author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HANNA, Defendant-Appellant.
    Second District
    No. 82—360
    Opinion filed December 20, 1983.

      Leavitt & Schneider, of Chicago, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, William Hanna, was indicted in Lake County for two counts of murder as the result of the September 11, 1981, shooting of Richard Wells. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2).) He was found guilty by a jury and sentenced to 40 years in the Department of Corrections. He appealed.

The evidence showed the victim, Richard Wells, was shot while sitting in his car which was parked in front of 2214 Kristan Street in North Chicago. Several witnesses testified they observed the defendant approach the car on the driver’s side. Just before the defendant approached the car, there was testimony he was seen handling two pistols, a .25-caliber automatic and a .38-caliber derringer. After the defendant approached the car a shot was heard, and the defendant was observed moving from the car toward the yard of 2214 Kristan. One witness said he saw a “shiny” object in the defendant’s hand when he turned away from the car.

Transcripts of tape-recorded statements made by the defendant to investigating officers Zorzy and Millimaki on the date of the shooting were played to the jury while it viewed copies of the transcripts. In the statements, the defendant’s version of the event was that he asked “Rick-eye,” the victim, Richard Wells, for a ride home. “Rick-eye” agreed to do so for a dollar to cover the cost of gas. The defendant did not realize it was a four-door car, so he reached in, in back of the driver’s seat, to push it forward. At that time, there was a shot, and the defendant stated he believed the bullet passed through his hair. He dropped to the ground, and got up and began to run behind the house at 2214 Kristan. There was conflicting testimony as to who said: “No! That’s the way they went,” whereupon the defendant turned and ran back to the Tee Pee Liquor Store which was across the street and beyond a vacant lot from 2214 Kristin. When the police arrived at the scene, they took two of the witnesses to the occurrence, Waymon Callahan, who resided at 2214 Kristan, and the defendant to the station for questioning.

Callahan testified at trial that he saw the defendant later that afternoon at which time he went with the defendant to the back of Callahan’s house where the defendant dug two pistols out of the gravel. The defendant told him to take them into the house, where he hid them under a chair for about an hour and a half. The guns were picked up by the defendant and Ralph Peterson, his nephew. Callahan’s credibility was impeached during cross-examination when he testified he was a heavy drinker and admitted that he had previously told the police a lie concerning the shooting. He had told the police that the defendant did fall to the ground, that he thought the defendant had been shot, and that he had “seen three guys running across the house in the back of the alley on Kristan.” Callahan denied that any of his numerous traffic citations had been dismissed in return for his testimony in the instant case.

Another witness, Barbara Lynch, observed the defendant in back of 2214 near some rocks just after the shooting. When she first saw him, he was getting up. After he got up, he ran south, past the garage behind 2214 Kristan into the alleyway toward a fence. As he ran, he said “Someone call the police. Someone shooted [sic] at me.” She did not see anything in his hands, nor did she see him burying or discarding anything. She admitted on cross-examination she had stated in a prior conversation with the assistant State’s Attorney that at the time she saw the defendant, he was touching his head, as if looking for a wound.

One of the witnesses who had seen the defendant with the two pistols about a half hour before the shooting, testified he was talking with two other men in the vicinity of the driver’s side of the car in which the victim was seated, when he heard a shot fired from the direction of the car. He admitted he could not see between the buildings behind him, but he did not see anyone else near the car except the defendant. After the shot, he looked up at the car and saw the defendant’s hands in his pockets. He saw the defendant walking toward the bushes, looking around. He did not see a gun in the defendant’s hands and he did not see the defendant on the ground.

The issues raised by the defendant are:

I. Whether the court erred in denying defendant’s motion for a mistrial or a continuance due to the State’s alleged discovery violation in failing to provide the defendant with the names of rebuttal witnesses.

II. Whether the court erred in barring the testimony of R. A. Steindler as an expert witness.

III. Whether the court erred in limiting the cross-examination of certain State witnesses.

IV. Whether the defendant was proved guilty beyond a reasonable doubt.

I. Discovery Violation

The defendant argues the court erred when it denied his motion for a mistrial or continuance. The motion was made due to the State’s failure to disclose the existence of witnesses who would rebut the qualifications of his expert firearms witness, R. A. Steindler. The defendant argues that the nondisclosure of the existence of the rebuttal witnesses was a violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, which held that evidence material to the guilt or innocence of a defendant is subject to disclosure prior to trial. The defendant claims the court’s error in denying a mistrial or continuance denied him due process as guaranteed by the fifth and fourteenth amendments. U.S. Const., amends. V, XIV.

The State responds that no discovery violation occurred because it has no obligation to disclose witnesses until it “forms the intention to call them.” The State argues that until Steindler testified, it could not have known whether it needed to present rebuttal witnesses and, if so, which ones. Additionally, the State points out the error, if any, in failing to disclose the existence of witnesses was harmless. Rebuttal witnesses were never called to testify, and substantially the same evidence to which Steindler would have testified was testified to by another defense expert witness, Dr. DiMaio. Thus, the State posits the defendant has failed to show that he was prejudiced by virtue of its alleged discovery violation. Further, the State argues, correctly so, that no Brady violation occurred because the proposed testimony of the rebuttal witnesses would not have been favorable to the accused, and is not the type required to be disclosed to the defendant under Brady. Finally, the State points out the Illinois Supreme Court in People v. Cornille (1983), 95 Ill. 2d 497, 514, stated: “[E]very party *** has an obligation to verify the credentials of its expert witnesses.” Accordingly, the State asserts the defendant cannot now complain that he was prejudiced because he failed to do that which the State did do.

The defendant replies that it is evident the State formed its intent to call the rebuttal witnesses well in advance of trial since it had subpoenaed numerous rebuttal witnesses from different parts of the country. The defendant disagrees that Dr. DiMaio’s testimony cured any prejudice to the defendant caused by the disqualification of Steindler, since DiMaio’s “sole purpose” was to detail the medical effects of a distant gunshot vis-a-vis a contact shot upon the human body. Steindler’s expected testimony, on the other hand — according to the defendant’s offer of proof at trial — was that the bullet passed through an intermediate target and that “the target left an impression on the — nose of the bullet — the fragment that was recovered.”

Lastly, the defendant asserts that notwithstanding his duty to verify the credentials of his expert witness, the State’s failure to properly respond to the appropriate discovery orders, in effect, assisted Steindler in perpetrating a fraud upon the court.

“The reciprocal rules of discovery in criminal cases require the disclosure to the accused of those persons whom the prosecutor intends to call as witnesses. The critical element is the prosecutor’s intent, and until the prosecutor forms the intent to call a person as a witness there need be no disclosure, no matter how critical that person’s testimony is.” (People v. Hine (1980), 89 Ill. App. 3d 266, 267.)

Supreme Court Rule 412(a) requires the State to disclose to the defendant the names, addresses and substance of the testimony of witnesses it intends to call to rebut the defenses it has been advised the defendant intends to make, which disclosure is required to be made by the defendant to the State under Supreme Court Rule 413(d). (87 Ill. 2d Rules 412(a), 413(d).) Nevertheless, the State’s intent to call the witness is still the critical element. People v. Stinson (1976), 37 Ill. App. 3d 229, 234; People v. Manley (1974), 19 Ill. App. 3d 365, 371.

The State’s position here, of course, is that it could not have formed the intent to call the witnesses until Steindler testified at trial and became subject to impeachment. The defendant counters the State’s intent to call these witnesses “to discredit Steindler’s testimony and credentials as an expert” was formed well in advance of trial. The defendant points to the fact the witnesses had been brought in from various parts of the country, that the State used certain documentation from Cornell which was dated January 29, 1982 (about two months prior to trial) during its cross-examination of the witness, and that the State had been furnished Steindler’s curriculum vitae and a summary of his proposed testimony on March 1, 1982.

Neither party in this appeal squarely addresses the question whether the witnesses the State failed to disclose were indeed “rebuttal witnesses” required to be disclosed to the defendant under Supreme Court Rule 412(a).

Rebuttal evidence has been defined as that which is adduced by the prosecutor to explain, repeal, contradict, or disprove evidence given by the defendant. (People v. Carbona (1975), 27 Ill. App. 3d 988, cert, denied (1976), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114; People v. Bush (1981), 103 Ill. App. 3d 5, 14.) In the case at bar, no evidence had yet been offered by the defendant; the defendant had proceeded no farther than the qualifying of his expert witness. It is well established that before an expert witness may give an opinion on the facts of the case, opposing counsel has a right to preliminary cross-examination to determine the adequacy of the expert’s qualifications. (People v. Sawhill (1921), 299 Ill. 393; Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 211-12.) The prosecutor here obviously had checked Steindler’s qualifications based on his curriculum vitae submitted prior to trial. He found the witness’ qualifications unacceptable, and his preliminary questions to Steindler on cross-examination properly allowed Steindler an opportunity to explain what the State must have felt were discrepancies or misrepresentations. Cf. Smith v. Ford (1976), 43 Ill. App. 3d 407 (impeachment must be preceded by calling the attention of the witness to be impeached to the alleged omissions and giving such witness the opportunity to explain).

