement by counsel that he was seeking approval of the Prison Review Board and of his probation officer does not constitute a petition under the Act.

Similarly, the defendant did not affirmatively show that he was not disqualified under section 8 of the Act. (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.8.) Upon petitioning for treatment, defendant must affirmatively show that he is not disqualified under section 8 from eligibility for treatment. (People v. Berry (1983), 118 Ill. App. 3d 1024, 455 N.E.2d 868.) One of the grounds for disqualification under section 8(e) is that the defendant is on probation and the appropriate probation authority does not consent to the election. Thus, under Berry and the decisions cited therein, a defendant on probation seeking to be considered for treatment under the Act must show the consent of his probation officers. No such showing by the defendant is found in the record.

Therefore, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE STOUDER JUSTICE SCOTT,

text:
    STATE EMPLOYEES’ RETIREMENT SYSTEM OF ILLINOIS, Plaintiff-Appellee, v. JOHN E. TAYLOR, Defendant-Appellant (Frances A. Arnold et al., Defendants-Appellees).
    Third District
    No. 3—84—0283
    Opinion filed March 21, 1985.
    SCOTT, J., dissenting.
    Chris D. Rouskey, of Rouskey & Surinak, of Joliet, for appellant.
    Daniel J. Kalian, of Kalian & Kelly, of Joliet, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

On August 25, 1983, the State Employees’ Retirement System of Illinois filed a complaint in interpleader in the circuit court of Sangamon County. A fund was deposited with the circuit court pursuant to the complaint, in the amount of $34,200.17, payable by the Retirement System by reason of the death of Daphne D. McReynolds, a member of the system. Named as adverse claimants to this fund were John E. Taylor and Frances A. Arnold. After a motion for transfer of venue to the circuit court of Will County was granted, the plaintiff was dismissed from the case, and both adverse claimants filed motions for summary judgment, each of which urged their respective entitlement to the fund. The circuit court granted the summary judgment motion of Frances A. Arnold, and denied the summary judgment motion of John E. Taylor. Mr. Taylor appeals.

During the time period from November 1, 1960, to March 11, 1983, Daphne D. McReynolds was a member of the Retirement System and made contributions thereto. As a result of this membership and these contributions, the Retirement System became obligated to pay the appropriate beneficiary a nonoccupational death benefit in the amount of $34,200.17 upon the death of Daphne D. McReynolds on March 11, 1983. The identity of this appropriate beneficiary is a matter of dispute between the claimants, Taylor and Arnold.

On March 15, 1971, the Retirement System received from McReynolds a request for change of beneficiary nominating the claimant Taylor as beneficiary. This request was executed by McReynolds on the form provided by the Retirement System, and duly acknowledged by a notary public.

On October 25, 1982, the Retirement System received from McReynolds a letter concerning the beneficiary designation currently filed with the Retirement System. The letter read as follows:

“Dear Sirs,
I see by my yearly benefits’ paper that my beneficiary is still John Taylor. I would like to change my beneficiary to Mrs. Frances Arnold, 1112 Sterling Ave., Joliet, Illinois 60433.
Sincerely,
Daphne McReynolds.”

In response to this correspondence, on November 5, 1982, the Retirement System sent McReynolds a change of beneficiary form and the following letter:

“Dear Ms. McReynolds,
In compliance with your recent request, we are enclosing a change of beneficiary form (RS101). If you have any questions regarding completion of the form, please feel free to contact our office.
Very truly yours,
Sally Henderson Administrative Services Division.”

The change of beneficiary form was never returned to the Retirement System, and, as stated earlier, McReynolds died several months later.

Both Taylor and Arnold filed applications for the death benefit payable as a result of McReynolds’ death. The Retirement System, unable to determine which of the adverse claimants was entitled to the death benefit, sought by this action to require the claimants to interplead, each with the other, to determine their respective rights in the $34,000 fund.

In support of her claim to the death benefit, Arnold filed a motion for summary judgment accompanied by affidavits and various documents. Those materials establish that Arnold is the natural daughter of the decedent, McReynolds, and that Taylor was not related to McReynolds in any manner. Taylor was associated with McReynolds as a creditor, for on February 2, 1971, he lent the decedent $4,300. As security for this loan, Taylor was made beneficiary of McReynolds’ death benefits. Further, according to Arnold’s motion for summary judgment, the decedent planned to sell her home located at 510 East Washington Street, Joliet, to repay the 1971 loan from Taylor. The loan was not repaid, but on February 18, 1971, McReynolds conveyed the same real estate to Taylor by warranty deed. The deed was prepared by attorney H. Arthur Hammel and, according to the document, was mailed to attorney Hammel after recording. The deed to the Washington Street property did not bear any notation indicating that real estate transfer tax had been paid as a result of the conveyance from McReynolds to Taylor, nor did the deed bear any representation on the face of the instrument that the conveyance was exempt from real estate transfer tax.

The remaining materials in support of Arnold’s motion for summary judgment carry a veiled implication of skullduggery. Specifically, later in 1971, on October 13, the decedent, McReynolds, filed a petition for bankruptcy in the United States District Court. The petition was filed on her behalf by attorney Hammel. Taylor was listed as a creditor on the bankruptcy petition. Two months later McReynolds was discharged in bankruptcy, and her debt to Taylor was likewise discharged. The following year, Taylor conveyed the Washington Street property to a land trust with himself and attorney Hammel as beneficiaries. The deed in trust, like the earlier deed from McReynolds to Taylor, did not bear any notation that real estate transfer taxes were paid as a result of the conveyance, nor any representation that the conveyance was exempt from real estate transfer tax. Two years later, in 1972, Taylor assigned his beneficial interest in the land trust to attorney Hammel.

The affidavit and exhibits supporting Taylor’s motion for summary judgment establish that the procedures for changing the beneficiary designation with the Retirement System are set forth in the change of beneficiary form mailed to McReynolds on November 5, 1982. The written instructions accompanying that form provide that a member desiring to change beneficiaries must complete the form and that the form on file with the Retirement System having the most recent date will take precedence in determining the applicable beneficiary designation. The form on file with the Retirement System bearing the most recent date was the March 15, 1971, form nominating Taylor as beneficiary.-

The circuit court of Will County, considering the motions for summary judgment and the respective materials supporting those motions, determined that there was no material issue of fact in dispute between the claimants, and that as a matter of law, Arnold was entitled to the death benefit fund. The claimant Taylor has appealed, urging that as a matter of law the fund properly is payable to him.

Both of the adverse claimants agree that as a general rule, when an insurance policy prescribes a method for changing beneficiaries, that method is exclusive and a change by any other means is ineffectual. (Kniffin v. Kniffin (1983), 119 Ill. App. 3d 106, 456 N.E.2d 659.) The claimant Arnold, however, suggests that the general rule does not apply to the instant facts. In urging an exception to the rule, she cites Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 320-21, 435 N.E.2d 1188,1190:

“Illinois, in accordance with the majority of States, generally only requires that the insured substantially comply with the policy terms [citations], particularly where, as here, the insurer has filed an interpleader action. [Citations.] Requiring the insured to at least substantially comply with the policy provisions ensures that his intent is clearly manifested. But technical compliance with the policy provisions is solely for the benefit of the insurer, to protect it from paying the wrong person and being forced to pay twice. [Citations.] Interpleader protects the insurer from any danger of double liability. Accordingly where interpleader has been filed, it would be unreasonable to use technical requirements to defeat the clear and manifested intention of the insured; rather, the ‘ “*** courts of equity seek to do that which the insured apparently intended to have done. ***” ’ ”

Arnold asserts that the decedent McReynolds’ letter of October 18, 1982, manifests the decedent’s intention to remove Taylor as the beneficiary of her retirement system death benefits.

