author: JUSTICE TRAPP

text:
      In re MARRIAGE OF VIRGINIA L. HAGAMAN, Petitioner-Appellee, and DONALD E. HAGAMAN, Respondent-Appellant.
    Fourth District
    No. 4 — 84—0072
    Opinion filed April 25, 1984.

      Charles H. Delano, of Delano Law Offices, P.C., of Springfield, for appellant.
    John R. Keith, of Holley, Keith & Mehlick, of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The parties were married on July 1, 1972. On October 4, 1983, Virginia Hagaman filed a petition for dissolution of marriage. On November 29, 1983, the trial court found grounds for dissolution, reserving questions of property disposition. In the interim, the parties continued residing together at the marital residence. On December 8, 1983, Virginia Hagaman filed a petition for an order of protection pursuant to section 101 et seq. of the Illinois Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301 — 1 et seq.). After hearing on December 9, 1983, the trial court (1) found that respondent had engaged in abuse within the meaning of the Act, (2) entered an order of protection in favor of petitioner and her daughter by a previous marriage, (3) awarded petitioner exclusive possession of the marital residence, and (4) entered a finding that there was no reason to delay enforcement of an appeal (87 Ill. 2d R. 304(a)). The trial court denied respondent’s motion to reconsider pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203). Respondent appeals from the judgment of the circuit court of Sangamon County. While the notice of appeal is labeled as an interlocutory appeal from an injunction, in such form the notice is untimely. However, this court has jurisdiction under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

Respondent raises five issues on appeal: (1) whether the record supports a finding of abuse as defined in section 103(1) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301 — 3(1)); (2) whether the statutory definition of “abuse” under section 103(1) is so unclear as to violate his due process rights; (3) whether the order was improper since the court did not make the findings required by section 208(d)(1) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2302 — 8(d)(1)); (4) whether he was improperly prevented from inquiring or commenting on the frequency, severity, pattern, and consequences of his past abuse of family members; and (5) whether the court erred in granting petitioner exclusive possession of the residence for one year or until conclusion of the dissolution proceedings.

At the outset we note that respondent’s brief presents a rather selective recitation of the facts and is not in compliance with Supreme Court Rule 341(e)(6) (87 Ill. 2d R. 341(e)(6)), which requires that facts necessary to an understanding of the case be set forth accurately and fairly.

Testimony presented at the December 9 hearing is briefly summarized here. Petitioner’s 19-year-old daughter by a previous marriage testified that she had been awakened around midnight on December 7, 1983, by a discussion between the parties in their bedroom across the hall. She heard her mother inquire why the November mortgage payment had not been made. Respondent commenced making remarks about petitioner’s family. Petitioner responded by defending her family and referring to respondent in unflattering terms. Respondent left the parties’ bedroom, entered the daughter’s room and asked her to tell her mother to leave him alone. The daughter screamed at respondent to leave her alone and turned over. Respondent grabbed the daughter by the feet and dragged her from her bed through the hallway and into the living room. The daughter (five feet tall and 98 pounds) struggled with respondent (5 feet 9 inches tall and 190 pounds), hitting, scratching and kicking him. Petitioner tried to pull respondent away from her daughter. Respondent started to throw the daughter out of the house in her pajamas. The daughter stated she was going to call the police. Respondent told her to go ahead but knocked her head against the kitchen wall by the phone four times. After she called the police, she cursed at respondent and he slapped her.

The daughter testified that respondent had never hit her before. She said her mother had often called respondent names during arguments and that on occasion, respondent had locked himself in the basement or a bedroom at such times. She said respondent had hit petitioner about a year earlier and that she had seen him hit petitioner eight or 10 times over an 11-year period.

Virginia Hagaman testified that respondent had returned home on December 7 around midnight. Her inquiry on the house payment led to a 15- to 20-minute verbal argument. When respondent dragged her daughter to the front room, petitioner (5 feet 3 inches tall and 110 pounds) tried to pull respondent away from her. Respondent knocked petitioner away by throwing his arm back. Petitioner testified that her daughter and respondent tussled at the telephone in the kitchen while she tried to call her other daughter from her bedroom.

Petitioner acknowledged that respondent had not beaten or hit her daughter previously. She said respondent had only beaten her, petitioner, one time more than eight or nine years earlier. She stated respondent had hit and shoved her numerous times since then, including an incident within the previous year when he shoved her out the back door and hit her with his fist. She had been bruised in such incidents a couple of times in the past five years. Petitioner testified she had also seen respondent engage in acts of physical violence directed at a nonfamily member. She said she was afraid of respondent.

Don Hagaman testified that he had returned home after drinking at around 10:45 p.m. on December 7, 1983. In the midst of arguing with petitioner, he had requested that her daughter intercede. Instead the daughter cursed him from her bed. He dragged her to the living room by her feet and left her there. As he walked to the kitchen, both petitioner and her daughter began hitting him. The trial judge observed scratches on the right side of respondent’s face.

