author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GAYLORD RICHARDSON, Defendant-Appellant.
    Third District
    No. 82—661
    Opinion filed September 20, 1983.

      HEIPLE, J., dissenting.
    Robert Agostinelli, Verlin R.E Meinz, and Jean Herigodt, all of State Appellate Defender’s Office, of Ottawa, for appellant.

      Warren T. McNeill, State’s Attorney, of Monmouth (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal of a conviction for burglary.

The defendant, Gaylord Richardson, was arrested at the Eagles Club Building in Monmouth, Illinois, on April 16, 1982, at approximately 3 a.m. Richardson had entered the building by knocking in the paneling covering a window in the meeting room area of the building. This activated an alarm which alerted the Monmouth police department and Cecil Albert, a club trustee. Both the officers and Albert arrived at the Eagles Club quickly. The police officers searched the building, and discovered Richardson in a closet in the storage area of the club. He was placed under arrest. At some point, Richardson asked for the beer and cigarettes he had left in the barroom of the club.

Apart from the damage to the window, nothing in the club was disturbed and none of the club’s property was missing or discovered on Richardson’s person.

The defendant was tried, convicted of burglary and sentenced to 10 years in prison under the extended-term sentencing provisions of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2).

The defendant raises three issues on appeal. First, the defendant claims his conviction must be reversed because the State failed to prove beyond a reasonable doubt that the defendant entered the Eagles Club with intent to commit a theft. This intent upon entry is an essential element of the crime of burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) It is not necessary that anything be stolen for a burglary to occur. It is well established that a jury may infer the element of intent in a burglary case from the fact of illegal entry into a premises containing movable property which could be the subject of a theft. People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864.

It is a rare case where any direct evidence exists as to a defendant’s state of mind at the point of entry. Yet the defendant here argues that the circumstantial evidence against him must be corroborated for the State to meet its burden of proof. This is not required by Johnson. All that is required is that there not be circumstances inconsistent with a reasonable inference of intent to commit theft. 28 Ill. 2d 441, 443.

The defendant also claims that the fact that nothing was taken or disturbed on the premises constitutes the “inconsistent circumstances” contemplated in Johnson and cites People v. Hutchinson (1964), 50 Ill. App. 2d 238, 200 N.E.2d 416, in support of this assertion. In Hutchinson, the defendant entered and left a home in daylight, disturbing or removing nothing, and was apprehended sometime later. The Appellate Court for the First District of the State of Illinois found this completed sequence of actions without a theft occurring inconsistent with an inference of intent to commit theft upon entry.

Here Richardson was apprehended on the premises a short time after entering the club. The evidence shows that he had been in the barroom prior to the arrival of the officers and retreated to a closet in the storage area. The fact that no theft had occurred when the police arrived is at best inconclusive. It is not inconsistent with the reasonable inference that Richardson intended to commit a theft and would have done so but for the arrival of the police. See People v. Hayes (1973), 11 Ill. App. 3d 359, 296 N.E.2d 649.

This court finds that the State met its burden of proof. The conviction is affirmed.

The defendant raises two objections to the sentencing procedure in the court below. The first of these is that the court failed to advise him of his right to elect treatment under the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1981, ch. 91V2, par. 120.1 et seq.

A presentence report was prepared by the probation office in this case. The report was incorporated in the record of the case at the sentencing hearing and was before the court in pronouncing sentence. It contained the defendant’s statement that he was a drug addict.

Section 10 of the Dangerous Abuse Act provides:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.)

Prior to its amendment in 1979 this statute read “the court may advise him.” Advising a defendant of his rights and options under this Act was within the trial court’s discretion at that time. The 1979 amendment, substituting “shall” for “may,” removed this discretion and required the trial court to advise the defendant of his option to elect treatment if the two conditions of the statute are met. See also People v. Beasley (1982), 109 Ill. App. 3d 446, 453, 440 N.E.2d 961, 966.

The first of these conditions is “a court has reason to believe that an individual is an addict or the individual states that he is an addict.” The word “or” is a disjunctive. Either the defendant’s statement or other evidence which would give the court reason to believe that he is an addict fulfills this condition; both are not required. If an individual states that he is an addict the court must accept that statement, and not make its own determination as to the truth of the statement. When the court said in People v. Beasley (1982), 109 Ill. App. 3d 446, 454:

“We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation and treatment possibilities under the Act”

they were simply stating the plain English meaning of the statute.

The State, obviously distressed by the fact that the court must accept a defendant’s “potentially self-serving statement” attempts to bring back a discretionary finding of addiction through the second condition of section 10:

“the court finds that he is eligible to make the election provided for under Section 8.”

They refer us to section 8:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be, unless ***.” (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8.)

The State argues that the use of the word “addict” in this section is not simply a brief way of stating “an individual who has stated that he is an addict or has given the court reason to believe that he is an addict.” Rather, they argue, the use of the word “addict” in section 8 requires the court to make a “threshold finding” apart from any requirements of section 10 that the defendant is, in fact, an addict.

We note first that to hold that section 8 requires a finding by the trial court that an individual is, in fact, an addict would render the conditions of the first paragraph of section 10 of the Act entirely superfluous. While such a result might please those who argue in its favor, it would be a poor reflection of legislative intent. The legislature also specifically assigned the task of determining whether an individual is, in fact, an addict to medical personnel qualified to make such a determination. The second paragraph of section 10 reads:

“If an individual elects to undergo treatment *** the court shall order an examination by a licensed program designated by the Commission to determine whether he is an addict and is likely to be rehabilitated through treatment.” (Emphasis added.) (Ill. Rev. Stat. 1981, eh. 91V2, par. 120.10.)

The decision whether the defendant is to be admitted into a licensed program as a treatable addict is within the discretion of those in charge of the licensed program. It is clear from the statutory language that this decision has two aspects. The first is whether the defendant is, in fact, an addict, and the second is whether he is likely to be rehabilitated by treatment. These are medical, not judicial, determinations. Little purpose would be served by a trial court’s attempting to predict the outcome of blood, urine, and psychological tests, and nowhere does the legislature authorize the court to do so.

The State cites People v. Jones (1981), 97 Ill. App. 3d 619, and People v. Knowles (1977), 48 Ill. App. 3d 296, to support the proposition that the defendant’s “bare assertion” that he is an addict is insufficient. These cases are not supportive of this proposition or the State’s argument under section 8. In neither case did the defendant state that he was a drug addict. In Knowles, the defendant stated that he was an “ex-heroin addict” and in Jones the defendant made oblique references to having a “drug problem.” The issue in both cases was whether, absent the defendant’s statement that he was an addict, the court had “reason to believe” that he was' an addict under section 10. Neither case makes any reference to a threshold finding of addiction under section 8.

The State also argues that People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, recognizes that “the evidence presented to the trial judge must give the judge reason to believe the defendant is in reality an addict.” Here the State uses the language of section 10 in an attempt to prove that the word “addict” in section 8 requires a separate finding of fact. The defendant in Beasley did not state that he was an addict at the time of the trial. The context of the recognition the State relies upon is:

“We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation ■ and treatment possibilities under the Act, and believe that consistent with this statutory scheme little should be required to give a court reason to believe defendant is an addict.” 109 Ill. App. 3d 446, 454, 440 N.E.2d 961, 967.

In sum, the State is unable to cite any authority to support its assertion that the word “addict” in section 8 requires a threshold finding of addiction. There is nothing to indicate that anything more than the requirements outlined in section 10 is necessary to trigger the provisions of the Act. We, therefore, hold that when a defendant states that he is an addict the provisions of the Drug Abuse Act are triggered. Any further determination of addiction is within province of the medical personnel designated by the legislature. It is not within the discretion of the court.