We agree that in situations where the insurer, in this case the Retirement System, is protected from the danger of double liability, technical policy requirements should not be allowed to frustrate the clear and manifested intention of the insured. Nevertheless, as the claimant Taylor reminds us, certainty of intent alone will not suffice to effect a change of beneficiary. “There must be a combination of intent to make the change and positive action towards effecting that end.” (Dooley v. James A. Dooley Associates Employees Retirement Plan (1982), 92 Ill. 2d 476, 486, 442 N.E.2d 222, 227.) The claimant Arnold suggests that the decedent in fact took positive action toward effecting her intent when she corresponded with the Retirement System and advised it of her desire to change her beneficiary.

Our attention is directed by both claimants to numerous cases which consider the manifestation of an insured’s intent to change beneficiaries and which consider the actions of the insured which constitute substantial compliance to effect that change.

This brings us then to the application of the general principles previously discussed to the facts of this case and in particular to the procedure in the trial court. As noted earlier, each party moved for summary judgment, and the facts supporting such motions have been set forth at length earlier in this opinion. Taylor in his motion claimed that the only legally effective designation of beneficiary was the one filed March 15, 1971, designating him as the beneficiary. According to Taylor, the court erred as a matter of law in refusing to grant his motion for summary judgment and granting Arnold’s motion for summary judgment.

From the authorities discussed earlier it may be concluded the earlier designation of Taylor as beneficiary by McReynolds does not conclusively establish Taylor’s rights to the proceeds where the facts indicate a change in the beneficiary is legally recognizable even though the procedure relating to such change in beneficiary may be technically deficient. We believe the facts set forth in Arnold’s affidavits are sufficient to justify the conclusion that a change of beneficiary occurred even though not completely in accord with the rules and regulations of the Retirement System. None of the facts set forth in Arnold’s affidavits relating to the facts surrounding the change of beneficiary were denied by Taylor. It was Taylor’s position in the trial court, as set forth in his motion and supporting affidavit, and in this court, that, admitting all of the facts set forth by Arnold, nevertheless his prior designation as beneficiary was not changed. We are convinced that the trial court committed no error in holding the facts set forth in the Arnold affidavits were sufficient to constitute a change in beneficiary as between the parties. Both parties in the trial court considered there were no disputed issues of material facts, as shown by the nature of their respective motions for summary judgment. For that reason this case is in a different posture than Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 435 N.E.2d 1188, which on substantially different facts concluded that where only one party had filed a summary judgment procedure the reversal of that motion required a remandment for trial.

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

Affirmed.

HEIPLE, P.J., concurs.

JUSTICE SCOTT,

dissenting:

I respectfully dissent from the disposition of this case as mandated by the majority. They conclude, I believe incorrectly, that since “[b]oth parties in the trial court considered there were no disputed issues of material facts as shown by the nature of their respective motions for summary judgment,” therefore this case is in a different posture than the case before the court in Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 435 N.E.2d 1188. Such a conclusion misapplies the rules which govern our decisions regarding motions for summary judgment.

It is not possible to conclude that no issues of material fact are in dispute based upon the fact that the litigants themselves filed cross-motions for summary judgment.

“The mere filing of cross-motions for summary judgment *** does not establish that there is no issue of material fact, nor does it obligate the court to render summary judgment. [Citation.] The trial court must still independently determine whether a genuine issue of fact exists. [Citation.] Therefore, we do not agree that the nonexistence of a genuine issue of material fact was established by the filing of cross-motions in the case at bar.” (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598, 602.)

Further, even if the facts are undisputed, where reasonable minds might draw different inferences therefrom, summary judgment is improper. Moran v. Aken (1981), 93 Ill. App. 3d 774, 417 N.E.2d 846, 848.

“While inferences may be drawn from undisputed facts, a motion for summary judgment should not be granted unless those facts are susceptible of but a single inference [citation], and if facts admit of more than one conclusion or inference, including one unfavorable to the moving party, a summary judgment should be denied. [Citation.]” (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1017, 436 N.E.2d 598, 603.)

The facts as disclosed in the pleadings, the affidavits, and the exhibits are susceptible of more than one inference, and the appellate court has taken cognizance of these multiple inferences in prior decisions involving similar facts.

There is no dispute among the claimants that Daphne McReynolds corresponded with the Retirement System expressing her desire to change the beneficiary of her policy to the appellee, Arnold. Likewise, there is no dispute that the Retirement System responded by sending McReynolds a change of beneficiary form. Finally, there is no dispute that McReynolds failed to return the appropriate form to the Retirement System from the time she received it until her death, a period of approximately four months.

“[T]he determination of the effect of [such] delay is one for the trier of fact, which must determine how long is a reasonable time for returning the form, and whether any unreasonable delay manifests a change in the insured’s intention or otherwise vitiates the substantial compliance present in [October], Questions as to the effectiveness of a change of beneficiary are generally for the jury [citations], and this case is no exception.” (Travelers Insurance Co. v. Smith (1982), 106 Ill. App. 3d 318, 323, 435 N.E.2d 1188,1191-92.)

While the facts are undisputed, the inferences to be drawn from the facts are not without dispute. It cannot be said, as a matter of law, that McReynolds’ failure to return the change of beneficiary form for a period of four months is a reasonable delay having no bearing on the insured’s intention to nominate Arnold as the beneficiary of the Retirement System benefits. A question of fact exists, or more precisely a question of inferences to be drawn from undisputed facts, and for that reason the summary disposition of this matter in the circuit court was incorrect. I would remand the case for a plenary hearing.


author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOOKER T. BLAKES, Defendant-Appellant.
    Third District
    No. 3—84—0191
    Rule 23 order entered November 30, 1984.
    Opinion filed and rehearing denied April 30, 1985.
    STOUDER, J., dissenting.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Booker T. Blakes, appeals from a jury verdict finding him guilty of unlawful use of weapons. At the conclusion of the State’s rebuttal evidence, the defendant advised the court that he did not feel that his attorney, an assistant public defender, was competently representing him. The trial judge discharged defense counsel at defendant’s request. Another assistant public defender was appointed to prepare and argue a post-trial motion. The motion specifically alleged the ineffectiveness of defendant’s trial counsel. On appeal, the defendant argues that the appointment of an assistant public defender to argue the incompetency of another public defender from the same office created a conflict of interest and constitutes reversible error.

The Illinois Supreme Court has held that a conflict of interest exists when a public defender is put in the position of arguing the incompetency of another public defender from the same office. (People v. Smith (1967), 37 Ill. 2d 622.) The court recognized the disadvantages and inequities which might arise out of the natural inclination of a public defender’s office to protect its own reputation while at the same time trying to perform its duty as an advocate to aid the defendant in establishing his charge of incompetency.

However, the Smith rationale has been held not to apply where a public defender’s office is decentralized and each defender operates as a separate entity. (People v. Puckett (1979), 70 Ill. App. 3d 743.) Because the defendant did not raise the conflict of interest issue in the trial court, the State had no reason to present evidence on the composition and character of the Peoria County public defender’s office. Accordingly, we remand this cause to the circuit court for a supplemental hearing and preparation of an additional record as to the operation of the Peoria County public defender’s office. People v. Robinson (1981), 102 Ill. App. 3d 1.

Cause remanded with directions.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

I disagree with the views of my colleagues, which recall the decision previously filed in this appeal and remand the case for a further hearing in the circuit court. I would adhere to our previous decision unanimously adopted, and I would -deny both the petition of the defendant and that of the State for a rehearing. In our former decision we held that where the competency of trial counsel, an assistant public defender, was raised during the trial and at the post-trial motion stage justifying the appointment of other counsel, a conflict of interest arose when the trial court appointed another assistant public defender to represent the defendant in the assertion of his claims of incompetence of another assistant public defender.