Further, it has been held to be error for the prosecutor to ask a defense witness a question designed to lay a foundation for an impeachment unless he is prepared to follow up a denial of the question with proof of the inference contained in the question. (People v. Burbank (1972), 53 Ill. 2d 261, 269-70; People v. Wallenberg (1962), 24 Ill. 2d 350; People v. Woodburn (1979), 75 Ill. App. 3d 532, 536; see generally People v. Nuccio (1969), 43 Ill. 2d 375.) The sole purpose of the witnesses secured by the prosecutor here was to provide proof of the inferences raised during his preliminary cross-examination of Steindler in the event Steindler denied those inferences.

In our opinion, these impeachment witnesses were not required to be disclosed to opposing counsel under the reciprocal discovery provisions of Supreme Court Rules 412(a) and 413(d). As pointed out by the State, every party has an obligation to verify the credentials of its expert witnesses. (People v. Cornille (1983), 95 Ill. 2d 497, 514.) The record here quite clearly shows defense counsel did not verify Steindler’s credentials but, rather, accepted that he was an expert because his services were purchased through an agency which caters to attorneys, the Technical Advisory Service for Attorneys.

However, defense counsel was at least in as good, if not a better, position than the prosecutor to verify Steindler’s credentials. The due process clause speaks to the balance of forces between the accused and his accuser. (Wardius v. Oregon (1973), 412 U.S. 470, 474, 37 L. Ed. 2d 82, 87, 93 S. Ct. 2208, 2212.) The reciprocal discovery rights discussed in Wardius and implemented in Supreme Court Rules 412(a) and 413(d) insure that fundamental fairness will be accorded to those accused by the more powerful and resourceful accuser, the State. However, in our opinion, the instant case was not an example of the “poker game .secrecy” eschewed in Wardius. (412 U.S. 470, 475, 37 L. Ed. 2d 82, 88, 93 S. Ct. 2208, 2211-12.) Rather, the defendant here bet on his cards, the State called him, and won.

For this reason, we conclude that no discovery violation occurred, and the defendant was not denied due process.

II. Disqualification Of The Witness

The defendant argues the State impeached Steindler’s general character, not his credentials. The defendant asserts he properly qualified Steindler with respect to his skills, knowledge and experience in ballistics. Consequently, he contends it was an abuse of the court’s discretion to disqualify an expert witness on the basis of such a general attack on credibility. The defendant also argues the court’s disqualification of Steindler was premature without the court having first actually heard the testimony of the State’s impeachment witnesses.

The State responds that Steindler was successfully impeached as to whether he had the skill,' training and experience necessary to enable him to form an opinion which was “worthy of belief by a jury.” The State also asserts this issue is moot and/or irrelevant since defense counsel refused an opportunity to rehabilitate Steindler, and declared he could no longer vouch for the credibility of his witness.

The defendant in reply characterizes the State’s “worthy of belief by a jury” theory of admissibility as an illusion. Defendant argues that People v. Cornille (1983), 95 Ill. 2d 497, supports his view that an expert’s testimony concerning his professional qualifications only relates to the issue of credibility, and that, as he argued during trial, Steindler’s testimony should have ben heard with a proper admonition as to weight, and there was no issue of the admissibility of Steindler’s testimony.

We find the defendant's argument without merit. Purportedly objective opinion testimony by an expert witness may have considerable influence on the jury, and the rules for qualifying expert witnesses are designed to ensure that only genuine experts will offer it. (People v. Cornille (1983), 95 Ill. 2d 497, 514.) The burden of establishing the qualifications of an expert witness rests on the proponent of his testimony. (People v. Park (1978), 72 Ill. 2d 203, 209.) Whether that burden has been met is a matter within the discretion of the trial court, and its decision is subject to reversal only if there has been an abuse of that discretion. People v. Free (1983), 94 Ill. 2d 378, 410.

Although the expert witness’ qualifications are one factor properly considered by the jury in weighing his testimony, those same qualifications establish the foundation — or lack of foundation — for the admissibility of the expert’s testimony which must be determined by the court — not the jury — in the first place. Whether the witness is competent to give an expert opinion lies within the broad discretion of the trial court, and its decision may not be overturned on review absent a finding of clear and prejudicial error. (People v. Lang (1982), 106 Ill. App. 3d 808, 813; People v. Einstein (1982), 106 Ill. App. 3d 526, 534.) Further, the degree and manner of knowledge and experience required of an expert witness is directly related to the complexity of the subject matter and the corresponding likelihood of error by one insufficiently familiar with the subject matter. People v. Park (1978), 72 Ill. 2d 203.

Although specialized formal training is not necessary, and experience alone may qualify one as an expert (People v. Wade (1977), 51 Ill. App. 3d 721), the ability to draw fine distinctions between ballistics markings has been characterized as one science which requires more than limited experience; to-wit, it requires thorough and systematic study. People v. Park (1978), 72 Ill. 2d 203, 210-11; People v. Fiorita (1930), 339 Ill. 78, 89.

Based on our review of the record, no formal training in ballistics is evident. Referring to Steindler’s resume, the prosecutor during . cross-examination asked at which institutions Steindler took the various listed post-graduate courses. The subjects of the various postgraduate courses were not noted in the record, therefore, it is not known whether they related to ballistics. Steindler apparently had not included the names of the schools or the dates of study of the postgraduate courses. A book he claims to have authored, “The Standard Directory of Proof Marks,” was shown on its face to read “*** by Gerhardt Wernberger, translated by R. W. Steindler.” Steindler acknowledged the Association of Firearms and Tool Mark Examiners is the only such association in the country, and admitted that he had been “kicked out” of that association. After stating on cross-examination that all the articles he had written were concerning firearms, Steindler admitted that the article “The Mountains Get Steeper and Steeper” was “designed to be a ‘tune-up’-pre-tune-up for a hunting trip” in the mountains where the air seems “very rare,” and “every breath is actually very difficult to take.”

The record does show defense counsel himself appeared to acquiesce in the court’s decision to disqualify Steindler, since he indicated at trial he thought the court had correctly done so and that he himself would not “use this man as a witness because [he (defense counsel)] was outraged by his conduct.” Nevertheless, the issue was raised by the defendant in his post-trial motion. However, we believe the court’s decision not to allow Steindler to testify should be affirmed because no abuse of discretion is evident.

In its discretion, the court could readily have deduced that a purportedly expert witness who has misrepresented the extent of his expertise with regard to easily verifiable facts may have done more than simply misrepresent the extent of his experience, which would be quite difficult to actually verify. Additionally, we find without merit defendant’s argument that the court’s decision was premature because it did not actually hear the testimony of the available impeachment witnesses. Defendant’s posture at trial even before the State had an opportunity to present the witnesses was that the State had successfully impeached Steindler’s credentials, and that defense counsel could no longer vouch for Steindler. In response to the prosecutor’s inquiry whether the defendant would be requesting the presentation of the witnesses in court, defense counsel stated “Mr. Steindler will not go back on the witness stand,” and that all he needed was a list of the witnesses’ names, addresses, and phone numbers.

We conclude no reversal on the basis of this issue is warranted.

III. Limitation Of Cross-examination

Defendant argues the court improperly limited his cross-examination of State witnesses Zorzy and Millimaki, two North Chicago police officers, regarding the shooting of the defendant on September 1 in which he lost his left eye. The defendant asserts the limitation prevented him from minimizing or negating the erroneous impression or misconception implicit in the testimony of another of the State’s witnesses, Shirley Green. Ms. Green had testified she was parked in front of the car in which the victim, Richard Wells, was shot. She testified to a conversation with the defendant before the shooting in which she told him she was sorry about his eye, and that he should take it easy. The defendant responded: “No, he messed up my face.” Ms. Green did not ask the defendant to whom he was referring when he .said “he.” The defendant contends the jury was left with the erroneous impression that the defendant shot Wells in revenge, and that had he not been limited in cross-examining Zorzy and Millimaki, he would have been able to dispel that notion and clarify that the defendant held people other than Wells responsible for the shooting.

The defendant did not specifically raise this issue in his post-trial motion in the cross-examination context which he now argues. However, the State has not argued waiver and the points raised in his post-trial motion might inferentially be construed as raising this issue.

“ ‘As a general rule the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court. Such cross-examination should be kept within fair and reasonable limits, and it is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.’ [Citations.]” (People v. Peter (1973), 55 Ill. 2d 443, 451-52, cert, denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627.)

A trial court properly sustains an objection to cross-examination which is beyond the scope of direct examination and in which the defendant attempts to put this theory of the case before the jury. (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 569.) Further, objections to questions posed in improper form are properly sustained. (People v. Rossini (1962), 25 Ill. 2d 617, 621.) It is competent to develop all of the circumstances within the knowledge of a witness which qualify his direct testimony, even if, strictly speaking, the subject introduced is new and one which should be part of the cross-examiner’s own case. People v. Davis (1974), 19 Ill. App. 3d 709, 715-16.

Both officers testified before Shirley Green related the conversation with the defendant. Defendant’s question on cross-examination to Zorzy was entirely beyond the scope of direct, and the questions propounded to Millimaki related to matters beyond that officer’s own knowledge. Additionally, defendant never questioned Shirley Green if she knew who the “he” was to whom the defendant was referring. Further, defendant has not shown any manifest prejudice to him as the result of these rulings. Rather than present a witness named VanDien who would have been able to testify with regard to the shooting of the defendant, the defendant acquiesced in the State’s offer to stipulate to the fact the defendant was shot on September 1, that an arrest warrant was issued, an individual was charged, and that there was a finding of no probable cause. That stipulation was read to the jury.