The State argues alternatively that Gaylord Richardson was on parole, did not have his parole officer’s consent to elect treatment and was, therefore, ineligible under section 8(e):

“An addict *** convicted of a crime is eligible to elect treatment *** unless *** (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election ***.” (Ill. Rev. Stat. 1981, ch. 91x/2, par. 120.8(e).)

Case law places an affirmative obligation on a defendant who wishes to be eligible to elect treatment to obtain the consent of his parole officer and present evidence of this consent to the court. (See People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323; People v. York (1980), 87 Ill. App. 3d 1026, 409 N.E.2d 525.

However, in People v. Simms (1978), 60 Ill. App. 3d 519, 377 N.E.2d 154, the Appellate Court for the First District correctly held that absence from the record of proof that the defendant obtained the consent of the requisite authorities does not eliminate the requirement that the record reflect the discretion of the trial court in considering the defendant’s eligibility under the Act.

In considering disposition under the Act, in the instant case the trial court stated: “I find that the requisite factors to bring that into effect do not exist and have not been shown here.” The State argues in its supplemental brief that “the trial judge obviously recognized the fact defendant was on parole, had not obtained consent, and was ineligible under Section 8 of the Act.” Were this true, the requirements of the Act would have been fulfilled. However, this court does not, on the record, find any consideration of the defendant’s parole status “obvious” from the trial court’s statement. The court’s statement seems more likely to be what the State first presumed it to be, a finding that Richardson was not an addict. Since no such finding was proper in this case, we must vacate the sentence and remand for resentencing consistent with the provisions of this Act.

The defendant’s final objection to the procedure below is that he should not have been sentenced under the extended-term sentencing provisions of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2). This argument is based entirely upon the wording of section 5 — 5—3.2(b)(1), which allows for extended term sentencing:

“When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 5—3.2(b)(1).)

The defendant argues that the words “separately brought and tried” mean that only convictions resulting from a bench or jury trial may be considered under the statute; not those which result from guilty pleas as the defendant’s did. We find this argument without merit. The Second District Appellate Court, in considering this same issue in People v. Baker (1983), 114 Ill. App. 3d 803, 810, 448 N.E.2d 631, noted that “a proceeding in which a defendant’s guilty plea is accepted by the trial court after establishing a factual basis for the plea is a trial.” We would add only that defendant’s arguments for leniency for defendant who plead guilty unpersuasive. A guilty plea may, in some cases, be a significant step toward rehabilitation. But where the record shows six prior felony convictions in the last seven years, it appears more likely that Richardson’s guilty pleas were the product of careful plea bargaining, not remorse.

We find that the court correctly noted Richard’s conviction on three counts of burglary in 1977 and his conviction for escape in 1978, as two instances of the defendant being convicted of the same or greater class felony within the 10-year period and that these charges were separately brought and tried. The court acted within its discretion in sentencing Gaylord Richardson under the extended term sentencing provision of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2).

The conviction is affirmed. The sentence is vacated and the case is remanded to the circuit court of Warren County for determination of the eligibility of Richardson under the Drug Abuse Act, and for sentencing.

STOUDER, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

The defendant, in his second issue, argues that his sentence should be vacated, and his cause remanded for resentencing, because the trial court neither advised the defendant of his right to elect treatment under the Dangerous Drug Abuse Act, nor referred him for evaluation under the Act, even though the defendant specifically stated he was an addict. The majority opinion agrees with the defendant because it holds that “*** when a defendant states that he is an addict the provisions of the Dangerous Drug Abuse Act are triggered. Any further determination of addiction is within province of the medical personnel designated by the legislature. It is not within the discretion of the court. ***” Interestingly, the majority also finds it cannot review the sentencing issue because the record does not reflect the exercise of discretion concerning the application of the Dangerous Drug Abuse Act (Act), by the trial court. The majority is sending the case back to the trial court so that the trial court can evaluate, on the record, the factors of the Act which determine whether the Act is applicable to the defendant. I respectfully dissent. I believe the record is complete. The trial court did evaluate the necessary factors and rendered its decision on the record. Furthermore, I would hold the trial court was under no obligation to advise the defendant of the provisions of the Act or to have the defendant evaluated for treatment, and thus, did not err.

An examination of the applicability of the Act, to the instant case, must begin with a review of section 10 of the Act which provides, in relevant part, as follows:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 91x/2, par. 120.10.

The majority notes that there are two conditions to the application of the advisement requirements of section 10. Yet, after reviewing People v. Beasley (1982), 109 Ill. App. 3d 446, as authority, the majority recognizes in effect only one condition to the application of the Act. The majority requires only that “*** a defendant state that he is an addict [in order for] the provisions of the Drug Abuse Act [to be] triggered ***.” The majority misconstrues section 10. It is quite clear from the language of this section that the advisory requirements of the section are not activated until two conditions precedent are present. One, a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict. Two, the court finds that he is eligible to make the election provided for under section 8. In the instant case, the defendant stated that he was an addict. Thus, the first condition was present. It is necessary, then, to determine whether the second was present.

Section 8(e), in relevant part, provides as follows:

“An addict *** convicted of a crime is eligible to elect treatment *** unless *** (e) the addict is on *** parole and the appropriate parole *** authority does not consent to that election ***.” (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8(e).)

The provisions of section 8 determine whether a defendant is eligible to elect treatment under the Act. The application of section 8 is also limited by two conditions precedent. One, the defendant must be, in fact, an addict. Two, the proper parole authority must consent to the election. The majority states the legislature did not intend to allow the trial court to determine whether a defendant is, in fact, an addict. The majority contends, first, that to so hold would render the conditions of section 10 superfluous and, second, that the task of determining whether an individual is, in fact, an addict was assigned by the legislature to medical personnel. I disagree with the first contention because section 8 clearly, and unequivocably refers to “an addict.” Did the legislature say, in section 8, “reason to believe an addict” or “determined by medical personnel an addict” or “claims to be an addict”? No. The legislature said “an addict.” The first condition of section 10 allows the court and/or the defendant an opportunity to raise the issue of addiction. Once the issue is raised, the trial court looks to section 8 and makes a factual determination of whether the defendant is, in fact, an addict. There is a reasonable and necessary progression of events. First, the issue is raised (via section 10); then, the court can make an initial finding as to the merits of the addiction allegation (via section 8); then, if the court believes the defendant is an addict and eligible to elect treatment (via section 8), the court can ask a licensed program to evaluate the defendant for possible treatment. Why should the court order an evaluation for treatment every time a defendant claims to be an addict? Why should the State and/or county of the court suffer the expense of an evaluation for treatment every time a defendant claims to be an addict? I would read section 8 to require a finding that the defendant is, in fact, an addict. Obviously, I also disagree with the majority’s second contention and address this second point more fully at the end of my dissent. The trial court is fully competent to evaluate the testimony, the medical reports (if submitted) and “other information” and determine whether a defendant is, in fact, an addict.

In the instant case, the record indicates that there was extensive testimony, at a pretrial hearing, concerning the defendant’s addiction problem, by the defendant and a guard at the jail where the defendant resided. The defendant testified to a long history of drug use; but, the testimony could not compel one to conclude the defendant had an addiction problem. Mostly, the testimony showed the defendant had a severe drinking problem. The defendant presented no witness to testify to his drug addiction. The jailhouse guard testified he never noticed the defendant to have exhibited drug withdrawal symptoms. In sum, the record sufficiently demonstrates the defendant was not an “addict” within the meaning of the Act. (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.3 — 3.) Thus, the record supports the conclusion that the defendant was ineligible to elect treatment under the Act. People v. Benedetto (1981), 102 Ill. App. 3d 10, 20.