While the majority of the court has not approved the action of the trial court, it has assumed, based on People v. Puckett (1979), 70 Ill. App. 3d 743, 388 N.E.2d 1293, that the defender’s office can be so organized and function in such a manner that no conflict exists where one assistant is called upon to assert the incompetence of another assistant. While the reasoning of Puckett on first reading seems attractive, since it avoids the cost to the county of providing other counsel, this ought not to be the major rule for adopting the policy promoted by Puckett.

People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157, decided at about the same time as the Puckett case but not mentioned in it, discusses and treats the public defender’s office as a unitary operation. Robinson recognizes that one of the essential features of a county defender’s office is the loyalty of its members to one another and to the organization, suggesting that, as in People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, the virtue of loyalty is compromised substantially if one member is charged with incompetence by another. Both the holding in Puckett and the reasoning of the majority present unresolved practical problems of such significance that I find it difficult to believe that charges of incompetence can be actively prosecuted by one member of the defender’s office against another member.

In suggesting that perhaps there is no conflict between the interest of members of a county’s public defender’s staff, the most obvious difficulty in arriving at such a conclusion is that it is determined in a nonadversarial manner. Neither the county State’s Attorney nor anyone in the county public defender’s office has any interest in presenting and representing the view that the interests of assistant public defenders are by virtue of the organization of the office in conflict. Before the trial court, who asserts the unity of interest of all of the assistant defenders? Who asserts and describes the centralized administrative functions that take place? Who asserts and describes the cooperation between assistant public defenders? Who asserts and describes the advice and shop talk that is passed from one to the other as a result of day-to-day experience in the handling of local cases? Since there was no one in Puckett to raise these questions before the trial court, it is not unexpected that the trial court could and did find that each assistant defender was akin to a sole practitioner because it was asserted that each handled his own cases. Even if a public defender’s office is organized and functions with a minimum of hierarchal or collegiant control, the question remains as to how the nature and extent of such organizational control is to be determined? Neither Puckett nor the majority offer any resolution of this problem, which is basic to the assertion that the defender’s office can be organized in such a way that conflicts can not exist as a matter of law.

This brings me to the second problem, which exists even if one could assume that somehow or other the general organization of the office does not as a matter of law create its own potential conflicts. Even if the office is so organized, generally would not the question of whether a conflict exists in a particular case still remain? Would the relationship or lack thereof among attorneys and administrative personnel have to be redetermined each time? Should the trial court be satisfied with the assertion by a newly appointed assistant public defender that he knew nothing of the case and, besides, he had no objection to insisting his fellow assistant public defender had bungled the case and was an incompetent attorney?

While it may be possible, it seems to me improbable and unlikely as a matter of human experience to expect a public defender’s office to function effectively and harmoniously if the members of the office are expected to argue vigorously about the incompetence of others in the office. In the long run, neither the office nor the clients nor the county would be well served by such a situation.


author: JUSTICE LINDBERG

text:
    THE PEOPLE ex rel. DEBORAH ALDWORTH, Plaintiff-Appellee, v. THOMAS DUTKANYCH, Defendant-Appellant.
    Second District
    No. 84—563
    Opinion filed April 2, 1985.

      Carmen S. Durso, of Rice, Durso & Rice, of Belleville, for appellant.
    Phyllis J. Perko and Martin Moltz, both of State’s Attorneys Appellate Service Commission, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Thomas Dutkanych, was found in contempt of court for his failure to comply with an order of the circuit court of Du Page County to submit to a blood test in a paternity action. He was sentenced to a term of 60 days in the county jail. He appeals and we affirm.

A paternity complaint was filed by the State on behalf of the relatrix, Deborah A. Aldworth, praying for an order finding defendant to be the father of her child. A hearing was conducted and the court entered a finding of probable cause. The court also granted the State’s oral motion that the parties and the child submit to blood tests. Defendant filed a motion objecting to the blood tests, and the State filed a motion to strike defendant’s motion. A hearing was conducted, and counsel were heard with respect to the motions. The court granted the State’s motion to strike defendant’s motion to object to the blood tests and directed both parties and the minor child to submit to blood tests. The court further ordered defendant to pay the costs of the tests. Defendant moved to reconsider and vacate the order or, in the alternative, to clarify its application and also moved to reconsider the order requiring defendant to pay for the tests. The court denied defendant’s motions, and he appeals.

Defendant argues that while the act governing the use of blood tests in a paternity action grants the defendant the right to take a blood test, it does not create a duty or obligation to do so. In addition, the statute not only fails to impose a sanction or penalty for refusal to submit to said tests, but it specifically prohibits disclosure of said refusal upon the trial. Defendant maintains it was clearly the intent of the legislature to render a refusal to submit to blood tests discretionary or optional on the part of the defendant. (People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App. 3d 551, 292 N.E.2d 563.) According to defendant, this intent is also clearly evidenced by the legislature’s refusal to delete the nondisclosure provision when it specifically amended the statute to include the Human Leucocyte Antigen Test. Defendant describes the latter test as a more advanced analysis than that previously available which could not only exclude a defendant but would accurately determine if a defendant was the father of the child.

Defendant’s second contention is that although supreme court rules govern the disposition of procedural matters in civil proceedings, the determination of whether a defendant in a paternity action may be compelled to submit to a blood test concerns a substantive right which may be proscribed, regulated, limited or expanded by the legislature by and through a statutory enactment even if it determines that a defendant should have the discretion to refuse as a matter of public policy. Defendant cites no authority for this argument. The well-established rule is that bare contentions without argument or citation of authority do not merit consideration on appeal. (Deckard v. Joiner (1970), 44 Ill. 2d 412; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43, 453 N.E.2d 1133, 1139.) Therefore, the court will not address the merits of this issue. 87 Ill. 2d R 341(e).

Section 1 of the Act on Blood Tests to Determine Paternity provides:

“In a civil action in which paternity is a relevant fact, the court, upon its own initiative or upon motion of any party to the action, may order the mother, child and alleged father to submit to blood tests, including Human Leucocyte Antigen tests, to determine whether or not the man may be included or excluded as being the father of the child. The results of the tests shall be receivable in evidence in accordance with Section 4 of this Act. If the defendant refuses to submit to such tests, such fact shall not be disclosed upon the trial.” (Ill. Rev. Stat. 1981, ch. 40, par. 1401.)

Section 4 provides:

“(a) If the court finds, as disclosed by the evidence based upon the tests, that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings, such findings shall not be admissible, and the question of paternity shall be submitted upon all the evidence.
(b) If the test results constitute clear and convincing evidence that the man is the father of the child, the results shall be admissible and the question shall be submitted upon all the evidence; provided, however, that the results of blood tests alone shall not be sufficient grounds for determining that the man is the father of the child.” Ill. Rev. Stat. 1981, ch. 40, par. 1404.

Supreme Court Rule 215(a) provides in relevant part:

“(a) In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination, or to produce for such examination the person in custody or under legal control who is to be examined.
* * *
(d)(1) Examination Before Trial. At a reasonable time in advance of the trial, the court may on its own motion, or that of any party, order an impartial physical or mental examination of a party whose mental or physical condition is in issue, when in the court’s discretion it appears that such an examination will materially aid in the just determination of the case.” 87 Ill. 2d R. 215(a)(d).

As argued by the State, defendant’s reliance on People ex rel. Hawthorne v. Hamilton (1973), 9 Ill. App. 3d 551, 292 N.E.2d 563, is unavailing. The statutes involved there (Ill. Rev. Stat. 1971, ch. 106%, pars. 1 through 7, 55) provided for court-ordered blood tests but limited admissibility of the results to those which excluded the putative father as the father of the child (9 Ill. App. 3d 551, 554, 292 N.E.2d 563, 565). The court did not consider application of the supreme court rules governing discovery.