Although proof of motive is material and important in a case where the evidence of guilt is entirely circumstantial (People v. Holtz (1920), 294 Ill. 143), Green’s testimony did not establish the defendant was talking about the victim when he said, “He messed up my face.” Further, as pointed out by the State, the court’s rulings only restricted the defendant from specifically naming either Eugene or Roosevelt Hall as the persons who attacked him on September 1. Such evidence, however, would not have negated the fact that the victim might also have been involved in the September 1 shooting of the defendant.

We conclude the court did not abuse its discretion in so limiting the defendant’s cross-examination.

IV. Reasonable Doubt

The defendant contends he was not proved guilty beyond a reasonable doubt. He asserts that the statement he made to the police concerning the incident was corroborated by the State’s witnesses’ testimony. Further, that conflicting expert evidence concerning the range at which the shot was fired, and the lack of eyewitnesses and motive show that the evidence did not exclude every other reasonable hypothesis of his innocence and, therefore, his guilt was not established. People v. Garrett (1975), 62 Ill. 2d 151; People v. Wilson (1948), 400 Ill. 461.

It has been held that a valid conviction may be based entirely on circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478.) It is necessary, however, that the proof be of a conclusive nature leading, on the whole, to a reasonable and moral certainty that the accused and no one else committed the crime. People v. Weaver (1982), 92 Ill. 2d 545.

The evidence here supports the defendant’s conviction. The defendant was seen prior to the shooting handling two pistols, one of which was a .38-caliber derringer. The fatal wound was inflicted by a .38-caliber weapon. Contrary to the defendant’s statement to the police, two of the State’s witnesses, Harvey Harden and Waymon Callahan, testified that after they heard the shot, the defendant did not fall or drop down to the ground. Rather, Harden testified the defendant, standing at the open door of the driver’s side of the car, crouched down, there was a shot, and the defendant turned around and walked away from the car. Harden saw a “shiny” object in the defendant’s right hand.

Waymon Callahan, viewing the scene from the front of 2214 Kris-tan, his residence (a position which was on the passengers’ side of the car), testified the defendant walked up to the car and was immediately adjacent to the driver’s side of the car when the shot was heard. Callahan testified the sound of the shot came from the vicinity of the car, and that he saw the defendant run away from the car and into the yard of 2214 Kristan. Callahan’s testimony was corroborated by another witness, Herbert Williams, Jr., who had approximately the same vantage point as Callahan. Williams testified that after he heard the shot, he saw the defendant look around, and then head for the front yard of 2214 Kristan.

Callahan testified that later in the afternoon of the day of the shooting, after he and the defendant gave their statements to the police, Callahan and the defendant dug up the two guns that he had seen the defendant with earlier that day. The guns were dug up from a gravel area located in the back of the house at 2214 Kristan close to the porch. The defendant told Callahan to wipe the guns off “really good.” Callahan took the guns inside his house and hid them for an hour and a half, at which time the defendant and his nephew, Ralph Peterson, picked up the guns.

Barbara Lynch, who lived next door to the house at 2214 Kristan, testified that she heard a “firecracker noise,” and saw the defendant in the back of 2214 Kristan. She testified that when she first saw him, he was getting up from the “rock patch.”

The State’s expert witnesses testified that the fatal wound was the result of a contact shot, and even the defendant’s expert witness agreed that normally unburnt particles of gun powder would not be found in the wound track if the shot were a distant one. There was evidence that the stellate-shaped wound, although generally an indication of a contact wound, could have been caused by a tumbling bullet that had passed through an intermediate target.

The jury was the trier of fact here. As such, it was its prerogative to weigh the testimony in light of its discrepancies and conflicts, to accept or reject as much or as little of the witnesses’ testimony as it pleased, and to draw reasonable inferences from that testimony. (People v. Lutz (1982), 103 Ill. App. 3d 976, 980-81.) The evidence in this case was not so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. Accordingly, the verdict is supported by the evidence, and the trial court’s judgment may not be disturbed. People v. Ellis (1978), 74 Ill. 2d 489, 496.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN KRUSH, Defendant-Appellant.
    Second District
    No. 83—389
    Opinion filed December 30, 1983.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara Preiner and Scott M. Day, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, John Krush, was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), and sentenced to four years’ imprisonment. The sole issue presented by his appeal is whether error requiring reversal occurred when the trial court gave Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.17 (2d ed. 1981), a cautionary instruction relating to the testimony of a witness who is an accomplice to the offense. We affirm.

Evidence at trial disclosed that on the night of April 3, 1982, a patroling police officer of the city of Warrenville noticed a pickup truck parked between two construction site trailers in a street cul-de-sac of a housing development. When he approached to investigate, the officer saw defendant closing the tailgate of the truck. The officer asked defendant what he was doing, and defendant responded that he and his companion had stopped to relieve themselves. The officer noticed two boxes in the back of the truck and asked defendant where he had gotten them. Defendant responded, “We picked them up off the ground.” The officer then noticed another man, later identified as William Dunkin, exit one of the construction trailers. The officer testified he did not see defendant in the trailer.

Another officer arrived and, on looking into the trailer using a light, saw other boxes of the same size, shape and with the same markings as those in the pickup truck. Defendant and Dunkin were arrested and searched disclosing that each carried a flashlight in his coat.

A representative of the owner of the construction trailers testified neither defendant nor Dunkin had authority to enter them and that the trailer which had been entered held boxes containing marble vanity tops.

William Dunkin was called as a witness by defendant and testified he had entered a guilty plea to this burglary and was serving a sentence of imprisonment. Dunkin also testified that on the night in question he and defendant had been out drinking and, after driving to Ba-tavia in defendant’s truck, they traveled down Route 59 to find another place to drink. En route defendant said he wished to relieve himself and drove off the highway into a construction site, parking the truck at the end of a road. Defendant then went around to the side of a trailer to relieve himself and, while he was gone, Dunkin got out with a flashlight to look around. Upon discovering the trailer was unlocked Dunkin stated he entered and pushed two boxes out of it; defendant was then still on the other side of the trailer. Dunkin testified he came out of the trailer shortly thereafter when he saw a light; the police car was then present and he saw defendant closing the tailgate of the truck.

Dunkin also testified he had not discussed the burglary with defendant and it was his own idea. He acknowledged that defendant had placed the boxes removed from the trailer into his truck.

At the request of the State and over defendant’s objection, the trial court gave the “accomplice” instruction of which defendant complains, as follows:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” IPI Criminal No. 3.17 (2d ed. 1981).

Defendant notes that William Dunkin was the only witness called on his behalf and that the State, in argument, pointed out to the jury his testimony could, under the law, be viewed with suspicion as he was involved in the crime with defendant. Defendant argues the “accomplice” instruction should never be given when it may apply to a witness called by a defendant and, in this case, to allow the jury to disregard the testimony of the only defense witness was error requiring that he be given a new trial.

It is apparent William Dunkin was an accomplice to the burglary offense for which defendant was tried (People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31) and, if he had been called as a witness by the State, that the disputed instruction would have been properly given. However, the question whether an “accomplice” instruction may ever be given when directed to the testimony of a witness called by a defendant, as in this case, has not been clearly settled in Illinois, and the appellate court has taken conflicting positions on the issue.

Our supreme court addressed the question in People v. Touhy (1935), 361 Ill. 332, 197 N.E. 849. In that case three accomplice witnesses testified, one of whom was called by the defendant. The jury was instructed “[t]he testimony of an accomplice is competent evidence but such testimony is liable to grave suspicion and should be acted upon with great caution.” (361 El. 332, 352.) Defendant there contended it was error to give the instruction as it related, in part, to one of defendant’s witnesses. In finding there was no error, the court noted: “[n]o reason is advanced, and none is apparent, why one who is in fact an accomplice should not have his testimony scrutinized carefully before it is relied on, no matter on which side of the case he testified.” 361 Ill. 332, 353, 197 N.E. 849, 859.

In the first edition of Illinois Pattern Jury Instructions, Criminal, published in 1968, an accomplice instruction was offered which was similar to that given in this case and the Committee Notes disclose it was divided whether any accomplice instruction ought to be given at all. In 1981, the second edition of IPI criminal instructions deleted the word “accomplice” so that the form refers generally to a witness who says he was involved in a crime with defendant. In this edition, the Committee Note states, without citation of authority, that the instruction applies only to a witness who testified for the State. IPI Criminal No. 3.17, Committee Note (2d ed. 1981).

The appellate court has considered IPI Criminal No. 3.17 in numerous cases since 1968, with varying conclusions. In People v. Legear (1975), 29 Ill. App. 3d 884, 891-92, 331 N.E.2d 659, this court considered the instruction where it related to testimony of an accomplice who had been called by the defendant, stating,

“Whether an accomplice testifies for the defendant or for the State his credibility may be suspect, and the trial judge should have judicial discretion to decide whether to advise the jury to accept the accomplice’s testimony with caution. [Citation.] Here, the total circumstances (including the fact that the testimony of the witness while it attempted to exonerate the defendant in part did nevertheless provide corroborative details for the State’s case) appear to us to support the exercise of the court’s discretion.” (29 Ill. App. 3d 884, 892, 331 N.E.2d 659, 665.)