The defendant also did not satisfy the second condition of section 8, which is relevant to the case at hand. The defendant did not present the lower court with evidence of the proper parole authority’s consent to the defendant’s election under the Act. As the majority points out, the defendant has an affirmative obligation to provide such evidence to the trial court. This court has previously held that “[because the defendant’s probation officer has not consented to his treatment under the Dangerous Drug Abuse Act, we find the defendant to be ineligible for such treatment and, therefore, decline to remand this cause for a new sentencing hearing merely to enable the sentencing judge to state, for the record, his reasons for denying the defendant the election for such treatment.” (People v. York (1980), 87 Ill. App. 3d 1026, 1032.) Because the defendant, in the instant case, was unable to meet the conditions of section 8, the defendant was ineligible to elect treatment under the Act. Also, the failure to meet the requirements of section 8 meant the conditions precedent of section 10 were not present; consequently, the trial court was under no obligation to advise the defendant of the treatment alternatives available in the Act. Despite this clear evidence (or perhaps I should say clear lack of evidence favorable to the defendant) in the record in support of the decision of the lower court, the majority chooses to vacate the sentence. In effect, the court is reversing a correct decision by the trial court.

The rationale for the court’s decision is that the record does not make clear the trial court’s reasons in rejecting treatment under the Act. The majority notes that:

“In considering disposition under the Act, in the instant case the trial court stated: T find that the requisite factors to bring that into effect do not exist and have not been shown here.’ The State argues in its Supplemental Brief that ‘the trial judge obviously recognized the fact defendant was on parole, had not obtained consent, and was ineligible under Section 8 of the Act.’ Were this true, the requirements of the Act would have been fulfilled. However, this court does not, on the record, find any consideration of the defendant’s parole status ‘obvious’ from the trial court’s statement. The court’s statement seems more likely to be what the State first presumed it to be, a finding that Richardson was not an addict. Since no such finding was proper in this case, we must vacate the sentence and remand for resentencing consistent with the provisions of this Act.”

The majority cites, in support of its holding, People v. Simms (1978), 60 Ill. App. 3d 519, 521, wherein the court held “that the absence from the record of proof that defendant had obtained consent of probation authorities does not negate the requirement that the trial judge exercises his discretion on the record when considering treatment under the Act.” By its analysis, the majority is requiring specific and detailed findings of fact for each factor and is reversing the lower court because of his failure to explicitly state the findings in the record.

I disagree with the majority’s holding for three reasons. One, the rule stated in Simms does not include a requirement that the trial court make a specific finding of fact in the record in order to satisfy the requirement that the exercise of discretion be reflected in the record. In Simms, the court was only able to infer that the trial court considered the Dangerous Drug Abuse Act, and held that there must be an on the record exercise of discretion by the trial judge. Simms relied upon People v. Ruffin (1977), 46 Ill. App. 3d 448, 452-53, wherein there was no mention on the record of the defendant’s addiction problem or the Dangerous Drug Abuse Act and the court could not determine whether the trial judge exercised his discretion. The Simms court also relied upon the supreme court’s decision in People v. Warren (1977), 69 Ill. 2d 620, 629, for the basic rule that the exercise of discretion in denying the defendant treatment under the Act must be reflected in the record. The Warren decision does not state what the trial court must say or what factors must be evaluated on the record. The purpose of this rule is to aid the higher court’s review of the trial court’s decision. It seems sufficient that there is an indication on the record that the judge considered the relevant section of the Act and exercised his discretion by saying whether he would apply the section or not. (People v. Rohman (1983), 117 Ill. App. 3d 55, 58.) In the instant case, the trial court did state the law at issue and its decision under that law. On appeal, this court can review the record and determine as a matter of law, from the facts and applicable law, as they appear in the record, whether the trial court abused its discretion.

Two, I disagree with the holding of the opinion because the statement of the trial judge on the record was a specific finding as to the application of the Act. The majority opinion does not fully quote the trial court’s decision. The trial court stated that “if it is the defendant’s theory that he would qualify for commitment under the Mental Health Code, chapter 911!2, paragraph 120.8, I find that the requisite factors to bring that into effect do not exist and have not been shown here.” (Emphasis added.) As discussed above, the application of section 8 to the defendant was a condition precedent to the application of section 10 to the defendant. It cannot be disputed that, in the case at hand, the lower court needed to consider only two factors when evaluating the applicability of section 8, which are as follows: Was the defendant an addict and did the parole authorities consent? The trial judge stated that “the requisite factors to bring that [section 8] into effect do not exist and have not been shown here.” How much more specific must the trial court be? The two factors are not there. Does the record show otherwise? Unless the record does show otherwise, the decision of the trial court not to advise the defendant of the election provisions of section 10 should be affirmed.

Three, I disagree with the holding of the opinion because the trial court was, pursuant to the fourth sentence of the second paragraph of section 10, fully within its authority to completely avoid the application of section 10 to the defendant. The fourth sentence of the second paragraph provides as follows:

“If the court, acting on the report and other information coming to its attention, determines that the individual is not an addict or is an addict not likely to be rehabilitated through treatment or that his addiction and the crime committed are not significantly related or that his imprisonment or periodic imprisonment is necessary for the protection of the public, the court shall proceed to pronounce sentence as in other cases." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 9U/2, par. 120.10.)

The trial court specifically found that “his [the defendant’s] imprisonment is necessary for the protection of the public.” Thus, even if section 10 was applicable to the defendant, the trial court was empowered to ignore the treatment provisions of section 10 and “pronounce sentence as in other cases.”

The defendant also argues, and the majority agrees, the trial court erred in not ordering an evaluation of the defendant by a licensed program to determine whether the defendant was an “addict,” within the meaning of section 8. In other words, the majority holds the trial court should not have made the evaluation itself. The majority cites People v. Beasley (1982), 109 Ill. App. 3d 446, 454, for the proposition that the legislature intended that medical expertise be employed in determining whether the defendant is an addict. And, the majority cites the first sentence of the second paragraph of section 10, which provides as follows:

“If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by a licensed program designated by the Commission to determine whether he is an addict and is likely to be rehabilitated through treatment.” Ill. Rev. Stat. 1981, ch. 91%, par. 120.10.

Again, I must disagree with the majority’s interpretation of the statute. First, the above mentioned sentence applies “if the individual elects to undergo treatment ***.” The individual cannot “elect *** treatment” unless he is first eligible to elect treatment; the individual is not eligible to elect treatment unless the requirements of section 8 are first satisfied. (People v. Rohman (1983), 117 Ill. App. 3d 55, 58.) Section 8 does not instruct the trial court to seek the advice of “licensed programs” when evaluating the individual’s claim of drug addiction. Furthermore, the above mentioned sentence should be read in conjunction with the very last sentence of the second paragraph, which provides that “no individual may be placed under supervision unless a licensed program designated by the Commission accepts him for treatment.” Reading the two sentences together, it becomes apparent the court is authorized to order an evaluation simply to allow the licensed program to decide for itself whether it will accept an otherwise “eligible” individual for treatment (section 8 also provides that “an eligible addict may not be admitted to a treatment program, however, unless the authorities concerned consent as hereinafter set forth” (Ill. Rev. Stat. 1981, ch. 91%, par. 120.8); see also section 11 (Ill. Rev. Stat. 1981, ch. 91%, par. 120.11)). More specifically, the above quoted passage of the fourth sentence of the second paragraph of section 10 empowers the trial court to completely avoid the application of the Act “if the court, acting on *** other information *** determines that the individual is not an addict ***.” (Emphasis added.) The decision whether the defendant is an addict, and eligible under section 8 to elect treatment, is wholly within the discretion of the trial court. (People v. Benedetto (1981), 102 Ill. App. 3d 10, 20; cf People v. Warren (1977), 69 Ill. 2d 620, 627-28.) The decision whether the defendant, if the court finds him to be an addict, is to be. admitted as a treatable addict into a licensed program is within the discretion of the licensed program. (Section 7 of the Act (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.7) states that the decision of the drug abuse commission to deny or discontinue treatment is not appealable.) In the instant case, the trial court was not obligated to order an evaluation of the defendant because the defendant was not eligible to elect treatment. Therefore, I would affirm the decision of the trial court.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK ROY BREWER, Defendant-Appellant.
    Third District
    No. 3-82-0873
    Opinion filed August 24, 1983.
    Rehearing denied October 14, 1983.

      Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Frank Roy Brewer, appeals his convictions for attempted indecent liberties with a child and indecent solicitation following a jury trial in Tazewell County. The defendant was sentenced to an extended term of imprisonment for 12 years on the attempt conviction.

The defendant has raised numerous issues on appeal, i.e., that (1) his identity was not proved beyond a reasonable doubt; (2) reversible error occurred when the trial court allowed over defendant’s objection, evidence of other crimes under a modus operandi exception to the general rule barring such evidence; (3) he was denied effective assistance of counsel when his court-appointed attorney (a) resumed representation following the disclosure of an alleged conflict of interest, (b) failed to seek suppression of the identification testimony; (4) his conviction for indecent solicitation must be vacated since it was based upon the same act as his conviction for attempt; (5) the imposition of a recoupment order for attorney fees was improper because, (a) the statute authorizing same is unconstitutional, (b) the defendant was denied adequate notice and hearing, and (c) the assessment of $2,000 was arbitrary.

The facts indicate that on August 16, 1982, six-year-old Adam Olinski and seven-year-old Jeremy Bamber stopped at Lincoln Park in Washington, Illinois, to play on the swings and merry-go-round on their way to school. At the park they saw a man, later identified as the defendant, who gave them cigarettes. At the defendant’s request, Bamber left his friend alone momentarily, to continue playing on the park equipment. At this time the defendant unzipped his pants, exposed his penis and asked the Olinski boy if he would “suck his pecker” for $5. The child refused but did not tell his parents about the incident until the following day.

Based upon descriptions given by the boys, the police asked each of them if they could identify the individual from a group of six photographs. Each child selected the defendant’s photograph as the man in the park. Later each boy identified the defendant in open court.

On appeal, the defendant contends that the identification testimony was not clear and convincing because there were discrepancies in the boys’ testimony with regard to their description of the man’s clothing and the color of his hair, etc.

The defendant contends that the testimony of the boys changed from an earlier trial of the defendant which ended in a mistrial when the jury was unable to agree on a verdict.

The State acknowledges that while there were some discrepancies in the children’s testimony, the trier of fact was in the best position to afford the requisite weight to be given such testimony. We agree.

Where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused (the defendant admitted being in the park on the day in question but denied meeting the boys), providing the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

In determining the admissibility of identification testimony, the following factors should be considered: (1) the opportunity to view the defendant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the defendant; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) The weight to be given regarding identification testimony is a question for the trier of fact and that determination will not be disturbed unless it is so contrary to the evidence that it cannot be justified. People v. Smith (1977), 52 Ill. App. 3d 53, 367 N.E.2d 84.

In light of the foregoing factors, we believe it is apparent that the witnesses’ in-court identification of the defendant-was sufficiently reliable to support the defendant’s conviction. Each child had ample opportunity to view the defendant during the course of their encounter with him. Their testimony concerning the events of the day in question reflects sufficient attention to detail when measured in light of what children of their age would reasonably be expected to recall about such an incident. Their descriptions of the defendant were reasonably accurate in view of their ages, despite the fact that they were easy prey for the skilled cross-examination techniques of a trial lawyer. Each description accurately depicted an older individual with black and gray hair who had a large nose. Their failure to notice the defendant’s tattoos, while important, was not critical. Their photographic identification was unequivocal and sufficiently close in time to the incident to be reliable. Their in-court identification was positive.

While we are aware that in cases dealing with alleged sexual crimes against children, accusations are “easily made, hard to prove, and harder to be defended” (People v. Everhart (1974), 22 Ill. App. 3d 727, 317 N.E.2d 720), the testimony need not be so crystal clear that it is perfect (People v. Voight (1979), 72 Ill. App. 3d 472, 391 N.E.2d 219; People v. Newbern (1974), 18 Ill. App. 3d 532, 310 N.E.2d 42). Minor discrepancies in a child’s testimony do not necessarily render the testimony incompetent, unbelievable or necessarily impeached. People v. Sharp (1943), 384 Ill. 503, 51 N.E.2d 554.

We believe that the identification evidence presented sufficiently established the defendant’s guilt beyond a reasonable doubt. People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.

Next, the defendant claims he was denied a fair trial when the trial court denied his motion in limine to prevent the State from introducing evidence of other crimes at defendant’s retrial.

While evidence that the defendant has committed other crimes is inadmissible to show that he has a propensity to commit crimes generally, or to show that he has a propensity to commit certain crimes specifically (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489), such evidence is admissible if relevant to show identity by way of proving a modus operandi (common design) in the commission of the prior and current crimes. (People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608.) While the crimes need not be “identical” to be admissible, they should share features that are distinctive or peculiar. People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470; People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074.

The State sought admission of evidence of other crimes committed by the defendant to prove the defendant’s identity in the case in question. The other crimes evidence consisted of the testimony of three children to whom the defendant made offers of money in exchange for acts of oral copulation.

The State argued that a modus operandi was established by the following similar features: (1) all victims were young children; (a) all offers were of oral-genital contact; (3) all victims were offered something of value in return for the act; (4) all victims were secluded from the public. The trial court ruled that evidence of the defendant’s other crimes would be admitted provided there was evidence that the defendant offered Adam Olinski money.

When the Olinski boy testified that he was offered $5 to perform an act of oral copulation, the trial court allowed the evidence of the defendant’s other crimes to be admitted.

We believe the similar features between the various incidents describe such a distinctive pattern of criminal behavior that it was relevant to show the defendant’s identity as the perpetrator of the offenses charged. People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.

The defendant’s argument that there were only “superficial similarities” between the crimes previously committed and the instant charges is without merit. Such distinctions as how the request for fellatio was phrased, i.e., “blow job,” the different amounts of money offered and the various locations, the range of the children from six to 10 years old, are in our opinion merely meaningless distinctions.

Moreover, the probative value of the evidence of other crimes, which was directed at the issue of identity, far outweighed any prejudice to the defendant. Simply because the evidence admitted, along with other evidence presented, resulted in the defendant’s convictions, does not establish prejudice which outweighed its probative value. To the contrary, the evidence on the issue of identity was needed because it was the only contested issue in the trial.

For these reasons we believe the trial court properly admitted such evidence.

The defendant also contends that he was denied his sixth amendment right to the effective assistance of counsel by reason of an alleged per se conflict of interest on the part of his court-appointed counsel.

The defendant initially registered his dissatisfaction with the representation of his appointed counsel, J. Peter Ault, in a pro se motion to dismiss counsel filed 11 days before defendant’s first trial. At a hearing on the motion the defendant informed the court that the basis for his dissatisfaction with his court-appointed counsel stemmed from the fact that (1) he did not like the way counsel spoke to defendant’s sister, (2) he wanted a statement of facts from his counsel, not just the police reports, (3) he wanted a preliminary hearing after he had been indicted. When the defendant was informed by the court that these reasons did not establish a conflict of interest or ineffective representation by counsel so as to warrant his dismissal and the appointment of new counsel, the defendant informed the court that he would then represent himself without counsel.

At this point the defendant informed the court that he had a conversation with his attorney at the jail whereby the issue of possible remuneration was discussed based upon defendant’s disclosure that he had $3,800 coming to him from his former job. The defendant contended that his attorney told him he could “fight more” for him if he was paid rather than court appointed. Ault acknowledged that the defendant had mentioned his back pay but denied any remunerative motive or that he would “fight more” for the defendant if he were retained on a private basis.