The act in effect at the time of the instant litigation reflects a change in the statutory scheme. Under the present act the court may order blood tests to determine whether or not the man may be included or excluded as the father of the child. Furthermore, the act provides that if the results constitute clear and convincing evidence that the man is the father of the child the results shall be admissible. Ill. Rev. Stat. 1981, ch. 40, par. 1404(b).

Additionally, the courts have found broad authority in the supreme court rules relating to discovery to order blood tests and punish refusal with contempt citations. In Zavaleta v. Zavaleta (1976), 43 Ill. App. 3d 1017, 358 N.E.2d 13, the appellate court held that the trial court had authority to order blood tests relating to a paternity determination and that insofar as the Blood Test Act infringes on the power of the court to order blood tests for discovery purposes, it is an invalid exercise of legislative power. The court distinguished the holding in Hawthorne because the court there had not considered the discovery rules. The court affirmed the imposition of an order of contempt upon the recalcitrant plaintiff in that case. 43 Ill. App. 3d 1017, 1021, 358 N.E.2d 13, 16. Accord, People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 392 N.E.2d 606; People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 391 N.E.2d 164; People ex rel. Coleman v. Ely (1979), 71 Ill. App. 3d 701, 390 N.E.2d 140.

The circuit court of Du Page County did not abuse its discretion in ordering defendant to submit to a blood test nor in holding defendant in contempt and sentencing him as a result of his refusal to obey the court’s order. We affirm the judgment.

Affirmed.

REINHARD and SCHNAKE, JJ., concur.


author: JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRYANT, Defendant-Appellant.
    Third District
    No. 3—83—0791
    Opinion filed April 1, 1985.

      BARRY, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

On November 2, 1983, Donald Bryant was convicted of attempt (burglary) following a jury trial in the circuit court of Peoria County. The defendant appeals his conviction, raising several instances of error at trial.

The evidence at trial established that on August 3, 1983, David McGraw was sitting on his father’s front porch at 3 a.m. when he heard the sound of glass breaking. The sound appeared to be coming from Strube’s Gas Station. When McGraw and' his brother walked to the station, they saw two individuals one block away. The brother called the police.

Peoria police officer Gerald Ulrich was the first to arrive at the gas station. When he arrived, he also noticed two individuals a block away. Ulrich then walked to the back of the gas station, where he saw the defendant break into a run. When the defendant jumped the fence into a neighboring yard, Ulrich drew his revolver and called to the defendant by name. The defendant complied with Ulrich’s order to return over the fence. The defendant was then arrested.

Ulrich found a torn blue shirt in the neighboring yard at the point in the fence where the defendant returned. The defendant was not wearing a shirt when arrested. Ulrich testified that the shirt had an odor similar to the defendant’s. Ulrich later determined that a protective wire covering had been removed from one of the windows in the gas station. The glass had been broken out of the window. Rubber tires were stacked beneath the broken window.

Ulrich’s testimony regarding the discovery and the odor of the shirt was corroborated by police officer Lawrence Weston. The State also introduced the testimony of police officer Walter Jatkowski. Jatkowski testified that the blue shirt had characteristics similar to those of a fabric impression found on pieces of glass from the broken window. Finally, John Marcouiller, a forensic scientist, testified that there was a good probability that a piece of glass recovered from the defendant’s shoe came from the glass in the broken window.

The defendant presented no evidence. The defendant then tendered an instruction on criminal damage to property, which was refused by the trial court. At the jury’s request, the blue shirt was allowed to go to the jury room. Following deliberation, the jury convicted the defendant of attempt (burglary).

The first issue raised by defendant is whether the trial court erred in refusing to instruct the jury on the offense of criminal damage to property because under these circumstances criminal damage to property is a lesser offense of burglary. We agree that, in this case, the instruction should have been given.

The Illinois Supreme Court has enunciated three possible methods for determining whether a certain offense was a lesser included offense. (See People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633.) The first and most obvious method is by comparing the statutory definitions of the offenses. If the more serious offense contains all of the elements of the lesser offense, then the lesser offense is a lesser included offense and the jury must be instructed accordingly. (See Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382.) The second method, if the statutory definition of the more serious offense lacks an element of the lesser offense is to look to the charging instrument. If the charging instrument includes in its description of the offense charged the missing element which proof of the lesser offense requires, then the jury must be instructed on the lesser offense. (See People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189.) A third method was discussed in Mays which has now been rejected by the supreme court. In People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, the supreme court found application of this test to be counterproductive.

In comparing the two statutory definitions, burglary requires an entry without authority with intent to commit theft, and criminal damage to property requires proof that defendant “(a) Knowingly damages any property of another without his consent.” (Ill. Rev. Stat. 1983, ch. 38, par. 21 — 1.) No damage to property is required as an element of the more serious offense, burglary, and therefore, the more serious offense as defined by statute lacks an element of the lesser offense, i.e., property damage.

On the other hand, the test set forth in Cramer is clearly met in this case. Here the charging instrument states that defendant “pulled away a screen and broke a window *** with the intent to enter said building without authority, and to commit therein a theft.” Clearly the indictment alleges property damage, the missing element of the more serious offense, attempt (burglary). Therefore, we hold that, applying the Cramer test, an instruction on criminal damage to property should have been given.

Furthermore, in its most recent mandate, People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, the Illinois Supreme Court held that the instruction should have been given even though it rejected the inherent relationship test. In Dace the supreme court stated:

“[Ujnder these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant’s tendered instructions was error.” (104 Ill. 2d 96,103.)

Like the circumstances in Dace, the circumstances in the present case require that the jury be instructed on the “lesser” offense. Here, the information charged all of the elements of criminal damage to property, not merely intent, as the charging instrument did in Dace. In Dace the information charged residential burglary with intent to commit theft (104 Ill. 2d 96, 98), and contained no allegations that defendant stole anything. In this case the information stated what the damage to property was.

In this case, the evidence at trial established that the screen was pulled away and two window panes were broken at the gasoline station. Therefore, like Dace, the evidence at trial proved the lesser offense, and a reasonable jury could have found defendant guilty of criminal damage to property. In People v. Nickols (1980), 90 Ill. App. 3d 480, 413 N.E.2d 212, we considered these same two offenses but in a different context. In Niekols, the defendant was convicted of both attempt (burglary) and criminal damage to property. We reversed the criminal damage conviction because of the multiple-acts requirement for a conviction for multiple offenses. In Niekols we stated, “We accordingly vacate defendant’s conviction for the lesser offense of criminal damage to property.” (90 Ill. App. 3d 480, 483.) Clearly, a reasonable jury could find a defendant guilty of criminal damage to property on the evidence elicited to prove attempt (burglary). See People v. Billops (1984), 125 Ill. App. 3d 483, 466 N.E.2d 304.

The defendant asserts as his second issue that the trial court erred in refusing to give the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1971), which relates to circumstantial evidence. The second paragraph is to be given when all of the evidence against the accused is circumstantial. In this case, neither Officer Ulrich nor Officer Weston witnessed the crime. In fact the evidence is clear that there were no eyewitnesses. A neighbor near Strube’s gas station called police when he thought he heard glass break, and he and his'brother walked over to the station, where they thought they saw two persons behind the station. The brother then called the police. By the time Ulrich arrived he observed defendant about 10 feet away from the station. Defendant then began to run away. Therefore, there were no eyewitnesses to the crime, and the second paragraph of IPI Criminal 2d No. 3.02 should have been given.