The court also found, alternatively, that giving the instruction in that case was harmless error. This court again considered the instruction in People v. Hanson (1980), 83 Ill. App. 3d 1108, 404 N.E.2d 801, there holding it was error to give it where the accomplice was called to testify for defendant and his testimony totally exonerated defendant. (See also People v. Riggs (1977), 48 Ill. App. 3d 702, 363 N.E.2d 137; People v. O’Neal (1976), 44 Ill. App. 3d 133, 358 N.E .2d 47; Peo ple v. Howard (1970), 130 Ill. App. 2d 496, 263 N.E.2d 633.) In People v. Hanson the court also noted, in dieta, that the accomplice instruction was never intended as a vehicle for the prosecution.

We would agree with the conclusions of these cases insofar as they hold, under their respective facts, that total exoneration of a defendant by an accomplice witness called by defendant would preclude giving of the instruction. Whtere such testimony completely fails to implicate defendant, use of the cautionary instruction may tend to unduly derogate defendant’s ability to use favorable testimony by an accomplice. People v. Legear (1975), 29 Ill. App. 3d 884, 892, 331 N.E.2d 659.

The view we have discussed was also followed by the court in People v. Brown (1977), 55 Ill. App. 3d 724, 370 N.E.2d 814, in holding that the instruction may not properly be given to impeach an accomplice witness who testified for the State, but exonerated defendant. In dicta, the majority also stated the instruction was not intended to be used by the prosecution to discredit defense witnesses and was intended only for use by a defendant to caution the jury when a State’s witness’ testimony may be flavored by the expectation of clemency. In a well-reasoned special concurrence, however, Justice Jones took exception to the dicta of the majority opinion which condemned use of the accomplice instruction except when directed to a State’s witness. He noted that the testimony of an accomplice may be equally suspect for a variety of reasons whether he was called as a witness by the State or defendant; that an accomplice may well be motivated to seek favor from the State by his testimony, but equally may seek to exonerate the defendant with whom he usually had a close relationship. Justice Jones, in reliance upon People v. Touhy, People v. Legear and United States v. Nolte (5th Cir. 1971), 440 F.2d 1124, 1126, considered the proper rule for giving the accomplice instruction should depend upon the circumstances of each case and, whether the accomplice testifies for the State or defendant, the trial court should have discretion to advise the jury to accept the testimony with caution. See contra, People v. Perryman (1980), 80 Ill. App. 3d 204, 399 N.E.2d 727.

We agree with this reasoning and conclude the trial court did not abuse its discretion in giving the instruction to the jury in the present case. The credibility of accomplice testimony cannot realistically be determined solely on the basis of which side called him as a witness; as Justice Jones noted, the motivation of an accomplice as a witness to testify one way or another is as diverse as the personalities who populate the prisons.

In People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31, the court noted an accomplice was one who could himself have been charged with the offense and, if so, a defendant would be entitled to the cautionary instruction as to the reliability of the witness’ testimony. In this case the witness had pled guilty to the offense for which defendant was on trial and was clearly an accomplice. Dunkin’s testimony did seek to exonerate defendant, but failed to do so, and substantially corroborated the State’s evidence placing defendant at the scene of the burglary loading the stolen property in defendant’s truck.

Accordingly, the judgment of the circuit court trill be affirmed.

Affirmed.

REINHARD and YAN DEUSEN, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND COLEMAN, Defendant-Appellant.
    Second District
    No. 83—399
    Opinion filed December 29, 1983.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Raymond S. Coleman, Jr., was placed on 24 months’ probation by the circuit court of Lake County on April 9, 1982, after he pleaded guilty to the burglary. Defendant’s probation was revoked on April 20, 1983, when defendant admitted that he had burglarized the Sub Venture Restaurant on December 25, 1982. Defendant was sentenced to four years’ imprisonment.

Before a defendant may be sentenced for any felony, a written presentence investigation report must be presented to and considered by the court. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—1.) This is a mandatory requirement which may not be waived except in the limited situation where the parties have agreed to a specified disposition. People v. Youngbey (1980), 82 Ill. 2d 556; see Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—1.

Here, no presentence report was prepared when defendant was first placed on probation. As the probation term and defendant’s guilty plea to the original offense were negotiated, and as the presen-tence investigation and report were waived, it appears that the. lack of a presentence report at defendant’s original sentencing hearing was pursuant to the statutory exception. See Ill. Rev. Stat. 1981, ch. 38, par. 1005-3-1.

When defendant entered his admission to the burglary which constituted the probation violation, defense counsel, apparently forgetting that no presentence report had been prepared previously, requested that the court order an updated presentence investigation and report. The State joined in this request, and an updated report was ordered by the trial court. This “updated” report was considered by the trial court in imposing sentence upon defendant after revocation of probation. Defendant now contends that this report was inadequate as it lacks some of the information required by statute to be set forth in a presentence investigation report. Ill. Rev. Stat. 1981, ch. 38, par. 1005-3-2.

Initially, it is not clear whether a presentence report is required before sentencing upon revocation of probation. The authorities are in conflict on this issue. Some cases hold that the report requirement is not applicable in probation revocation proceedings. (People v. Higgins (1980), 92 Ill. App. 3d 27, 416 N.E.2d 9; People v. Martin (1979), 76 Ill. App. 3d 765, 395 N.E.2d 24; People v. Handlon (1976), 40 Ill. App. 3d 959, 353 N.E.2d 278.) These cases rely on the fact that the statute which sets forth the requirement does not expressly include probation revocation proceedings and that the statute governing the procedure in such proceedings does not require a preseritence report. Defendant attempts to distinguish this line of reasoning on the basis of a change in the statute since the Handlon decision. Previously, the statute required the court to consider a presentence report prior to sentencing “where the defendant is convicted of a felony.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 3—1.) The current statute provides that the court is to consider the presentence report before sentencing a defendant “for a felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—1.) According to defendant, the prior statute could be viewed as referring only to proceedings which resulted in the defendant’s conviction, while the current statute would apply in any proceeding, including probation revocation, where the defendant is being sentenced for a felony. While this argument is persuasive, it is notable that the Handlon rationale has been adopted in a case decided under the current statute. People v. Higgins (1980), 92 Ill. App. 3d 27, 416 N.E.2d 9.

However, other cases have held that a presentence report is required prior to imposing sentence after revocation of probation. (People v. Comerford (1975), 35 Ill. App. 3d 287, 341 N.E.2d 131; see People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244.) The courts in these cases also have relied on the express statutory language, but have concluded that this language is mandatory and imposes an affirmative duty on the court to obtain and consider a pre-sentence report prior to any sentencing of the defendant. (People v. Comerford (1975), 35 Ill. App. 3d 287, 341 N.E.2d 131; see People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244.) As defendant notes, this line of authority is more consistent with the current statutory scheme.

In deciding whether a presentence report should be required after probation revocation in a given case, an important consideration is whether a report was prepared at the original sentencing hearing. If the court had a presentence report at the time probation was imposed, it is not necessary to prepare a second report before sentencing after probation is revoked; in this situation, the statutory purpose is adequately served by the original report, if it is relatively current and if the defendant is given the opportunity to present any additional information. (People v. McCrory (1976), 43 Ill. App. 3d 892, 357 N.E.2d 709; see People v. Curtis (1978), 61 Ill. App. 3d 34, 377 N.E.2d 844; compare People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244 (report required where probation was imposed several years earlier); see also People v. Morton (1981), 102 Ill. App. 3d 280, 430 N.E.2d 383 (second report not required for resentencing after remand).) Thus, where the defendant has waived a presentence report when probation was initially imposed, as was generally permissible under prior law (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 3—1), a presentence report should be required before the defendant is sentenced after a probation revocation. (People v. Comerford (1975), 35 Ill. App. 3d 287, 341 N.E.2d 131; see People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244.) Some cases have held to the contrary. (People v. Martin (1979), 76 Ill. App. 3d 765, 395 N.E.2d 24; People v. Handlon (1976), 40 Ill. App. 3d 959, 353 N.E.2d 278.) However, the Comerford rationale appears more persuasive, especially where, as here, no presentence report was prepared for the original sentencing. This district, while not addressing the issue directly, has noted the desirability of a presentence report in such situations. (People v. Curtis (1978), 61 Ill. App. 3d 34, 377 N.E.2d 844.) The presentence report is designed to assist the judge in determining an appropriate sentence. (People v. Youngbey (1980), 82 Ill. 2d 556.) Where the judge has no such guidance from prior proceedings, such as the original sentencing hearing, it is appropriate to require that the judge be supplied with the information the report provides before imposing sentence after probation revocation. The potential for • prejudice is apparent where, as in this case, the sentence imposed is greater than the minimum term permitted by statute. (See Ill. Rev. Stat. 1981, ch. 38, pars. 19— 1, 1005 — 8—1; compare People v. Martin (1979), 76 Ill. App. 3d 765, 395 N.E.2d 24.) Given the purpose of the report and the clear policy against waiver embodied in the current statute (see Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—1; People v. Youngbey (1980), 82 Ill. 2d 556), the State’s theory of a continuing waiver here is unpersuasive.