When the court explained to the defendant that it would not allow him to retain his court-appointed counsel on a private basis, the defendant withdrew his remarks about the alleged colloquy with his attorney regarding possible remuneration.

The State contends the factual claim asserted by defendant as supporting his conflict of interest argument on appeal is therefore missing and we should decline to pass upon the issue where the record is barren of any basis for judgment.

The State further contends that since the issue was not preserved in the defendant’s post-trial motion, it was therefore waived for purposes of appeal (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227). In this regard it must be noted that independent counsel entered his appearance on defendant’s behalf after he was found guilty but before all post-trial motions were disposed of and the issue, while apparently available to be presented, was not.

Nevertheless, we will pass upon the merit of defendant’s argument by noting that it is apparently based upon nothing more than personal animosity articulated in vague and unsubstantiated charges. The defendant’s argument fails to establish where defense counsel’s loyalty and commitment to his client were undermined by some other interest, pressure or responsibility. People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169.

Before a reviewing court may reverse a conviction without requiring a showing of prejudice to the defendant, a positive basis must be found for concluding that an actual conflict existed. People v. Good (1979), 68 Ill. App. 3d 333, 385 N.E.2d 911.

On the morning of defendant’s first trial, he made several pro se motions which were denied. He was also informed that he was eligible for an extended-term sentence if he were convicted. Following the noon recess, the defendant changed his mind and acquiesced in Ault’s representation, which extended through both trials. It was not until the defendant was found guilty that he then alleged his court-appointed counsel was incompetent.

On the contrary, the record speaks for itself of a vigorous and skillful defense whereby counsel was able to create enough doubt with regard to the identification of the defendant that a hung jury resulted from the defendant’s initial trial. The defendant made no complaint of his court-appointed counsel’s effectiveness then.

As a result of defendant’s conviction following his second trial, the defendant claims he was denied the effective assistance of counsel because (1) a motion to suppress identification evidence was not filed, and (2) the testimonial competence of minor children was not raised.

To prevail in his argument, the defendant must show that either of the above would have been successful and, as a result, the outcome of the trial would have been different. People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610.

Specifically, the defendant contends that the pretrial photographic lineup was unduly suggestive, thereby tainting the witnesses’ in-court identification and creating a substantial likelihood of an irreparable misidentification. (Foster v. California (1969), 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127.) Certainly, complete exactitude of features is not required in photographic identification situations. (People v. Bey (1969), 42 Ill. 2d 139, 246 N.E.2d 287.) Since individual facial features and hair styles and length differ, precise correspondence of all subjects in a photographic array is an impossible task. (People v. Harrell (1982), 104 Ill. App. 3d 138, 432 N.E.2d 1163.) There is no requirement that all men placed in a lineup must be physically identical. Claims that there are significant differences indicative of suggestiveness between the age, size and appearance of a suspect and other members of a lineup may go to the weight of the evidence and not necessarily to its admissibility. People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 408 N.E.2d 23.

The defendant’s claim that the photographic array was unnecessarily suggestive is premised on the fact that two of the six photographs depict younger men while the remaining four photographs depict older men. Of the older men, only the defendant’s photograph showed a man without glasses. In our opinion the presence or absence of glasses in a photograph would be equivalent to a picture of individuals with or without a beard or mustache or some other facial feature. The question on review is whether all features when viewed in toto at once, result in recognition which is made instantaneously or not at all. People v. Hefner (1979), 70 Ill. App. 3d 693, 388 N.E.2d 1059.

We do not believe that when the photographs are viewed from the totality of the images observed that the array was unnecessarily suggestive such as to invalidate the identification. People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819 (photographic identification procedure was not impermissively suggestive even though three of the photographs were of the defendant, and the defendant was the only man shown wearing a hat and sunglasses).

Even assuming that the pretrial identification procedure employed was suggestive, it does not necessarily follow that the in-court identification was inadmissible. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) The linchpin in determining the admissibility of identification is reliability. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) We have previously discussed the factors which indicate a witness’ ability to make an accurate identification and found them to collectively support the in-court identification made in the case at bar. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

Under these circumstances, we believe the witnesses were close enough for a sufficient length of time under ideal conditions to adequately observe the defendant and as such, there existed a more-than-adequate basis to support an in-court identification of the defendant, regardless of the alleged suggestiveness in the pretrial photographic identification procedure. People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332.

With respect to defendant’s allegation that his court-appointed counsel should have challenged the competency of the Olinski and Bamber boys, we note that the competency of a minor to testify is determined by his degree of intelligence rather than his age. In re Cruz (1979), 76 Ill. App. 3d 565, 395 N.E.2d 388.

The issue is whether the minor is sufficiently mature to (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; (4) appreciate the moral duty to tell the truth. People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10.

We acknowledge and respect the trial court’s ability to observe the demeanor of a minor witness and will not reverse the trial court’s allowance of such testimony unless there has been either an abuse of discretion or a manifest misapprehension of legal principles. People v. Goble (1976), 41 Ill. App. 3d 491, 354 N.E.2d 108.

The record indicates that both boys, although only six and seven years old, knew their names, where they lived, the name of the school they attended, what grade level they had attained, and that they were missing school to testify. Preliminary questioning from both the prosecution and defense, along with their substantive testimony regarding the incident in the park, clearly indicated their degree of intelligence, observation and ability to recall and recollect what they had seen and heard on the day in question. They both indicated to the trial court that they understood not only what the truth was but the importance of telling the truth in their testimony.

While defense counsel was able to point out instances where their testimony was not totally consistent, this would go to their credibility, not their competency. People v. Brown (1980), 91 Ill. App. 3d 163, 414 N.E.2d 249.

In the final analysis, the defendant was entitled to competent, not perfect representation. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) We believe the defendant received competent representation in his defense. The law requires no less and the defendant is entitled to no more. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

Next the defendant contends that despite the fact that no sentence was imposed upon his conviction for indecent solicitation, the conviction itself must be vacated because it was based upon the same physical act as his conviction for attempt or was at least a lesser included offense of attempt. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

The State correctly points out that separate acts were committed by the defendant in the commission of each offense, i.e., indecent solicitation occurred when the defendant asked the child to perform an act of fellatio, while the offense of attempt (indecent liberties with a child) occurred when the defendant took a “substantial step” (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 11 — 4(a)) towards the commission of the offense by unzipping his pants and exposing his penis to the victim.

While it is clear that separate acts were committed by the defendant, it is equally clear that the act of exposure alone without the request for fellatio would not have established the offense of attempt (indecent liberties) as a matter of law. For these reasons the defendant’s conviction for indecent solicitation will be vacated.

Defendant’s final issue presented for review concerns a challenge to the constitutionality of the Illinois recoupment statute (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1), which provides in part:

“Payment for Court-Appointed Counsel.
(a) Whenever under either Section 113 — 3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for some or all of the costs of court-appointed counsel. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113 — 3 of this Code and any other information pertaining to the defendant’s financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court’s own motion or on motion of the State’s Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.”

Specifically defendant contends that (1) the statute fails to provide for notice of hearing prior to the imposition of a recoupment order, (2) the lack of standards for imposing a recoupment order, and (3) the arbitrary nature of the recoupment order in the case at bar was improper.

Initially we must observe that the defendant here received notice of hearing and was present in court with his attorney when the issue of recoupment was passed upon by the trial court. Furthermore, our review of the record indicates the defendant had nothing to contribute to the proceedings insofar as his financial circumstances were concerned.

Certainly the constitutional guarantee of due process embodies the presumptive requirement of notice and a meaningful opportunity to be heard before the State acts finally to deprive a person of his property. Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.