Respondent testified that he had slapped petitioner once years earlier when she had taken an overdose, but had otherwise never slapped, hit, shoved, or beaten her. On cross-examination, respondent acknowledged that he had backhanded petitioner once more than eight years earlier. Asked whether there could have been other times he had hit petitioner which he did not recall, respondent answered, “There was one time at the tavern and one other time.” Respondent also acknowledged that he had told petitioner during the previous six months that if she did not do his laundry, the washing machine would not work.

The trial judge found that although the events of December 7 had not been extremely violent and had not caused great bodily harm, the facts presented a domestic situation within the purview of the Illinois Domestic Violence Act. The court found that petitioner had been abused and that there had been threats, harassment, and interference with her living. The court therefore entered the protective order which is the subject of this appeal.

Respondent’s first argument on appeal is that the evidence did not establish he committed abuse within the meaning of the Act. Section 103(1) states:

“ ‘Abuse’ means the act of striking, threatening, harassing or interfering with the personal liberty of any family or household member by any other family or household member, but excludes any reasonable discipline of a minor child by a parent or person in loco parentis of such minor child.” (Ill. Rev. Stat. 1983, ch. 40, par. 2301-3(1).)

Upon review of the record we find that there was testimony to support a finding of abuse within the meaning of the statute.

We do not find persuasive respondent’s citation of section 701 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 701) or In re Marriage of Hofstetter (1981), 102 Ill. App. 3d 392, 430 N.E.2d 79. As the Historical and Practice Notes on section 701 state, the Illinois Domestic Violence Act provides a concurrent remedy to that available under section 701, and the definition of abuse under the Act differs substantially from the test contained in section 701. Section 701 refers to the “ “*** physical or mental well being of either spouse or their children [being] jeopardized by occupancy of the marital residence by both spouses.’ ” (Ill. Ann. Stat., ch. 40, par. 701 (Smith-Hurd Supp. 1983).) Further, the extreme facts present in Hofstetter need not be present to justify relief under either the Illinois Domestic Violence Act or section 701 of the Illinois Marriage and Dissolution of Marriage Act.

Respondent’s second contention of error is that the statutory definition of abuse (Ill. Rev. Stat. 1983, ch. 40, par. 2301 — 3(1)) is so unclear as to violate his due process rights. We note that the standards in assessing the vagueness of a statute differ between penal statutes (see, e.g., Connolly v. General Construction Co. (1925), 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126) and those which are nonpenal in nature. We find the standard enunciated in In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17, to be applicable here:

“Yet it is only where a statute is so indefinite and uncertain that courts are unable to determine what the legislature intended, or where the statute is so incomplete or inconsistent that it cannot be executed, that the law will be invalidated by reason of indefiniteness or uncertainty. (Tometz v. Board of Education (1968), 39 Ill. 2d 593, 237 N.E.2d 498; People ex rel. Drobnick v. City of Waukegan (1954), 1 Ill. 2d 456, 116 N.E.2d 365.) Due process is not a fixed concept unrelated to time, place and circumstances. (Andrews v. County of Madison (1977), 54 Ill. App. 3d 343, 369 N.E.2d 532.) Rather, it is a flexible concept and requires a consideration of the legislative objective and purpose in determining whether a statute is unconstitutionally vague. People v. Schwartz (1976), 64 Ill. 2d 275, 356 N.E.2d 8; People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.” 79 Ill. App. 3d 310, 314, 398 N.E.2d 17, 21.

The purpose of the Illinois Domestic Violence Act, set forth in section 102 (Ill. Rev. Stat. 1983, ch. 40, par. 2301 — 2), is to expand the civil and criminal remedies for victims of domestic violence including, if necessary, the physical separation of the parties to prevent further abuse. Section 102 recognizes that domestic violence and family disharmony often involve a pattern of escalating violence. The Act provides a statutory framework for effecting a brake on that escalation and, as such, is to be liberally construed. While the statutory definition of abuse encompasses a broad range of conduct, we conclude it is not so unclear that courts are unable to determine the legislature’s intent.

It is for the trial court, in its broad discretion, to determine on a case-by-case basis whether there has been abuse. The trial judge must assess the credibility of the witnesses, the acts and statements described, and the tension between household members. In so doing, the trial judge necessarily considers the potential for further abuse. Respondent was afforded notice and hearing as required by the statute and we find no abuse of his due process rights.

Respondent further argues that the protective order was improper because the trial court did not make the findings required by section 208(d)(1) of the Act. That section provides:

“In determining whether to grant a specific remedy in an order of protection, the court shall consider relevant factors, including but not limited to the following, and shall make findings thereon:
(1) the frequency, severity, pattern and consequences of the respondent’s past abuse of the petitioner or any family or household members, including the concealment of his or her location in order to evade service of process or notice, and the likelihood of danger of future abuse to the petitioner or any family or household members.” (Ill. Rev. Stat. 1983, ch. 40, par. 2302 — 8(d)(1).)

While a reviewing court finds a statement of reasons by the trial court highly preferable and of assistance in focusing the issue, where, as here, the record supports the trial court’s finding of abuse within the meaning of section 103(1) of the Act, a reviewing court will not overturn the court’s order solely for the reason that the trial judge did not make specific findings on the factors referenced in section 208(d)(1) of the Act.