At issue in this case is whether the “updated” report which was presented was inadequate. (See People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892.) A presentence report sets forth various matters, including (1) the defendant’s history of delinquency or criminality, physical and mental history and condition, family situation, economic status, education, occupation, and personal habits; (2) information about special resources within the community which might be available to assist the defendant’s rehabilitation; (3) the effect the offense has had upon the victim; (4) information concerning the defendant’s status since arrest. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—2.) The “updated” report about defendant discussed his performance while on probation, described his family situation and employment briefly, presented information as to defendant’s health, and listed several community resources which might assist defendant in rehabilitation. However, the updated report contained no indication of any prior record which defendant may have had. Additionally, the description of the impact on the victim concerned the offense which led to the revocation of defendant’s probation rather than the original offense. Therefore, the updated report did not meet the statutory requirement. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—2; see People v. Meeks (1980), 81 Ill. 2d 524; People v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510.

The information omitted from the updated report is important. One of the primary purposes of a presentence report is to apprise the judge of the defendant’s prior record (see People v. Youngbey (1980), 82 Ill. 2d 556), which is a significant factor to be considered where a more severe sentence is imposed. (See Ill. Rev. Stat. 1981, ch. 38, pars. 1005-5-3.2(a)(3), 1005-5-3.2(b)(l).) Further, where a defendant’s probation is revoked, the court is to sentence the defendant for the original offense and not for the conduct which constituted the violation of probation. (People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408; People v. Koppen (1975), 29 Ill. App. 3d 29, 329 N.E.2d 421.) Although the defendant’s conduct on probation may be considered in assessing his or her rehabilitation potential (People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408), it is erroneous for the court to commingle consideration of the circumstances of the underlying offense with the events leading to the revocation itself. (People v. Maretti (1978), 61 Ill. App. 3d 762, 378 N.E.2d 342.) Thus, a proper victim-impact analysis would have described the impact on the victim of the North Chicago Standard service station burglary, the underlying offense, rather than the Sub Venture Restaurant burglary, the offense which led to revocation of defendant’s probation.

We conclude that the trial court’s failure to consider a presentence report and its consideration only of an “update” of a presentence report was plain error. (87 Ill. 2d R 615.) This was not a case, as in Meeks, where the presentence report was merely insufficient for failing to set out sentencing alternatives and the error was waived by failing to first present it to the trial court. (People v. Meeks (1980), 81 Ill. 2d 524, 533.) We cannot say as did the court in Meeks that the requirement that the trial judge consider the presentence report was complied with where here, there was no presentence report which could be considered.

The judgment of the circuit court of Lake County is reversed and the cause remanded for resentencing upon consideration of a presen-tence report.

Reversed and remanded.

SEIDENFELD, P.J., and NASH, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSEMARY McNEAL et al., Defendants-Appellants.
    Second District
    Nos. 83—280, 83—390 cons.
    Opinion filed December 29, 1983.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In these cases consolidated for opinion, Rosemary McNeal and Willie McNeal were found guilty of retail theft in excess of $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 3)' after a joint bench trial. Rosemary McNeal was sentenced to three years in prison and Willie McNeal to the 28 days in the county jail he had already served and 24 months’ probation.

I

Both defendants raise the issue of the constitutionality of the statute under which each was convicted. They argue that the statute denies equal protection because the same type of offense where the property taken is less than $300 is punishable under the theft statute as a Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 16— 1(e)(1)), while retail theft of property not in excess of $150 in value is a Class 3 felony (Ill. Rev. Stat. 1981, ch. 38, pars. 16A — 3(a), 16A— 10(3)).

Preliminarily, we reject the State’s contention, based on People v. Amerman (1971), 50 Ill. 2d 196, 197, that the constitutional issue has been waived by failure to urge it in the trial court. Where, as here, a substantial question of constitutionality is raised, which if sustained, would make void the statute under which defendants were charged and convicted, we decline to apply the waiver rule. People v. Wagner (1982), 89 Ill. 2d 308, 311.

Defendants’ basic premise that the theft and retail theft statutes charge essentially the same crime but punish it differently is based on the claim that both include the elements: (1) knowingly, (2) exerted control over the property of another, (3) unlawfully and (4) with the intent of permanently depriving the other of the use and benefit of the property. However, theft and retail theft have been held to be different crimes. In People v. Wynn (1980), 84 Ill. App. 3d 591, 593, it was held that the theft focuses on ownership of the property-taken as an element of the offense; while ownership is not an element found in the retail theft statute, since any possession of or carrying away of any merchandise displayed, held, stored or offered for sale, constitutes the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 3(a).) Defendant argues that proof of ownership under the theft statute is satisfied by proof that one other than the accused either owns or has a possessory interest in the property claimed to be stolen (see, e.g., People v. Cowan (1977), 49 Ill. App. 3d 367, 368; Ill. Rev. Stat. 1981, ch. 38, par. 15 — 2), and the same element can be inferred from the display of merchandise in a mercantile establishment. While it is true that the primary purpose of the ownership requirement in the theft statute is to enable the accused to prepare for trial and to plead a disposition of the case in bar of a subsequent prosecution, the fact remains that the legislature has chosen to remove this requirement from the provisions of the retail theft statute here in question.

Defendants also argue that the retail theft statute denies due process because under the legislative scheme an individual who steals $200 worth of property under the retail theft statute is guilty of a Class 3 felony while one who steals $200 but less than $300 under the theft statute is guilty of only a Class 3 misdemeanor. Parenthetically, they note that the legislature recognized the effect of inflation on values when, in 1982, it increased the $150 “ceiling” to $300 to constitute the theft a felony. Yet, they argue, the inflationary factor has been ignored in the retail theft statute which keeps the $150 distinction between a Class A misdemeanor and the Class 3 felony, although inflation should apply equally to the statutes. We do not agree that identical value differentials between the different types of theft must be maintained to accomplish a legitimate legislative purpose directed at retail thefts.

Defendants’ due process argument is essentially the same as its argument that the statute denies constitutional equal protection. Prior to the change noted in the theft statute the retail theft statute was upheld against a . constitutional equal protection attack in People v. Fix (1976), 44 Ill. App. 3d 607. In Fix, the court held that the purpose which the retail theft statute seeks to accomplish is particularly related to retail establishments where the customer and the property are intermingled or in close proximity, with a special potential for misconduct. (44 Ill. App. 3d 607, 610.) The valuation provision in the retail theft statute was upheld as against the claim that it was special legislation, in People v. Mendoza (1978), 62 Ill. App. 3d 774, 775, with Fix cited with approval. Cf People v. Jennings (1976), 42 Ill. App. 3d 168, 171 (not arbitrary to distinguish between theft from a vehicle as a Class 2 offense and other thefts).

Historically, “shoplifting” has been singled out in many States as an offense which has not effectively been deterred within the confínes of the traditional theft statutes, and special statutes directed at retail theft have been upheld. (See Annot., 90 A.L.R.2d 811 (1963). See also Black v. Gladden (1964), 237 Or. 631, 632-33, 393 P.2d 190, 191.) In Black the court held that there was a reasonable basis for regarding theft committed in a mercantile establishment as a separate social evil distinct from theft committed under other circumstances, that this was clearly a matter for legislative discretion, and did not deny the defendant equal protection. See also State v. Fitzmaurice (1974), 126 N.J. Super. 361, 364, 314 A.2d 606, 608.

We therefore reject defendants’ constitutional arguments.

II

Willie McNeal raises an additional issue, that he was not proved guilty beyond a reasonable doubt.

The evidence established that around 2 p.m. on October 27, 1982, about 36 cartons of cigarettes were taken from the Montgomery Ward Alternative Profit Center in Lombard. A clerk testified that a black man and woman arrived at the combination gas station and store in a silver-gray Vega. The clerk identified the codefendant Rosemary McNeal as having been the woman but was unable to positively identify the defendant as having been the man she saw. The clerk first noticed the unidentified man pumping gas into the Vega and noticed that Rosemary was seated in the car. The woman entered the store, put a gallon of windshield washer fluid on the counter and walked away from the counter; the man entered the store five or 10 minutes after the woman, asked if he had to pay for the gas before or after pumping it into the car and after receiving an answer walked away but returned twice to ask the clerk other questions. She later saw the man holding a carton of Winston cigarettes and asked if he knew that he had the box rather than the soft packs. He replied that he did not. He made no purchase. While she was talking to the man the clerk noticed that the woman from the Vega was crouching by a cabinet. Approximately five minutes later the clerk looked over toward the cigarette display and noticed the missing cartons. She looked out the window and saw the woman facing the rear of the Vega and getting in, with the man who asked about the cigarettes on the driver’s side.

In court, the clerk identified Rosemary McNeal as being the woman she had observed, but when asked about the man stated, “I am truly not sure. I have to see the teeth. That sound strange, but I do remember the teeth being discolored and the slight space between his teeth.” It was stipulated that Willie McNeal and one or two other young men would be asked to stand up in court and smile for the witness. The defendant and one other man eventually did so. The clerk was asked to leave the witness stand and go to each of the males, but this defendant would not smile so that his teeth would show.