In our view the defendant was not deprived of the opportunity to present whatever information he desired on the question of whether recoupment should be ordered, and if so, how much of his attorney fees he would be responsible for. Obviously the defendant’s affidavit of assets and liabilities was relevant to such an inquiry, and the defendant was present to supplement the information on his financial condition if he chose to do so. He did not.

As far as the alleged lack of standards is concerned, we note that the statute requires the court to view the totality of the defendant’s financial condition for the purpose of determining (1) if the defendant will be able, at some point in time following his incarceration, to contribute to the cost of his legal defense undertaken by court-appointed counsel; (2) if the defendant is found to have the ability to make some future payment, how much will the defendant be able to afford to repay. Contrary to defendant’s argument, the recoupment statute does not automatically require reimbursement regardless of the defendant’s financial condition.

For these reasons we believe the defendant was afforded due process of law by reason of the notice he received, the opportunity to be heard and the standards the court followed in making the determination that recoupment was proper in this case, i.e., (1) the defendant had $3,800 coming from a previous employer; (2) defendant’s wife was gainfully employed; (3) that the defendant and his wife had no children; (4) that the defendant had no significant outstanding debts; (5) that the defendant was given one year following his release from the Department of Corrections to comply with the recoupment order.

Finally, the defendant contends that the recoupment order itself was arbitrary in that it provided for reimbursement of $1,000 each for two different public defenders that represented the defendant at various stages of the proceedings. (It should be noted that the reimbursement was directed toward the office of the public defender and not to the individual attorneys involved.) Nevertheless, the defendant contends that an award of $1,000 as reasonable attorney fees for each of two court-appointed attorneys in defense of the felony proceedings was arbitrary. We disagree.

In People v. Johnson (1981), 87 Ill. 2d 98, 429 N.E.2d 497, our supreme court established guidelines for determining a reasonable fee award. Among the criteria they recommended would be such factors as normal hourly fee charged for comparable services, the time spent in the case, the nature of the services rendered, the attorney’s skill and experience and the complexity of the case and expenses of trial.

In our view, the fact that the recoupment statute does not provide a specific rate at which legal services are billed allows the trial court the discretion it needs to properly apply the various criteria recommended in Johnson to the facts and circumstances of the individual case.

For these reasons we believe the recoupment order was properly entered in the case at bar.

The judgment and sentence of the circuit court of Tazewell County is affirmed as to defendants’ conviction for attempt (indecent liberties with a child) and defendant’s conviction without sentence for indecent solicitation is reversed.

Affirmed in part, reversed in part.

ALLOY and BARRY, JJ., concur.


author: JUSTICE ALLOY

text:
    VERLYN VAUGHN, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION et al., Defendant-Appellee.
    Third District
    No. 82—836
    Opinion filed September 19, 1983.

      Ted W. Dennis and James J. Elson, both of James J. Elson, Chartered, of Canton, for appellant.
    Rebecca S. Riddell, of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria, and James E. Lloyd, of Claudon, Lloyd, Barnhart & Beal, Ltd., of Canton, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the trial court dismissing with prejudice, plaintiff’s action against both defendants. The order dismissed for failure to state a cause of action, on the basis that the complaint sounded in tort and no cause of action in tort could stand under the reasoning of the Illinois Supreme Court in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

Plaintiff, Verlyn Vaughn, bought a 1977 Chevrolet truck from Art & Gene’s Chevrolet, Cadillac, Oldsmobile, Inc. Shortly thereafter he began having trouble with the brakes of the truck. The brakes were checked and repaired by Art & Gene’s several times over the next 18 months.

On November 13, 1978, while Vaughn was driving the truck on business, the brakes locked. The truck overturned, damaging the vehicle itself and a fuel oil tank which was attached to it, and causing oil to spill from the tank. Vaughn was not injured.

Vaughn brought suit against defendants Art & Gene’s and General Motors, the manufacturer of the truck, under the tort theory of product liability, claiming damages resulting from the accident and from loss of the use of the truck in business. The court below interpreted Moorman to bar recovery in tort where there is no claim for personal injury or property damage beyond damage to the defective product itself and dismissed the suit. We do not agree.

Both parties agree that Moorman and the cases cited therein comprise the controlling law in this case. Both quote Moorman in support of their position. This is not remarkable considering the nature of that opinion. In Moorman the Illinois Supreme Court outlined the essential differences between tort and contract law in the area of recovery for defective products. This is not a simple distinction.

At first glance the court’s distinction between “physical injury,” which is recoverable in tort, and “economic loss,” which is within the realm of contract law, would seem to bar cases such as that before us where the only damages claimed are for repairs and loss of use of the defective product itself. However, a closer examination of the reasoning in Moorman shows that the court did not intend the nature of the damages to be the sole factor used to distinguish a tort claim from a contract claim.

The court in Moorman quotes with approval the reasoning of Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co. (3d Cir. 1981), 652 F.2d 1165, 1173:

“ '*** [T]he items for which damages are sought, such as repair costs, are not determinative. Rather, the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk, and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.’ ” (91 Ill. 2d 69, 85.)

The Illinois court goes on to say:

“We agree with the rationale expressed in Pennsylvania Glass Sand Corp. and hold that, where only the defective product is damaged, economic losses caused by qualitative defects falling under the ambit of a purchaser’s disappointed expectations cannot be recovered under a strict liability theory.” (Emphasis added.) (91 Ill. 2d 69, 85.)

It is clear from this statement that the element of causation is essential to the court’s holding in Moorman. As important as the court’s distinction between “physical injury” and “economic loss” is, their distinction between damages caused by a qualitative defect (i.e., by failing to perform up to purchaser’s expectations) and those caused by a sudden or dangerous occurrence. The former has its remedy in contract law, but the latter, the “sudden or dangerous occurrence,” is more appropriately suited to tort theory. See 91 Ill. 2d 69, 86.

In order to determine whether an action is barred by Moor-man we must look beyond the damages claimed to the facts of the case and note the causative factors involved in the claim. In Moorman the plaintiff purchased a grain storage tank with the expectation that it would meet a certain standard of durability. Over a period of months a crack developed which rendered the tank unsuitable for plaintiff’s business. The plaintiff did not discover the crack until he unloaded the tank. This economic loss caused by a qualitative defect fits squarely within the scope and remedies of contract law.

In the instant case, the damages were not caused by deterioration or by a product which simply failed to meet the needs of Mr. Vaughn’s business; rather, the damage was caused by what is clearly a sudden and dangerous occurrence; the truck’s brakes locked causing it to turn over. Had Vaughn been injured in the accident there would be no question but that ease sounded in tort. For the case to become a “benefit of bargain” contract suit simply because Vaughn escaped injury defies the logic of Moorman and the authorities cited therein.

The court quotes Dean Prosser as envisioning just the situation which is now before the court:

“ ‘There can be no doubt that the seller’s liability for negligence covers any kind of physical harm, including not only personal injuries, but also property damage to the defective chattel itself as where an automobile is wrecked by reason of its own bad brakes ***. ***’ ” (Emphasis added.) (91 Ill. 2d 69, 86.)

The court also quotes Pennsylvania Glass Sand in the same vein:

“ '*** [T]ort law imposes a duty on manufacturers to produce safe items, regardless of whether the ultimate impact of the hazard is on people, other property, or the product itself ***’ ” (Emphasis added.) 91 Ill. 2d 69, 84-85.

In the case at bar, there is no claim for personal injury or property damage to anything other than the defective product itself. However, the authorities cited in the Moorman case do not consider this a bar to tort recovery. A correct interpretation of Moorman shows that “economic loss” as used in that opinion does not mean simply monetary damages. Rather the idea of “economic loss” in Moorman is closely allied to the contract concept of loss of benefit of bargain.