The defendant asserts as his third issue on appeal that Marcouiller’s testimony that there was a good probability that the glass chip came from the broken window was improperly admitted. The defendant argues that this evidence was incompetent and beyond the scope of the witness’ expertise because it involved a probability analysis.

We find no error in the admission of this testimony. When the witness testified regarding statistics based upon testing done by others, the defendant objected. The trial court sustained the objection but allowed the witness to testify regarding his own experience. It was clear from the witness’ testimony that his statistical analysis was based solely upon his own experience. The witness was clearly qualified to comment upon his own analyses. The limited number of samples analyzed by Marcouiller affected the weight and not the competency of his testimony. It was clear to the jury that his analysis of “good probability” was based solely upon his own sampling. The jury was entitled to hear the evidence and consider it for whatever value it had in light of the limited sample.

The defendant has raised two other issues on appeal, but because we are remanding this case for a new trial we will not discuss these issues, as they are unlikely to arise in the same context in the next trial. We, therefore, reverse the judgment of the circuit court of Peoria County and remand this cause for a new trial.

Reversed and remanded.

HEIPLE, J., concurs.

JUSTICE BARRY,

dissenting:

I fail to see how our supreme court’s reasoning in Dace supports the majority’s conclusion on the facts before us and must, accordingly, express my dissent. By glossing over the requirement that the charging instrument at issue contains a specific intent allegation, the majority has effectively readopted the “inherent relationship” test as espoused by the defendant and rejected by our supreme court in Dace. Regardless of what crimes were proved by the evidence adduced at trial, the focus of the jury instruction issue in Dace was the mental state element as alleged in the charging instrument. I do not find this to be mere coincidence, as the majority apparently does, but crucial here to the determination of whether the trial court erred in refusing the defense-tendered instruction on criminal damage to property.

In Dace, the charging instrument for residential burglary alleged the mental state element for the lesser offense of theft. It did not, however, charge commission of the act of theft. In order to prove residential burglary, the State was required to prove intent to commit theft (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), but was not required to prove that defendant obtained control of property of another (Ill. Rev. Stat. 1981, ch. 32, par. 16 — 1). The evidence at trial, in fact, proved both the act and mental state elements of theft. Without adopting the “inherent relationship” test, the supreme court nonetheless approved the giving of a defense tendered instruction on theft under these circumstances:

“The proof of the offense charged requires proof of the specific intent (People v. Toolate (1984), 101 Ill. 2d 301), and the evidence adduced in each case would support a conviction of theft (People v. Housby (1981), 84 Ill. 2d 415.) We hold that under these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant’s tendered instructions was error.” (Emphasis added.) People v. Dace (1984), 104 Ill. 2d 96,103, 470 N.E.2d 993, 996.

To charge criminal damage to property, the State must allege, not merely that property of another was broken by the defendant, but that it was broken knowingly. Criminal damage is, thus, a “specific intent” crime (W. LaFave & A. Scott, Criminal Law 195-98 (1972)), and a conviction cannot be obtained without proof that the property was broken with the requisite mental state.

The two-part test approved in Dace — i.e., charging the mental state element of the lesser offense and proving all elements of that offense at trial — is not satisfied in the converse situation which the instant case represents — ie., charging the act element of the lesser offense and proving all elements of that offense (including mental state) at trial — in my opinion. The charging instrument in this case, to comport with the Dace test, would have had to allege that the defendant “knowingly broke a window *** with the intent to enter said building without authority and to commit therein a theft.”

Since the mental state element for criminal damage to property does not appear in the charging instrument at issue, the first prong of the Dace test was not satisfied. Accordingly, I find no error in the trial court’s refusal to instruct the jury on criminal damage to property.

Further, I do not view the evidence of attempt (burglary) admitted at trial entirely circumstantial. The events witnessed and testified to by Officers Ulrich and Weston, in my opinion, comprised some direct evidence of the defendant’s guilt.

For these reasons I would affirm the judgment of the circuit court.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LELAND BLACKWOOD, Defendant-Appellant.
    Third District
    No. 3—84—0295
    Opinion filed March 15, 1985.
    Rehearing denied May 1, 1985.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Defendant, Leland Blackwood, was convicted of the Class A misdemeanor of violating an order of protection (Ill. Rev. Stat. 1983, ch. 40, par. 2302 — 12(a)). On appeal, defendant challenges the sufficiency of the complaint charging the offense of which he was convicted. He also challenges the constitutionality of the criminal provisions of the Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, pars. 2302 — 8(c)(1), 2302 — 12(a)). We affirm.

On June 20, 1983, the circuit court of Rock Island County entered an order of protection on behalf of Barbara Blackwood, defendant’s ex-wife. The order directed defendant to refrain from “striking, threatening, harassing or interfering with the personal liberty in any fashion” of Barbara.

On February 10, 1984, Barbara filed a criminal complaint against defendant. The complaint alleged the entry of the order of protection and the terms thereof. The complaint further alleged that defendant had threatened and verbally harassed her.

On March 26, 1984, the cause was called for bench trial. Defendant made an oral motion to dismiss the complaint for failure to state an offense and lack of particularity to allow the defense to proceed. The court denied the motion for lack of a writing, untimeliness and because the complaint was sufficient to inform the defendant of the charge. The prosecution was then allowed to amend the complaint to add specific details for the benefit of the defense. The amended complaint set forth the time and place of the alleged violations as well as a recitation of the words constituting the threats and harassment. To wit:

«*** Le]an(j Blackwood started chasing Barbara Blackwood and yelled to Barbara Blackwood that she was a ‘f — ing whore,’ a dead bitch and that he had a plot waiting for her, and Leland Blackwood further stated to Barbara Blackwood that ‘it’s not over and he would get his chance.’ ”

At trial, Barbara testified essentially in accordance with the allegations of the amended complaint. Defendant denied the occurrence of the encounter. No other witnesses were called. Defendant was then convicted as charged.

Defendant argues that the complaint violated section 111 — 3(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 111— 3(a)(3)) in that no mental state was alleged. He further contends that the original complaint lacked sufficient specificity to state an offense.

Before addressing the merits of defendant’s arguments, we must first dispose of the State’s contention that the procedural grounds cited by the trial court for the denial of the motion to dismiss should foreclose review on the merits. It is uncontroverted that the defendant challenged the sufficiency of the complaint in the trial court. While the challenge was not proper in form, the court passed upon the merits. Moreover, a complaint which does not charge an offense can be challenged for the first time on appeal. (People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) Thus, defendant’s challenge to the complaint is reviewable on the merits.

At the outset we reject any contention that the charge lacked specificity or was deficient in failing to state the “means used” in violating the protective order. The motion to amend the complaint was granted. The record reveals no objection to the motion or a request for a continuance to prepare to meet the specifics alleged in the amended complaint. The purported deficiencies in the original complaint were not incurable as in cases such as People v. Allen (1972), 8 Ill. App. 3d 176, 289 N.E.2d 467 (failure to allege a cognizable offense) or People v. Johnson (1979), 69 Ill. App. 3d 248, 387 N.E.2d 388 (failure to charge that a revolver was loaded in a prosecution for unlawful use of weapons). Furthermore, the complaint as amended satisfied due process and double jeopardy considerations by informing defendant of the specific acts for which a conviction against him was sought. In so holding, we decline to reach the question of whether a complaint which merely tracks the language of the order of protection sufficiently particularizes the offense to notify the accused of the charges against him. (People v. Grieco (1970), 44 Ill. 2d 407, 255 N.E.2d 897.) Accordingly, the only issue remaining relative to the sufficiency of the complaint is the necessity of alleging a mental state.