A police officer testified that approximately 20 minutes after receiving a call he pulled over a silver-gray Vega. He identified Willie McNeal as the driver and Rosemary McNeal as the passenger. He observed numerous cartons of cigarettes in a bag between the woman’s legs and another bag in the back directly behind her seat. There was testimony that Rosemary McNeal admitted taking the cigarettes from the store and described her specially designed girdle.

Willie McNeal argues that the circumstances could give rise only to the presumption that Rosemary was in possession of the stolen cigarettes with no inference of joint possession. He argues- that the circumstance that his arrival and departure from the gas station and store coincided with the commission of the theft was insufficient to exclude the hypothesis of innocence. See People v. Trapps (1974), 22 Ill. App. 3d 1029, 1032-33.

Ordinarily, possession is a question of fact. (People v. Barber (1974), 20 Ill. App. 3d 977, 981.) There was strong circumstantial evidence that Willie McNeal jointly possessed the cigarettes which were in the car he was driving. Assuming possession, it was not necessary for the State to provide direct proof that defendant knew the property was stolen. (See People v. Johnson (1978), 64 Ill. App. 3d 1018, 1021.) A defendant’s recent joint possession of stolen property without a reasonable explanation gives rise to an inference of guilt in the absence of circumstances which would otherwise create a reasonable doubt. (People v. Sherman (1982), 110 Ill. App. 3d 854, 859.) While the store clerk did not positively identify the defendant at trial, the record contains sufficient circumstantial evidence that defendant was the same man and that he was driving the same car with the same passenger shortly after the offense.

Moreover, the circumstances support guilt by accountability. The inference of possession of recently stolen property may be used in support of accountability. (People v. Riley (1981), 99 Ill. App. 3d 244, 249.) Together with the other facts which are noted there is sufficient evidence to support the defendant’s guilt by accountability by his engagement in a common scheme to commit the retail theft. See People v. Grice (1980), 87 Ill. App. 3d 718, 726, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.

The judgments of conviction and sentence of Rosemary McNeal (No. 83 — 280), and of Willie McNeal (No. 83 — 390) entered in the circuit court of Du Page County are affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


author: JUSTICE GREEN

text:
    BILLIE R. RUNYON et al., Co-Administrators of the Estate of Philip David Runyon, Deceased, Plaintiffs-Appellants, v. JOEY D. RICH et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0212
    Opinion filed December 30, 1983.
    Rehearing denied January 27, 1984.

      Fellheimer, Fellheimer, O’Dell & Travers, Ltd., of Pontiac (Robert M. Travers, of counsel), for appellants.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (John L. Morel, of counsel), for appellee Joey D. Rich.
    Costigan & Wollrab, of Bloomington, for appellee Douglas R. Shoemaker.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs, Billie R. and Betty J. Runyon, co-administrators of the estate of their son, Philip David Runyon, deceased, appeal a judgment on a jury verdict in favor of defendants, Joey D. Rich and Douglas R. Shoemaker, entered May 24, 1983, in the circuit court of Livingston ■ County. The action was brought to recover for the death of their son which resulted from a collision between a motorcycle he was driving and a truck driven by defendant Rich. Defendant Shoemaker was the driver of a vehicle being passed by the truck at the time of the collision. The Shoemaker vehicle did not make contact with the truck or the motorcycle.

On appeal the plaintiffs maintain the verdict was contrary to the manifest weight of the evidence. They also contend that the trial court erred (1) in allowing testimony concerning decedent’s failure to wear a motorcycle helmet and the probability of injury or death had he worn one, (2) in refusing to allow the coroner to describe possible causes of death other than those listed on the death certificate, (3) in allowing two copies of the death certificate to be sent to the jury room, (4) in refusing to (a) direct a verdict in favor of plaintiff on the question of liability, or (b) direct a judgment n.o.v., after trial, (5) in failing to properly instruct the jury, and (6) in failing to submit a proper verdict form to the jury. Plaintiffs also assert that they were unduly prejudiced by comments made by counsel for defendant Shoemaker.

Other than as to the question of when the decedent’s motorcycle first became visible to defendants, the facts of the occurrence were not seriously disputed. Shoemaker and his female companion, Kelly Lucas, were driving in his car in a westerly direction on the 4-H blacktop near Pontiac, Illinois, when defendant Rich approached Shoemaker from behind and started to pass him on the left. The collision occurred before the truck had driven even with Shoemaker’s vehicle. The damage to the truck was to the left front. Eighty-eight feet of skid marks in the westbound passing lane led to a gouge mark which was the apparent point of impact.

Robert Brace, a friend of the decedent, testified that decedent had been at Brace’s trailer in Vermilion Estates shortly before the collision. Vermilion Estates was on the north of the blacktop a short distance west of the collision. Brace testified that he noticed nothing unusual about the motorcycle except that its headlight was on low beam. Brace stated he thought the light was dim because the motorcycle was idling. Shoemaker testified he was returning Kelly Lucas to her home in that trailer park.

Shoemaker testified that (1) he was driving 55 miler per hour, and (2) Rich had not completely passed his vehicle when Shoemaker first saw the motorcycle which was then between 40 and 45 feet in front of Rich’s truck. Shoemaker said that the only thing he saw on the motorcycle was its light, which was “dimmer” than a regular motorcycle light, and that it appeared “all of a sudden.” Shoemaker also testified that he would have been able to see a vehicle at the stop sign of the road to Vermilion Estates if the lights of the vehicle had been on. Shoemaker’s passenger stated she did not see the motorcycle until it was within a couple of car lengths, and although she stated she observed nothing unusual about the motorcycle light, she testified that the collision occurred from one to three seconds after she first saw it.

Defendant Rich testified that when he started to pass Shoemaker’s vehicle, he looked down the road and saw nothing coming. He stated, that he was within two or three feet of the front bumper of Shoemaker’s car when he first saw decedent’s motorcycle 20 to 25 feet away, and he did not see the light on the motorcycle prior to that moment. He stated it was approximately one to three seconds from the time he first saw the decedent until the collision.

Plaintiffs maintain that the verdict for the defendant Rich cannot stand, because when the driver of a vehicle travels into the lane of traffic driving in the other direction and collides with a vehicle traveling in that other direction, as occurred here, the driver has the burden of proving he was not at fault. Plaintiffs maintain Rich did not do that here.

Plaintiffs rely on Calvetti v. Seipp (1966), 70 Ill. App. 2d 58, 216 N.E.2d 497, aff’d (1967),' 37 Ill. 2d 596, 227 N.E.2d 758. There, the highway was covered with ice and snow, and defendant’s vehicle skidded into the opposite lane of traffic and into plaintiff’s vehicle. The court found that there was no evidence concerning the cause of the accident except that the highway was icy and slick and reversed a verdict in favor of defendant as against the manifest weight of the evidence. The court found the defendant to be negligent as a matter of law. The supreme court found that although it was snowing heavily, visibility was poor, the dividing line was not clear, the road surface was slick, and her speed was between 25 and 30 miles per hour on a slight downgrade, the defendant made no showing that the skid into the opposite lane happened without negligence on her part. Defendant made no effort to show that she was not driving too fast for road and weather conditions, or that some unavoidable event caused her to lose control. The court found that the fact that her car skidded in front of the one in which plaintiff was riding must be deemed to have arisen from some negligent act or omission, in the absence of explanation to the contrary.

Similarly, in Murphy v. Kumler (1951), 344 Ill. App. 287, 100 N.E.2d 660, the appellate court reversed a verdict for defendant, the driver of a car that swerved into the opposite lane of traffic. The court found that it was the defendant’s rather than the plaintiff’s duty to show why defendant’s automobile skidded on a wet or icy pavement. The court stated it was not incumbent upon the plaintiff to show conclusively why the defendant was on the wrong side of the road or the exact cause of the skid. The court stated in a collision such as this one, where one of the cars is on the wrong side of the highway and out of control, it is the duty of the defendant to show that he was in that situation because of some particular reason other than his own negligence.

Here, both defendants and Ms. Lucas, the only surviving eyewitnesses, all testified to the lights on the motorcycle becoming visible suddenly. The jury could have concluded that this actually happened. The decedent might have been riding with the lights off and suddenly turned them on. It was possible that the beam was very light until the decedent suddenly accelerated the motorcycle. Unlike in Murphy, Rich’s vehicle was not out of control and unlike in either Murphy or Clavetti, Rich had the reasonable explanation that he turned into the eastbound lane to pass and continued to do so at a time when no visible light indicated that to do so was unsafe. The verdict for defendant Rich was not contrary to the manifest weight of the evidence. Most of plaintiffs’ other claims of error are rendered moot by the verdict finding no liability.

Prior to trial, the court ordered that defendants be precluded from commenting upon or introducing evidence of the decedent’s failure to wear a safety helmet “until there is a preliminary showing that failure to wear a safety helmet resulted in more severe injuries.” The court later allowed testimony as to the wearing of the helmet as it relates to mitigation of damages. Plaintiffs maintain that any use of the evidence was reversible error. They cite Rogers v. Frush (1970), 257 Md. 233, 262 A.2d 549, where the court concluded that in the absence of statutory requirement, a motorcycle driver was under no duty to wear a helmet and held that no use could be made of such evidence.