Moorman points out that the tort theory of products liability is not aimed at granting the benefit of bargain. If the product simply quits working, the injured party is left to his contract relief. If, however, the defect creates a dangerous condition and causes damages of a sudden and calamitous nature, the loss, even if it is limited to the product itself, is considered property damage and the injured party has a tort action.

The Moorman decision does not bar the case presently before this court. Rather, Moorman supports the plaintiff’s cause of action.

We reverse the order of the court below, reinstate plaintiff’s cause of action, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    MARY ALICE KNOBLOCH, Ex’r of the Estate of Neal E. Flake, Deceased, Plaintiff-Appellee, v. PEORIA AND PEKIN UNION RAILWAY COMPANY et al., Defendants—(Lisa M. Stambaugh, Intervening Appellant).
    Third District
    No. 3—83—0058
    Opinion filed September 19, 1983.

      Gary W. Becker, of Rerat Law Firm, of Minneapolis, Minnesota, and David B. Daley, of Sutkowski & Washkuhn, of Peoria, for appellant.
    Rennick, Rennick & Rennick, of Toulon, and Bruce Becker, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

On October 20, 1981, Neal E. Flake was crushed to death while performing a loading operation for his employer, the Peoria and Pekin Railway Company. At the time of his death, Flake was divorced. He had one child, Daniel, age 6, who lived with his ex-wife. Flake was then living with Lisa M. Stambaugh, the intervenor-appellant. At the time of Flake’s death, Stambaugh was pregnant with his child. That child, Erica Flake, age 1, was born on June 7,1982.

On January 22, 1982, Mary Alice Knobloch, Flake’s sister and executrix of his estate, filed a wrongful death action as Flake’s personal representative under the Federal Employers’ Liability Act (hereinafter F.E.L.A.) (45 U.S.C. sec. 51 (1976)). The F.E.L.A. suit named Daniel Flake as the decedent’s only next of kin and thus the sole beneficiary entitled to damages. On July 22, 1982, the probate court for Peoria County found Erica Flake to be the illegitimate daughter of Neal Flake. The pleadings'in the F.E.L.A. action were subsequently amended to include Erica as Neal Flake’s next of kin.

Lisa M. Stambaugh, as the mother and guardian of Erica Flake, sought to intervene in the F.E.L.A. claim. Her efforts were unsuccessful and she brought the instant appeal, alleging the trial court erred in denying her petition to intervene. We agree.

The F.E.L.A. action is the exclusive remedy available to Neal Flake’s survivors. (Chicago, Rock Island, & Pacific Ry. Co. v. Schendel (1926), 270 U.S. 611, 70 L. Ed. 757, 46 S. Ct. 420.) Because Flake was divorced at the time of his death, the only possible beneficiaries under the F.E.L.A. claim are Erica Flake and Daniel Flake. (45 U.S.C. sec. 51 (1976).) Their recovery is restricted to their pecuniary loss, which has been defined as follows:

“[T]he care, attention, instruction, training, advice and guidance which the evidence showed [the decedent] reasonably might have been expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed.” Norfolk & Western Ry. Co. v. Holbrook (1915), 235 U.S. 625, 629, 59 L. Ed. 392, 393, 35 S. Ct. 143, 144.

The intervenor-appellant asserts that the claims for support of the two minor children of the decedent are different and in direct conflict with each other. She further asserts that the personal representative has a conflict of interest in pursuing the F.E.L.A. claim due to animosity between the representative and Erica Flake, the decedent’s illegitimate daughter.

From the facts contained in the record on appeal, it is apparent that a conflict of interests exists between the two Flake children regarding proof of their damages in the F.E.L.A. action. Neal Flake was living with Lisa Stambaugh at the time of his death. According to assertions made by Lisa Stambaugh, she and Neal Flake would have been married, had he lived. Erica would have lived with them following her birth on June 7, 1982, and would have received Neal Flake’s direct care, attention, supervision, training and guidance. Daniel Flake, the decedent's son, was living with the decedent’s ex-wife. Each child had a different mother and lived apart from the other. Because Neal Flake could not have lived in both households simultaneously, the amount of attention and care given to Daniel and Erica would have differed dramatically. Thus, the children’s claims for their pecuniary losses resulting from their father’s death are qualitatively different and in direct conflict.

This adversity of interests is relevant to the proof of pecuniary loss as well as to the apportionment of damages. Because this is so, Lisa Stambaugh, as the mother and guardian of Erica Flake, is entitled to intervene in the underlying F.E.L.A. claim and is not limited to intervention in ancillary proceedings for the distribution of the award between the beneficiaries. See Illinois Pattern Jury Instruction, Civil, No. 160.20 (2d ed. 1971).

Conflicting evidence of ill will between Mary Knobloch, the decedent’s personal representative for purposes of the F.E.L.A. claim, and Erica Flake, is contained in the record. An affidavit by Lisa Stambaugh asserts the personal representative has refused to treat Erica as a member of the Flake family and has demonstrated ill will toward the child. In response, the personal representative filed an affidavit asserting no ill will exists. Rather than resolving the question of whether ill will exists, as the personal representative urges on appeal, her affidavit, when read in concert with that of Lisa Stambaugh, merely underscores the conflict between the personal representative and the child of the intervenor-appellant.

We find the Federal authority of Smith v. Clark Sherwood Oil Field Contractors (5th Cir. 1972), 457 F.2d 1339, cert. denied (1972), 409 U.S. 980, 34 L. Ed. 2d 243, 93 S. Ct. 308, persuasive in the case at bar. Although Smith is a Jones Act case, that Act specifically incorporates the provisions of the F.E.L.A. and applies them to seamen and shippers. (46 U.S.C. sec. 688 (1976).) Thus, an interpretation of the Jones Act is applicable to a F.E.L.A. problem. Kernan v. American Dredging Co. (1958), 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394.

In Smith, the personal representative brought suit on behalf of the decedent’s widow and her four legitimate children and on behalf of an illegitimate child. As with a F.E.L.A. action, a claim for damages under the Jones Act is available to an illegitimate child. Levy v. Louisiana (1968), 391 U.S. 68, 20 L. Ed. 2d 436, 88 S. Ct. 1509.

The widow brought a petition for intervention, claiming that her interest and the interests of her four children were in conflict with those of the illegitimate child: The trial court denied the intervention petition but the Fifth Circuit Court of Appeals reversed and remanded the case, permitting the widow to intervene. The court found an inherent conflict of interest in proving pecuniary loss for two classes of children.

In discussing the Jones Act provision giving the personal representative the sole power to litigate, settle and compromise all claims, the court stated as follows:

“In the case at hand the conflicting nature of the beneficial interests prevented the personal representative from acting for the benefit of all the alleged beneficiaries and the result was that a fiduciary was charged with a duty that he could not effectively perform. Such an illogical result could not have been the intent of Congress.
Having concluded that Irene Smith [the widow] and her four children are not adequately represented by Rodney Smith [the personal representative], it follows that she qualifies for intervention ***.” Smith v. Clark Sherwood Oil Field Contractors (5th Cir. 1972), 457 F.2d 1339, 1345.

The Smith court reviewed the manner in which pecuniary loss is determined, noting that the loss is based upon a reasonable prediction of how much financial support and personal guidance a particular beneficiary would have received had the decedent lived. Factors to be considered include the number of dependents in a family, the estimated income of the deceased, the probability of a child attending college, the amount of time the deceased would have spent with his children and the decedent’s past history of contributions to his dependents. In applying those standards to the facts in Smith, the court determined that the personal representative could not adequately represent the interests of both the legitimate children and the illegitimate child. The court pointed out that the assertion of one beneficiary necessarily argued for a dimunition of recovery for another. Smith v. Clark Sherwood Oil Field Contractors (5th Cir. 1972), 457 F.2d 1339, 1343-44.