Except in the case of an absolute liability offense, a person is not guilty of an offense unless he acts with either intent, knowledge, recklessness or negligence (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 3(a)). From this, defendant concludes that mental state is an essential element of an offense. Thus, it is argued, failure to allege a mental state in the complaint constitutes an omission of an essential element of the offense in violation of section 111 — 3(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 1111 — 3(a)(3)). In support of this syllogism defendant cites cases reversing convictions for mob action where the charging instrument failed to allege a mental state. People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810; People v. Leach (1972), 3 Ill. App. 3d 389, 279 N.E.2d 450.

Section 4 — 3 has been construed to mean that if the statutory definition of an offense refers to a particular mental state with which the offense must be committed, then that mental state is an element of the offense which must be alleged (People v. Mager (1976), 35 Ill. App. 3d 306, 341 N.E.2d 389). However, where a particular mental state is not a part of the definition of an offense, it is possible that the charging instrument need not allege a specific mental state. For example, where the crime charged is such that it is virtually impossible for a person to commit it and not have a guilty mind, no mental state need be alleged (People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911). Also, where the mental state of knowledge is implicit from the specific allegation of defendant’s act as set forth in the charging instrument, it is beyond serious contention that defendant was sufficiently apprised of the crime charged. People v. Shelton (1969), 42 Ill. 2d 490, 248 N.E.2d 65.

In the case at bar, under either the original complaint or the complaint as amended, it cannot be seriously argued that the defendant was not informed that he was charged with a knowing violation of the order of protection. The defendant was charged with threatening and harassing his ex-wife. Even in day-to-day usage, these terms imply that the protagonist knowingly causes his victim to suffer undue distress. Add in the factor of defendant’s knowledge that he was subject to an order which at the very least restrained him from unnecessarily inflicting himself upon his ex-wife and one is inexorably led to the conclusion that defendant’s conduct as charged must have been knowing and wilful. In point of fact, it is highly doubtful that this court would affirm a conviction for threats or harassment unwittingly made. Thus, we conclude that mental state was not an element which had to be alleged in the complaint.

Defendant also challenges the constitutionality of the Domestic Violence Act. The crux of the argument is that the statutory language is so vague and overbroad that the possibility of criminal penalties thereunder necessarily chills certain constitutional rights.

The State contends that the defendant has waived this issue by failing to raise it in the trial court. In addition to this aspect of waiver, we also recognize that a constitutional challenge to this portion of the Act would have been appropriate upon initial entry of the order of protection. However, no appeal was taken from the original order. The defendant contends that since this is a pure question of law, we should entertain the question in spite of the failure to raise it below. We agree. Vagueness and overbreadth questions are dealt with by reference to judicial standards. Specific evidence or factual inquiry at the trial level would add nothing to the record which would facilitate proper resolution of the issues raised. Thus, we turn to the merits of the challenge.

A statute is void for vagueness where it fails to adequately give notice as to what action or conduct is proscribed. (People v. Vandiver (1971), 51 Ill. 2d 525, 283 N.E.2d 681.) Failure to give adequate notice occurs where a person of reasonable intelligence must necessarily guess at the meaning of the statute. Connally v. General Construction Co. (1925), 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126.

There is little doubt that the terms employed in the Domestic Violence Act are vague to a certain extent. However, impossible and unrealistic standards of specificity are not required. (People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.) In addition to the language used, consideration is given to the legislative objective and the evil the statute seeks to remedy.

Considering all of the aforestated principles, we conclude that the statute is not unconstitutionally vague. The Domestic Violence Act contemplates the protection of a potential victim from the universe of physical and psychological abuses which only someone as close as a relative can inflict. A statute which has as its objective a safety net against such interferences cannot be expected to address every conceivable form of abuse. Thus, a certain measure of generality must be tolerated to give effect to the intended scope of the Act. Furthermore, “guesswork” engendered by the breadth of the language is not excessive. The subjectivity that doomed the laws challenged in Coates v. Cincinnati (1971), 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686, and People v. Klick (1977), 66 Ill. 2d 269, 362 N.E.2d 329, is not present there. In those cases, statutes phrased in terms of conduct calculated or intended to annoy others were held unconstitutionally vague. Obviously, an infinite variety of conduct might annoy some individuals but not others. Here, on the other hand, the statute is phrased in terms of conduct intended by one specific individual to inflict undue distress upon a specific individual or group of individuals. Thus, the scope of conduct which can be conceivably punished under the Act is greatly narrowed. In this regard, we are inclined to follow People v. Parkins (1979), 77 Ill. 2d 253, 396 N.E.2d 22. There, our supreme court upheld “An Act *** to prevent harassment by the use of telephone communications’ ’ (Ill. Rev. Stat. 1977, ch. 134, par. 16.4 — 1(2)) against a vagueness challenge. As we believe the range of punishable conduct to be narrower in the Domestic Violence Act context than in the telephone harassment context, we conclude a fortiori that the statute here is not unconstitutionally vague.

The statute is also challenged for overbreadth. Defendant argues that the Act is impermissibly overbroad in that it may be reasonably interpreted to prohibit constitutionally protected conduct (Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294). Defendant submits that the proscription of threatening or harassing his ex-wife could be interpreted to chill his exercise of first amendment rights. This argument is devoid of merit. The only speech for which defendant could be reasonably punished under the Act is that form of expression which would not be subject to constitutional protection under any circumstances. (See, e.g., People v. Holder (1983), 96 Ill. 2d 444, 451 N.E.2d 831 (intimidation statute is constitutional).) The argument raised in defendant’s brief concerning possible applications of the Act to innocent speech is equally unavailing. A statute is unconstitutionally overbroad when a reasonable interpretation might infringe upon protected expression. The examples proffered by defendant involve patently unreasonable applications of the criminal provisions of the Act. Thus, there is no serious threat to first amendment rights.

Accordingly, we affirm the judgment of the circuit court of Rock Island County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE BARRY

text:
    SOUTH SHORE BANK, Plaintiff and Counterdefendant-Appellee, v. JOHNSON HYDRAULIC MANUFACTURING COMPANY, Defendant and Counterplaintiff and Third-Party Defendant-Appellant.
    Third District
    No. 3—84—0141
    Opinion filed January 28, 1985.
    Rehearing denied May 8, 1985.

      Richard N. Molchan and Timothy L. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Franklin A. Nachman and Jennifer P. Ewers, both of Conklin & Adler, Ltd., of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The question before us is whether a federally recorded security interest in an airplane is superior to the interest of a prior buyer of the same airplane in the ordinary course of business who first attempts to record the transfer of title 14 months after the security interest is recorded. We hold that it is.

In the interest of brevity, we will confine our discussion of a rather complex factual setting to those facts necessary to resolve this single issue. The airplane in question, a Piper Seneca, was purchased by Johnson Hydraulic Manufacturing Company (Johnson Hydraulic) on December 5, 1979, from H. & H. Aircraft (H. & H.) of Monroe, New York, a Piper Aircraft dealer. The plane was delivered to Johnson Hydraulic in Illinois by Howard Spaeth, president of H. & H. Spaeth told Ray Fauber, president of Johnson Hydraulic, that he would record the duly executed bill of sale with the Federal Aviation Administration. Fauber relied on Spaeth and took no action on his own initiative to record the transfer documents at that time.