Defendants’ presentation of the testimony was merely for the purpose of mitigating damages. They contend that the use of this evidence is analogous to the use of testimony of the failure of one riding in an automobile to wear a seat belt. When a proper showing is made, such evidence should be admissible in mitigation of damages (Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 358 N.E.2d 1171; Eichorn v. Olson (1975), 32 Ill. App. 3d 587, 335 N.E.2d 774; Hale v. Cravens (1970), 129 Ill. App. 2d 466, 263 N.E.2d 593) but not as to liability (Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 443 N.E.2d 1085; Old Second National Bank v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224). We need not to determine whether the analogy can properly be drawn or whether the evidence in this case would permit use of the theory, because there were no damages to mitigate. The rulings of the trial court made clear that the evidence was limited to mitigation, and we do not deem the evidence to have prejudiced the plaintiffs on the question of liability.

Defendants introduced testimony of Dr. Gordon Schultz as to the reduced probability of injury if a motorcycle driver were wearing a helmet. This testimony was likewise limited to the question of damages and was not prejudicial to plaintiffs on the issue of liability. The question of the propriety of the evidence was also rendered moot by the verdict.

Prior to the testimony of the coroner, Keith Von Qualen, the court ruled that he could testify only to the issuance of the death certifí-cate, his investigation of the case and his findings as to the cause of death as contained in the death certificate. He was also allowed to testify in other than laymen’s terms as to what he saw. He testified the type of injury he observed was a “blunt trauma” or a “blunt injury.” He observed a cut on the left forehead and abrasions or skinned areas on the right side of the head. The cut on the left side of the forehead was approximately five inches long and approximately two inches above the eye. He stated there were other abrasions on the chest and left knee, and the majority of the injuries were on the left side of the body. Finally, he observed an injury or unusual malformation of the left arm and wrist and abrasions to the left hand and fingers.

Mr. Von Qualen also testified that the decedent’s chest was soft, indicating there might have been fractures. Upon motion of a defendant, this testimony was stricken as being a medical opinion requiring the testimony of a physician. Other than the foregoing, we do not know what material testimony Mr. Von Qualen might have given had his testimony not been limited. No offer of proof was made. Mr. Von Qualen’s special knowledge of anatomy was not limited to his experience as a coroner. He had a number of years of experience as a funeral director and embalmer, and he possessed a degree in mortuary science. He had also attended seminars on mortuary science. Although Mr. Von Qualen would have a knowledge of anatomy beyond that of most jurors, we find no abuse of discretion by the trial court in striking the foregoing testimony.

We note that although the testimony of the coroner bore, to some extent, upon the nature of the collision, its major thrust would have been to negate defendant’s theory that death would have been prevented had decedent worn a helmet, an issue made moot by the verdict.

No error resulted from allowing two copies of the death certificate to be taken to the jury room. Both certificates were properly admitted into evidence, without objection, and, as such, were permitted to be carried from the bar by the jury (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1107(d)). The information on the documents had little bearing on the question of liability, and their cumulative nature was not prejudicial.

As we have determined that the verdict was not contrary to the manifest weight of the evidence, clearly no error occurred from the trial court’s denial of plaintiffs’ motions for a directed verdict on liability and a judgment n.o.v.

Plaintiffs assert that the trial court erred in giving court’s instruction No. 2, an instruction somewhat in the form of Illinois Pattern Jury Instruction (IPI), Civil, No. A21.03 (2d ed. 1981 Supp.). However, the instruction listed as affirmative defenses the failure of the defendant to have a properly functioning headlight and his alleged failure to wear a helmet. The instruction then, rather than providing that the affirmative defense negates recovery, stated that any negligence of deceased in failing to have a proper headlight should be compared to defendants’ negligence and any verdict for plaintiffs should be reduced by the amount that the deceased’s injuries or loss would have been reduced had he been wearing a helmet. Again, we need not pass upon the propriety of the designation of affirmative defenses here, because both were explained in such terms that they did not bear on the question of liability but on damages. The jury had no reason to consider the question of damages.

Plaintiffs claim error in the giving of defendants’ instruction No. 4, but the only objection they made to the instruction as tendered was sustained and the instruction amended to correct the matter of which complaint was made. Plaintiffs’ instruction No. 29 concerned section 11 — 702 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 702) and had no bearing on the situation where one vehicle is passing another vehicle going in the same direction. Plaintiffs’ instruction No. 11, which was refused by the court, concerned the use of evidence of the decedent’s reputation for being a person of careful habits. Such evidence is not admissible to show due care on his part where, as here, there are eyewitnesses. (Snedden v. Lavenka (1981), 92 Ill. App. 3d 979, 416 N.E.2d 1097.) Under the doctrine of comparative negligence, the issue of care by the deceased does not bear upon liability, which was the issue upon which the case was decided.

Plaintiffs’ claim that the trial court erred in failing to give a verdict form as required by section 2 — 1109 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1109) has not been preserved for review. The plaintiffs did not request a form when asked by the court, and in the absence of such a request, we cannot find the trial court erred. (87 Ill. 2d R. 366(b)(2)(i).) Moreover, as with plaintiffs’ other contention, this one also concerned the issue of damages which was rendered moot by the verdict.

Plaintiffs’ complaint as to argument of counsel for defendant Shoemaker is made for the first time on appeal. It is waived unless plain error resulted. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856, 858.) We find no such error in the arguments.

The judgment of the trial court is affirmed.

Affirmed.

MILLS, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE STOUDER PRESIDING JUSTICE STOUDER

text:
    HOUSER COMMUNICATIONS, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Third District
    No. 82—811
    Opinion filed December 8, 1983.
    Supplemental opinion filed on denial of rehearing January 27, 1984.
    John C. Mulgrew, Jr., and Jeffrey Alan Ryva, both of Davis & Morgan, of Peoria, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Hercules F. Bolos and Kathleen Nolan, Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.

      Charles W. Kohr, of Littler, Kohr & Howard, of Peoria, for appellee Radio Paging of Illinois, Inc.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by plaintiff, Houser Communications, Inc., to the circuit court of Peoria County pursuant to section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 72) from an order of the Illinois Commerce Commission granting defendant, Radio Paging of Illinois, Inc., a certificate of public convenience and necessity to provide one-way paging and two-way radio communication services within Peoria County. The circuit court dismissed the appeal on the grounds that Houser lacked standing.

Prior to dealing with the substantive issues in this case, we must first address ourselves to Radio Paging’s motion requesting this court to take judicial notice of two decisions by the Illinois Commerce Commission, one rendered on August 10, 1983, and the other on September 6, 1983. The circuit court entered its order in the case at hand on August 30, 1982, well before the Commission entered the orders in question. The circuit court had no opportunity to consider these orders. Therefore, we believe it to be inappropriate to take judicial notice of the August 10 and September 6 orders under these circumstances.

On September 8, 1980, Radio Paging filed a petition with the Commission asking that it be granted a certificate of public convenience and necessity to provide one-way radio paging and two-way radio communication services within Peoria County. Houser petitioned for leave to intervene in the proceedings on the basis that it was a certificate holder and a public utility in Peoria County. The Commission granted the intervention petition.

On December 2, 1981, the Commission granted Radio Paging the certificate it sought, holding that Houser had not established itself as the pioneer, first-in-the-field utility. Houser, thereafter, filed its notice of appeal to the circuit court.

On May 27, 1982, Radio Paging petitioned for leave to intervene in the circuit court in order to be joined as an appellee. The petition was granted and the parties thereafter briefed the substantive issues of the case.

On July 19, 1982, Radio Paging filed a motion to dismiss based upon the argument that Houser lacked standing to appeal because it did not process a certificate to provide the services Radio Paging had been granted -a-certificate to provide. A hearing was held on August 12, 1982, and on August 30, 1982, the circuit court granted Radio Paging’s motion to dismiss.

Houser has requested that we review the following issues: (1) whether the Illinois Commerce Commission lacks subject-matter jurisdiction in the area of one-way radio paging and two-way radio communication services and (2) whether the circuit court improperly determined that Houser lacked standing to appeal the order of the Commission.

The question of whether or not the Commission has subject-matter jurisdiction over the area of radio paging communication services was not argued at the circuit court level and, thus, has been presented to this court for the first time. The sole case dealing with the Commission’s subject-matter jurisdiction in this area is Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1983), 95 Ill. 2d 142, 447 N.E.2d 295, which was decided after the circuit court rendered its judgment. However, that case addressed itself to one-way radio paging services only. Two-way radio communication services were never specifically discussed by the court.

The court held that one-way radio paging services were not within the jurisdiction of the Commission in that this type of activity did not fall within the provisions of section 10.3(b) of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. lll2/s, par. 10.3(b)); “the transmission of telegraph or telephone messages between points within this State.” The court based its decision upon the view that the essence of telephonic communication is two-way communication by voice. A one-way paging service did not fall within this definition.

It is evident that one-way radio paging services are not within the jurisdiction of the Commission. This issue was conceded by all parties, and to the extent the certificate of the Commission includes one-way radio paging services it should be vacated. However, we believe that two-way radio communication services do fall within the subject-matter jurisdiction of the Commission, this type of activity being functionally equivalent to telephonic communication.

Having established the subject-matter jurisdiction of the Commission in the instant case, we now turn to the issue of whether Houser lacked standing in its appeal to the circuit court.