The same reasoning applies in the case at bar. We reject the argument by the personal representative that the Smith case is not applicable because it related to the apportionment of damages in Louisiana litigation and Illinois juries apportion damages in F.E.L.A. claims only in ancillary proceedings. As we have earlier pointed out, the conflict between the beneficiaries arises when the pecuniary loss is being determined. Also, the settlement in Smith was discarded, with directions that the widow be allowed to participate in any future determination of loss.

The fact that a question of paternity existed regarding the illegitimate child in Smith, while Erica Flake has been determined to be the child of Neal Flake in the present case, does not render the Smith case inapplicable. The conflict of interests in proving pecuniary loss still exists between the classes of children represented by Daniel and Erica Flake.

We suggest that the appointment of a disinterested third-party, such as a banking institution, as personal representative in a F.E.L.A. claim might be a way to avoid conflict in cases of this sort. However, we realize that such an appointment in the case at bar is untimely given the present status of the case.

The personal representative argues that the record on appeal is inadequate and that the denial of the petition to intervene is not a final, appealable order. The common law record filed on appeal is adequate. The legal arguments presented by counsel on the question of intervention are contained in the record. Because arguments were made in chambers, no court reporter was present. The trial court’s order denying the petition to intervene was previously found to be appealable by this court. We need not discuss the question further.

For the foregoing reasons, the order of the circuit court of Peoria County denying the petition of Lisa M. Stambaugh to intervene is reversed and this cause is remanded with directions that Ms. Stambaugh be allowed to intervene, as the mother and guardian of Erica Flake, in the underlying F.E.L.A. claim.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


text:
    NAZARENO VITALE, d/b/a Joe’s Pizza, Plaintiff-Appellant, v. THE ILLINOIS DEPARTMENT OF REVENUE, Defendant-Appellee.
    Third District
    No. 82-837
    Opinion filed September 23, 1983.

      . Patrick B. Mathis, of John J. Vassen, P.C., of Belleville, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal comes from an order of the Illinois Department of Revenue assessing a sales tax deficiency against Nazareno Vitale, doing business as Joe’s Pizza, in Aledo, Illinois. Also assessed was a fraud penalty for intentionally falsifying information on the sales tax returns. The decision of the Department of Revenue was upheld by the circuit court of Mercer County on administrative review.

The books and records of the plaintiff, Nazareno Vitale, were inadequate and insufficient for the Department of Revenue to verify the sales tax liability of Mr. Vitale incurred in the operation of Joe’s Pizza. Therefore, the Department of Revenue auditor, Gary Armel, used certain assumptions to calculate the tax liability for the years 1976, 1977 and 1978. First, Mr. Vitale’s books and records did not reveal the total amount he had expended to purchase supplies for his business during the three-year period. To compute this missing financial record, Mr. Armel checked with over half of Mr. Vitale’s major suppliers to determine the amount of supplies they had actually delivered to Joe’s Pizza. Comparing the amount of supplies actually delivered with the amount shown on Mr. Vitale’s books and records, the Department of Revenue auditor arrived at a percentage figure by which the books and records understated the amount of supplies purchased. Because of the large amount of time and work it took in extracting this information, Mr. Armel applied these various percentages of error to plaintiff’s remaining smaller suppliers to determine plaintiff’s actual purchases from these suppliers.

Another technique used by the auditors to fill the gaps in the taxpayer’s books and records involved another assumption. Based on an average mark-up over cost of 36%, the auditor calculated the gross retail sales in Mr. Vitale’s business for the years 1976, 1977 and 1978. The source of the 36% figure was the Department of Revenue which based its determination on a survey of various pizza restaurants conducted by Gilbert Scheller. Mr. Scheller testified as to the restaurant records he surveyed and submitted to the Department to determine the mark-up figure. Furthermore, Scheller was subject to cross-examination on how he arrived at the mark-up figures from the businesses he surveyed. The pizza restaurants surveyed included Pizza Hut and Angelo’s.

Using the two auditing techniques previously discussed, and applying the percentage assumptions calculated using both techniques, the Department of Revenue prepared corrected tax returns for the taxpayer. Those corrected tax returns demonstrated a substantial understatement of tax for all three periods. Specifically, the plaintiff understated his receipts by as much as 203% in 1976, 150% in 1977, and 127% in 1978. The taxpayer contends on appeal that the technique used by the Department of Revenue cannot sustain the deficiency tax which was assessed, and cannot constitute clear and convincing evidence of fraud.

The Illinois law establishing a liability for retailer’s occupation tax, or sales tax, provides that corrected tax returns prepared by the Department of Revenue are prima facie proof of the correctness of the amount of tax due. (Ill. Rev. Stat. 1981, ch. 120, par. 443.) However, the corrected returns are only prima facie proof if the Department has met some minimum standard of reasonableness in preparing the corrected returns. (Fillichio v. Department of Revenue (1958), 15 Ill. 2d 327, 155 N.E.2d 3.) In this case, it would appear that the techniques used by the Department of Revenue were not arbitrary or unreasonable, but rather were based on reasonable statistical assumptions. The Department presented its case with exhibits, including its audit files and work papers, and produced its witnesses, Gary Armel and Gilbert Scheller. The audit techniques used by the Department, techniques which were made necessary only by reason of the plaintiff’s failure to maintain adequate records, were not designed by whim or caprice, but rather represented a studied effort to reconstruct with limited information, and much hard work, the taxpayer’s business records. The auditors used fair-minded statistical assumptions. This is all the law requires. (Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238.) To place a greater burden on the Department would reward the taxpayer for failing to keep the business records the law requires.

The taxpayer can overcome the Department’s prima facie case, but only if he produces competent evidence, identified with the taxpayer’s books and records, showing that the Department of Revenue’s corrected returns are inaccurate. (Masini v. Department of Revenue (1978), 60 Ill. App. 3d 11, 376 N.E.2d 324.) A taxpayer does not overcome the Department’s prima facie case merely by denying the Department’s, case or by suggesting hypothetical weaknesses. He must establish by documentary evidence that the hypothetical weaknesses are relevant to his business. (Copilevitz v. Department of Revenue (1968), 41 Ill. 2d 154, 242 N.E.2d 205.) At the administrative hearing, Mr. Vitale offered a number of hypothetical situations which, if true, would invalidate the auditing techniques and the statistical assumptions of the Department of Revenue. None of the hypothetical situations offered were identified with the taxpayer’s records so as to demonstrate that the corrected returns of the Department were inaccurate. For this reason, the taxpayer has failed in his burden of overcoming the prima facie proof offered by the Department of Revenue.

Finally, the plaintiff asserts that evidence of his fraud in filing the tax returns was not clear and convincing. The fraud alleged by the Department of Revenue would result in civil penalties under section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 443). A similar but criminal fraud penalty is provided for in section 13 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 452). In discussing that criminal penalty, our reviewing courts have determined that proof of fraud requires proof of the element of intent. (People v. L & M Liquors, Inc. (1976), 37 Ill. App. 3d 117, 345 N.E.2d 817.) Intent may be shown by circumstantial evidence. (People v. L & M Liquors, Inc.) In the instant case, where the plaintiff understated his receipts by as much as 200%, where the plaintiff’s bank deposits exceeded his gross receipts by $25,000 a year, and where in one year the plaintiff’s purchases exceeded his sales by 46%, coupled with the plaintiff’s total failure to maintain business records or to explain his underpayment of taxes, we agree with the Department of Revenue and the circuit court of Mercer County that the circumstantial evidence is sufficient to show clearly and convincingly that fraud was present.

In reliance on the authorities hereinabove set forth, and for the reasons previously discussed, the decision of the circuit court of Mercer County is hereby affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.