Unfortunately, Spaeth proved to be untrustworthy. He failed to file the transfer documents. On January 21, 1980, Spaeth, on behalf of H. & H., obtained a loan at South Shore Bank (South Shore) of Quincy, Massachusetts, the plaintiff in this case. Spaeth purported to use the Piper Seneca as collateral. South Shore had had prior dealings with Spaeth and had financed a floor plan loan arrangement for H. & H. A title search of FAA records by South Shore understandably failed to disclose Spaeth’s fraud. The loan was granted, and South Shore promptly filed its security agreement on the Piper Seneca with the FAA. Subsequently, Spaeth became involved in a financial dilemma, defaulted on his commitments to South Shore, and his longtime friends and financial backers at South Shore tried to work out a plan to keep their client afloat while still protecting South Shore’s interests in the various aircraft Spaeth had used as collateral. Under the plan, all such planes, except for a vintage model which remained in a San Diego museum, were to be returned to the Norwood, Massachusetts, airport so that they could be sold. In December of 1980, Spaeth falsely indicated that the Piper Seneca had not been delivered to Norwood because it was on loan to Johnson Hydraulic in Illinois. Samuel Peoples, second vice-president of South Shore, telephoned Fauber at Johnson Hydraulic to verify Spaeth’s story and learned for the first time that Johnson Hydraulic claimed title to the plane as its purchaser. Further title searches requested by South Shore, however, failed to reveal any transfer of ownership or other interest affecting title subsequent to H. & H.’s acquisition excepting, of course, South Shore’s recorded security interest.

Then, when Spaeth’s fraud respecting the Piper Seneca became apparent to Johnson Hydraulic, it attempted, in April 1981, to record its ownership interest with the FAA. The FAA refused to record the proffered documents because of the prior recorded security interest.

Johnson Hydraulic attempted to sue South Shore, along with H. & H. and Spaeth, in Federal court for declaratory judgment. Lack of personal jurisdiction resulted in dismissal of the action against South Shore. Eight months later the instant suit was brought by South Shore in the Illinois State court system. Both parties moved for summary judgment. On May 6, 1983, the trial court granted Johnson Hydraulic’s motion and denied South Shore’s on grounds that under Illinois law the prior innocent purchaser for value had an interest superior to a later-recorded secured party even though the prior purchaser’s interest was never recorded. (See Shacket v. Roger Smith Aircraft Sales, Inc. (N.D. Ill. 1980), 497 F. Supp. 1262, affd sub nom. Shacket v. Philko Aviation, Inc. (7th Cir. 1982), 681 F.2d 506, cert, granted (1982), 459 U.S. 1069, 74 L. Ed. 2d 630, 103 S. Ct. 487.) On the basis of the trial court’s decision, and at Johnson Hydraulic’s renewed request, the FAA issued a certificate of aircraft registration in Johnson Hydraulic’s name on August 8, 1983.

In the meantime, South Shore appealed to this court from the trial court’s decision on May 31, 1983. Then, on June 15 the United States Supreme Court handed down its opinion in the Philko case, reversing the decisions of the district and circuit courts. (Philko Aviation, Inc. v. Shacket (1983), 462 U.S. 406, 76 L. Ed. 2d 678, 103 S. Ct. 2476.) In a per curiam order we reversed and remanded this cause to the circuit court of Peoria County for reconsideration in light of the PhilJco decision.

The matter was reheard, and the trial court this time granted South Shore’s motion for reconsideration of its motion for summary judgment, declaring on the basis of Philko that South Shore’s rights in the airplane were prior and superior to those of Johnson Hydraulic.

In this appeal, Johnson Hydraulic claims that the trial court erred in holding that the Philko decision was controlling. We cannot agree.

Since the reach of the Philko decision is the crux of the parties’ dispute at this juncture, it is first necessary to set forth the factual setting of that case. The sham transactions laying the groundwork for litigation in Philko appear remarkably similar to those initiated by Spaeth here. In Philko, a corporation operated by Roger Smith sold a plane to the Shackets in April of 1978. The Shackets paid in full and took immediate possession of their purchase. Smith handed them photocopies of the transfer documents and assured the Shackets that he, Smith, would “take care of the paperwork.” The Shackets accordingly failed to record any documents with the FAA; and Smith, rather than acting pursuant to his assurances to the Shackets, proceeded with a scheme to sell the airplane to Philko Aviation. Smith explained the absence of the aircraft with a story that it was being worked on in Michigan. Philko and its financing bank checked FAA records and were satisfied that the title to the aircraft was not encumbered by intervening transactions. The transaction was closed, and the bank recorded the title documents with the FAA. In an action for declaratory judgment, the district court applied the law of the State of Illinois (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 101 et seq.) and held that the prior unrecorded bona fide purchasers (the Shackets) had priority interests in the airplane. The Seventh Circuit affirmed. Again applying State law, the court ruled that Philko could not obtain any title or interest in the aircraft as a secured party (rather than as a buyer in the ordinary course of business); and that, in any event, Smith had nothing to sell to Philko since both title and possession of the airplane resided with the Shackets so that, even if Philko were considered a purchaser instead of a secured party, the transaction could convey no interest to Philko.

The Supreme Court reversed on grounds of Federal preemption, holding that section 503(c) of the Federal Aviation Act of 1958 preempted conflicting State law. Specifically, the court addressed the issue of “whether the Federal Aviation Act *** prohibits all transfers of title to aircraft from having validity against innocent third parties unless the transfer has been evidenced by a written instrument, and the instrument has been recorded with the Federal Aviation Administration.” (462 U.S. 406, 407, 76 L. Ed. 2d 678, 681, 103 S. Ct. 2476, 2477.) The court held “that state laws allowing undocumented or unrecorded transfers of interests in aircraft to affect innocent third parties are preempted by the federal Act.” (462 U.S. 406, 412, 76 L. Ed. 2d 678, 684, 103 S. Ct. 2476, 2480.

In reaching its conclusion, the court expressly declined to reach the issue which Johnson Hydraulic purports to present to this court on the instant facts-that is, whether State law determines priorities of conflicting interests in aircraft where both the security interest and the purchaser’s interest are federally recorded.

In the present case, Johnson contends it exercised due diligence in attempting to have its interest in the Piper Seneca recorded promptly upon learning of Spaeth’s fraud in April of 1981. We should recall that although its early requests for Federal recordation were denied by the FAA, eventually, in August of 1983, Johnson Hydraulic succeeded in this effort. A copy of its Federal certification of registration appears in the record before us.

Even were we to conclude, as Johnson Hydraulic urges, that the majority opinion in Philko left the door open for a “due diligence” exception to the court’s Federal preemption holding, we do not find such exception applicable to the facts of this case. In our opinion, mere reliance on another to perform the ministerial duties of forwarding documents to the FAA for recording, even if shown, as here, to be a customary practice between the parties to a transaction, does not qualify the unrecorded interest-holder for a “due diligence exception” to the Federal recordation statute. Nor, as we see it, has due diligence been demonstrated by a prompt attempt to record upon learning of a fraud in the transaction some 14 months after the purchase is closed. (See Philko Aviation, Inc. v. Shacket (1983), 462 U.S. 406, 414, 76 L. Ed. 2d 678, 686, 103 S. Ct. 2476, 2481 (O’Connor, J., concurring in part).) The trial court on rehearing rejected Johnson Hydraulic’s attempt to distinguish this case factually from Philko on grounds that the instant case represented a conflict between two recorded interests. We agree that the belated “recording” in this case was a nullity as against South Shore. In the instant case, as in Philko, the conflicting interests are between an unrecorded prior purchaser with possession (Johnson Hydraulic) and a federally recorded subsequent interest-holder without possession (South Shore). To permit the exception urged by Johnson Hydraulic on these facts surely would defeat the primary congressional purpose for enacting the Federal recordation statute, i.e., “to create ‘a central clearing house for recordation of titles so that a person, wherever he may be, will know where he can find ready access to the claims against, or liens, or other legal interests in an aircraft.’ ” Philko Aviation, Inc. v. Shacket (1983), 462 U.S. 406, 411, 76 L. Ed. 2d 678, 683, 103 S. Ct. 2476, 2479 (quoting testimony of F. Fagg, Director of Air Commerce, Department of Commerce, Hearings before House Commission on Interstate and Foreign Commerce, 75 Cong., 2d Sess., page 407 (April 1,1938)).