The question of whether or not the entity now known as Houser Communications, Inc., held a certificate of public convenience and necessity to provide a radio paging service at the time of the hearing before the Commission and at the time of the appeal to the circuit court remains unresolved. However, Houser was permitted to intervene in the proceedings before the Commission and participated in those proceedings as a party. This was done by the Commission with knowledge that Houser’s standing was at issue. At this juncture, to deny Houser the right to appeal the Commission’s order would be patently unfair. The courts in Illinois Telephone Association v. Illinois Commerce Com. (1977), 67 Ill. 2d 15, 364 N.E.2d 63, and Chicago Area Recycling Group v. Illinois Commerce Com. (1978), 58 Ill. App. 3d 769, 374 N.E.2d 1008, have reached the same conclusion with respect to this issue. Therefore we hold that the circuit court’s dismissal of Houser’s appeal for lack of standing was improper.

. Accordingly, for the reasons discussed in this opinion, the judgment of the circuit court of Peoria County is reversed with the case remanded to the circuit court in order to vacate that part of the Commission’s order granting a certificate for one-way radio paging services and for further proceedings relative to the appeal of the Commission’s order granting Radio Paging a certificate to conduct a two-way radio communication service.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE STOUDER

delivered the opinion of the

court:

Subsequent to our opinion in this case filed December 8, 1983, the Illinois Commerce Commission has in its petition for rehearing directed our attention to a procedural deficiency created by our decision. Relying on Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1983), 95 Ill. 2d 142, and Illinois Commerce Com. v. New York Central R.R. Co. (1947), 398 Ill. 11, the Commission urges that the order should not have been reversed in part and the remainder remanded to the circuit court for further proceedings. Rather, according to the Commission, the order of the Commission should be set aside to permit the Commission to recall and amend the certificate. We believe the position of the Commission is well taken and the relief sought by the rehearing petition is granted.

Our previous opinion is hereby modified to provide that the judgment of the circuit court of Peoria County is reversed and remanded with directions that said court remand the case to the Illinois Commerce Commission for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded with directions.

BARRY and SCOTT, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY ROBINSON, Defendant-Appellant.
    Third District
    No. 3—83—0337
    Opinion filed December 29, 1983.

      James Groat and Louis E. Neuendorf, both of Sandwich, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant Gary Robinson appeals from the denial by the trial court of his motion to vacate his prior plea of guilty and to arrest judgment. The defendant, under a plea agreement with the State, had entered his plea of guilty to attempted insurance fraud (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(a), (b), (c)), and he was sentenced to a term of 10 months’ imprisonment for the offense. On appeal, Robinson contends that there was an insufficient factual basis presented to the trial court to support his plea of guilty, and further that there is no such crime as attempted insurance fraud in Illinois.

As several statutory provisions are pertinent to the issues raised herein, we set them forth at the outset. Section 118 of division I of the Criminal Code of 1874 (hereinafter section 118) (Ill. Rev. Stat. 1981, ch. 73, par. 1101) establishes the offense of insurance fraud

“If any person *** shall falsely obtain, cause to be obtained, or attempt to obtain from such insurance company any sum of money upon any policy of such company, by means of false and fraudulent written representations or affidavits, falsely representing *** that the person insured suffered a financial loss by reason of the loss, theft, damage or destruction of the property insured, every person on conviction thereof, if the sum so obtained, attempted or caused to be obtained shall be equal to or exceed the sum of $25, shall be guilty of a Class 4 felony; and if the sum so obtained, attempted or caused to be obtained shall be less than $25, shall be guilty of a Class B misdemeanor.”

Section 8 — 4(a) of the Criminal Code of 1961 sets forth the attempt provision (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)):

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense ***.”

As already noted, in a plea agreement, the defendant pleaded guilty to the offense of attempted insurance fraud and the agreed-upon sentence was imposed by the trial court, that being 10 months’ incarceration. The facts set forth by the prosecutor in support of the plea agreement and defendant’s guilty plea indicated that one Alan Beck-var and Robinson had agreed that Robinson would take Beckvar’s boat and hide it. Then Beckvar would submit a false insurance claim for the boat’s theft to his insurance company. The presentation to the trial court also indicated that Robinson had taken the boat and concealed it with the intent and under the agreement that Beckvar would file a false insurance claim for the theft. Beckvar did phone his insurance carrier to notify them of the theft of the boat and start the claim process. In exchange for Robinson’s plea of guilty to attempted insurance fraud for his part in the scheme, other charges against him, arising from the incident, were dropped by the State. However, within the requisite 30 days, Robinson, through other counsel, filed a motion to arrest judgment and vacate his earlier plea of guilty. The motion was denied by the trial court and this appeal followed. A prior motion to reduce sentence was denied by the trial court as well, with the court concluding that it was moot due to the fact that Robinson had served his sentence and been released. That motion concerning sentencing is not before us on this appeal.

A central focus of the defense argument are questions concerning the existence of, and elements of, the crime of attempted insurance fraud. The defense argues that an attempt to gain money from an insurance company by false and fraudulent representations is part of the definition of the offense of insurance fraud found in section 118, and further that to constitute such attempt, there must have been a submission of written representations or affidavits. No such written documents were submitted by either Robinson or Beckvar in the instant case. However, Robinson was not charged for the offense set forth in section 118, requiring written documents falsely making a claim for insurance payment. If he had been, then the lack of such documents would have been relevant to his conviction. Rather, he was charged with, and pleaded guilty to, the offense of attempted insurance fraud, which is committed by anyone making an act constituting a substantial step toward the commission of the offense of insurance fraud. (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).) Thus, anyone taking a substantial step toward attempting to obtain money from an insurance company through the submission of false written documents, or anyone aiding and abetting such person, under accountability principles (see Ill. Rev. Stat. 1981, ch. 38, pars. 5 — 1, 5 — 2), would be held to have attempted the crime of insurance fraud. The factual presentation in the instant case indicated that Robinson took a substantial step toward attempting to defraud Beckvar’s insurance carrier when, pursuant to his agreement with Beckvar, he took Beckvar’s boat and concealed it, "with the intent that Beckvar would attempt to obtain an insurance payment for its theft. Further, the evidence established that Beckvar took a substantial step toward the commission of the offense by telephoning his carrier and making the claim report to them. Under established principles of accountability, Robinson was guilty of attempting to commit insurance fraud. We reject the defense’s reading of section 118, which would have the effect of limiting attempted insurance fraud to those situations where written documents are submitted in support of a claim. If false written documentation is submitted in an attempt to obtain an insurance payment, then the crime of insurance fraud, not attempt, has been committed. If a substantial step is taken toward attempting to obtain money through such representations, then the crime of attempted insurance fraud has been committed. The latter is shown to have been the case in the case at bar. We find no conflict between the provision setting forth insurance fraud (Ill. Rev. Stat. 1981, ch. 73, par. 1101) and the attempt provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8— 4), nor any legislative intention to eliminate application of the attempt provision to cases of insurance fraud tmder section 118. Neither do we find any constitutional vagueness in the insurance fraud provision.

In summary, there is a crime of attempted insurance fraud in Illinois, and the factual presentation before the trial court on the defendant’s plea of guilty indicated that he had committed that crime by taking and concealing Beckvar’s boat with the intent that Beckvar submit a false claim for its theft. The defense, in another argument focusing upon an alleged failure to present a sufficient factual basis for the plea, argues that nothing was presented to the trial court at the hearing to indicate the value of the boat or the amount of money sought from the insurance company in Beckvar’s claim. Therefore, the defense contends, the State failed to show all elements of the offense. Initially, we note that section 118, with respect to value, specifies that the offense is committed when “any sum of money” is sought to be falsely obtained from an insurance company. The penalties for insurance fraud vary, however, depending upon the amount obtained, or sought to be obtained, from the insurance carrier. If $25 or more is claimed, then the offense is a Class 4 felony. If less than $25 is claimed, then the offense is a Class B misdemeanor. While no amount was put forth by the State concerning the claim made by Beckvar for the allegedly stolen boat, it is evident that the boat had some value (see People v. Sparks (1972), 9 Ill. App. 3d 470, 292 N.E.2d 447), and moreover, that the participants in the scheme intended that the company pay some money to Beckvar for the theft of the boat. That Beck-var had a policy covering theft, and that he made a claim for the theft over the phone, is sufficient factual foundation for a conclusion that he was attempting to obtain some money from his insurance carrier. While no specific amount was given to the trial court in support of the plea agreement and guilty plea, the record is sufficient to support an inference that the claim was to be for some money, thus satisfying the statutory requirement. However, since there is nothing on which to conclude that its value exceeded $25, as the State concedes, we find that the court erred in sentencing Robinson to a term of imprisonment based upon a conviction for a Class A misdemeanor. Under the pertinent provisions of section 8 — 4(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)), the defendant’s conviction for attempted insurance fraud should have carried a sentence no greater than that for the offense attempted, which under the facts here, would be for a Class B misdemeanor. The maximum incarceration for a Class B misdemeanor is six months. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—3.) Therefore, we reverse the judgment insofar as it specifies conviction for a Class A misdemeanor and change the conviction to one for a Class B misdemeanor. However, since the defendant has already served his time in prison, no change in his status is involved.

The judgment of the circuit court of La Salle County is affirmed, in part, and reversed in part, with a modification.

Affirmed in part, reversed in part and modified.

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