We agree with the trial court’s conclusion on remand that the Supreme Court’s decision in Philko controls the outcome of this case on grounds that, as against South Shore, the rights of Johnson Hydraulic obtained by purchasing the Piper Seneca in 1979 were invalidated by its failure to duly record the transfer documents with the FAA prior to South Shore’s recordation. Accordingly, South Shore’s interests in the airplane, as correctly determined by the circuit court, are superior to those of Johnson Hydraulic, and the trial court should be affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.

      The Federal statute provides that no conveyance or instrument affecting the title to any civil aircraft shall be valid against third parties not having actual notice of the sale, until such conveyance or other instrument is filed for recordation with the FAA. 49 U.S.C. sec. 1403(c) (1976).


author: JUSTICE HOPE

text:
      In re MARRIAGE OF THOMAS A. MICHE, Petitioner-Appellee, and BIBIAN MICHE, Respondent-Appellant.
    Second District
    No. 84—571
    Opinion filed March 29, 1985.

      Barry A. Schultz and Kevin M. Kane, both of Prairie State Legal Services, of Waukegan, and Bernard Shapiro, of Prairie State Legal Services, of Rockford, for appellant.
    Karen L. Brigham, of Waukegan, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

In this dissolution of marriage action, respondent, Bibian Miche, appeals from an order of the circuit court of Lake County which retained jurisdiction over the issue of custody of the couple’s three minor children and awarded temporary custody of the two eldest children to petitioner, Thomas Miche. The sole issue in this interlocutory appeal (87 Ill. 2d R. 306) is whether the circuit court has jurisdiction over the minor children pursuant to the Uniform Child Custody Jurisdiction Act (hereinafter referred to as the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 2101 et seq.). We reverse.

Thomas and Bibian Miche were married on October 17, 1973, in the Philippines. In 1974, the couple moved to California, where they continued to reside until August 1983. As a result of the marriage, the couple had three children: Michelle Sherry, age 10 at the time of trial; Steven Thomas, age nine; and Merry Jean Gloria, age six.

On August 16, 1983, Thomas Miche and his two eldest children, Michelle and Steven, moved to Illinois. Subsequently, on November 18, 1983, the petitioner filed suit for dissolution of marriage in the Lake County circuit court. Prior to entry of the judgment for dissolution of marriage, the respondent filed a petition for dissolution of marriage in California, requesting that she be granted custody of the children. Shortly thereafter on February 13, 1984, the trial court in Illinois entered a judgment, by default, for dissolution of marriage and awarded the petitioner custody of the two eldest children.

On February 17, 1984, the respondent filed a special and limited appearance and a motion to vacate the judgment for dissolution of marriage. The motion contested the Illinois trial court’s jurisdiction to determine child custody. The trial court vacated that portion of the judgment awarding custody of the two eldest children, Michelle and Steven, to the petitioner. However, it awarded the petitioner temporary custody of the two eldest children and retained jurisdiction to make a final custody determination. Respondent’s subsequent motion to reconsider was denied, and timely petition for interlocutory appeal followed.

On appeal, respondent contends that jurisdiction is lacking because Illinois is not the “home state” of the minor children within the meaning of section 4(a)(l)(i) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(l)(i)), and because it would not be in the best interest of the children for Illinois to assume jurisdiction (see Ill. Rev. Stat. 1983, ch. 40, pars. 2104(a)(2), 2108(c)). We agree.

Section 4(a) of the Uniform Child Custody Jurisdiction Act (111. Rev. Stat. 1983, ch. 40, par. 2104(a)) sets forth the circumstances under which Illinois courts have jurisdiction to make a child custody determination. That section provides, in relevant part:

“(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
* * *
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; ***.” Ill. Rev. Stat. 1983, ch. 40, par. 2104(a).

We find persuasive respondent’s first contention that Illinois is not the “home state” of the minor children. “Home state” is defined in the Act, for purposes of this appeal, as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 2103.04.) The “time involved” in the instant action is the “time of commencement of the proceeding.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(l)(i).) “Custody proceeding” is defined in section 3.03 of the Act as “proceedings in which a custody determination is one of several issues ***.” Ill. Rev. Stat. 1983, ch. 40, par. 2103.03.

Here, petitioner filed for dissolution of marriage on November 18, 1983, approximately three months after moving to this State from California. The custody of the minor children was one of the issues raised in the dissolution petition, and thus the “custody proceeding” commenced as of that date. Accordingly, it is manifest that Illinois was not the “home state of the [minor children] at the time of commencement of the proceeding” since only three months had elapsed, and jurisdiction was lacking on this basis.

We also agree with respondent’s second contention that section 4(a)(2) of the Act, pertaining to the “best interest of the child,” does not afford a basis for jurisdiction over the minor children. A finding of jurisdiction under that section requires that the minor children and petitioner have “a significant connection with this State,” and that “substantial evidence concerning the [children’s] present or future care, protection, training, and personal relationships” be available in this State. (Ill. Rev. Stat. 1983, ch. 40, pars. 2104(a)(2)(i), 2104(a)(2)(ii).) The purpose of paragraph two “is to limit jurisdiction rather than to proliferate it” and “[t]he interest of the child is served when the forum has optimum access to relevant evidence about the child and the family. There must be maximum rather than minimum contact with the state.” (In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 361-62, 434 N.E.2d 400, quoting 9 Unif. Laws Ann. 124 (1979).) Further, the term “substantial evidence” in the statute was not intended to be used as a substitute for “some evidence,” as may be used in other contexts, but was rather intended to require a high degree of connection and access to evidence. (In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 362, 434 N.E.2d 400.) This interpretation is also apparent from an examination of section 2, which sets forth the general purposes of the Act, and which provides in part:

“(a) The general purposes of this Act are to:
* * *
3. assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his
family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state; ***.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 2102(a)(3).

We conclude that it is not in the best interest of the children, within the meaning of section 4(a)(2) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(2)), that Illinois retain jurisdiction over the custody determination. The record indicates that the minor children have spent nearly their entire lives in California and have had all of their schooling in California prior to the divorce proceeding. Further, respondent and the youngest child still reside there. On the basis of these facts, we think it is clear that greater access exists in California to relevant information concerning the children’s health, education, personal relationships, and home life, and that accordingly California has a higher degree of connection with the children than does Illinois, where two of the children have lived for only two years. See Siegel v. Siegel (1981), 84 Ill. 2d 212, 417 N.E.2d 1312; In re Custody of Holman (1979), 77 Ill. App. 3d 732, 396 N.E.2d 331.

The petitioner contends that Illinois has closer connections with the minor children because: (1) two of the children have attended school in Illinois for an entire year; (2) Michelle is presently enrolled in a special program for the learning disabled in this State; and (3) the plaintiff remarried in April 1984 and the children are now part of an extended family which includes a stepmother, a stepbrother and two stepsisters. While these facts constitute “some evidence” of a connection with this State, we do not believe they constitute facts sufficient to render Illinois the State with which the family has the closest connection. Further, during oral argument on appeal counsel for petitioner conceded that Illinois does not have. jurisdiction to determine the custody of the youngest child still remaining in California. This being the case, we think the purposes of the Act would be better served by declining jurisdiction in Illinois in accordance with section 2(a)(3) (Ill. Rev. Stat. 1983, ch. 40, par. 2102(a)(3)), so that custody of all three children can be determined at the same time in California.

For the reasons stated above, we reverse the order of the circuit court of Lake County for lack of jurisdiction.

Reversed.

REINHARD and UNVERZAGT, JJ., concur.