Respondent’s fourth argument is that he was improperly prevented from inquiring or commenting on the frequency, severity, pattern, and consequences of his past abuse of family members. Respondent specifically references only three incidents. Each of these, the first in opening statement and the latter two in questioning of petitioner’s daughter, reflects an effort by the trial court to control the proceeding. Although it is often stated that reviewing courts are entitled to have the issues clearly defined, with citation to pertinent authorities, and are not a depository in which an appellant is allowed to dump entire matters of pleadings, court actions, arguments or research upon the court (In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 288 N.E.2d 520), we have reviewed the record and find that respondent’s counsel elicited ample information on the past relationship of the parties and was given abundant leeway in doing so.

Finally, respondent contends that the trial court erred in excluding him from the marital residence and that his conduct did not justify the harsh remedy ordered. We disagree. The Act contemplates a grant of possession of a residence to a petitioner, to the exclusion of a respondent, under circumstances enumerated in section 208(cX2) (Ill. Rev. Stat. 1983, ch. 40, par. 2302 — 8(c)(2))—one being where the parties are spouses. The grant of possession in this case was appropriate. Moreover, we note the trial judge advised that the parties could agree to suitable alternative housing for petitioner in lieu of the marital residence.

Affirmed.

MILLS, RJ., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    MARY E. MARTINEZ et al., Plaintiffs and Counterdefendants-Appellants, v. RAYMOND F. KNOCHEL et al., Defendants (Curry Ready Mix and Building Supplies, Inc., et al., Defendants and Counterplaintiffs-Appellees; Mary E. Martinez, et al., Counterdefendants; St. Louis Flexicore, Inc., et al., Defendants and Counterdefendants-Appellees).
    Fourth District
    No. 4 — 83—0242
    Opinion filed April 25, 1984.

      Harris & Harris, of Lincoln, for appellants.
    Kepner & Giganti, of Springfield, for appellee Chanen’s, Inc.
    Mohan, Alewelt & Prillaman, of Springfield, for appellees Curry Ready Mix and Building Supplies, Inc. and Curry Ice & Coal, Inc.
    Jefferson Lewis and Nolan Lipsky, both of Petersburg, for appellee St. Louis Flexicore, Inc.
   JUSTICE MILLER

delivered the opinion of the court:

This appeal involves mechanics’ liens that were filed against five acres of land outside Lincoln. The four plaintiffs together owned an undivided one-half interest in the land; the owner of the other one-half interest was defendant Raymond Knochel, the plaintiffs’ uncle. On September 10, 1979, Knochel agreed to sell the land to defendant Paul Jackson and his company, Sports Systems, Inc., who planned to construct and operate a sports center on the property. In pursuit of that plan Jackson then procured a contractor to construct the envisioned building. Construction went forward in the last several months of 1979, but the building was never completed. The liens at issue arise from the contractor’s agreements with various subcontractors that did work or supplied materials but were not paid.

The plaintiffs sued to cancel the claims against their interests, arguing that they had not authorized or permitted the construction. After hearing testimony, the trial judge found that Knochel had been acting as the plaintiffs’ agent and held that the liens were valid against them. The major issue on appeal concerns the scope of Knochel’ s authority as the plaintiffs’ agent. Alternatively, the plaintiffs argue that two of the subcontractors did not perfect their claims, and they also attack the trial court’s allowance of various costs. Except for the plaintiffs’ objection to the costs, the parties do not dispute the amounts involved here.

The plaintiffs filed their complaint July 3, 1980, seeking to cancel the mechanics’ liens that had been filed against their property. The plaintiffs alleged that although they had given Knochel oral approval to sell the five acres for $45,000, they had never signed a contract, had not known about the construction activity until after it was already under way, and had not authorized it. According to the complaint, the contractor had filed a claim against them for $150,000, and this included the claims of 10 subcontractors totaling about $63,000. The plaintiffs later amended the complaint by alleging that they first noticed the construction on the property on October 15,1979.

Only five of the subcontractors sought to enforce their claims in response to the complaint: Curry Ready Mix, which supplied concrete, Curry Ice & Coal, which supplied and hauled sand and similar materials, Chanen’s, which supplied fabricated steel, St. Louis Flexicore, which supplied and installed floor slabs, and Reilly Construction, which pumped concrete. Five other subcontractors did not perfect their claims and were eventually defaulted. Jackson, Sports Systems, Inc., and the general contractor also failed to participate and were eventually defaulted.

After hearing testimony and reviewing the record, the trial judge found that the five active claimants had valid, perfected liens. The court specifically found that Knochel had acted as the plaintiffs’ agent and that the plaintiffs and Knochel had permitted the making of the contracts with the lien claimants.

On March 4, 1983, the court entered a proposed decree of foreclosure and sale of the five affected acres. Each of the five successful lien claimants was awarded the amount of its claim, the cost incurred in establishing the claim, and the appropriate amount of interest. Thus, the court ordered the plaintiffs and Knochel to pay Curry Ready Mix $13,223.13, Curry Ice & Coal $9,043.90, Chanen’s $6,758.87, St. Louis Flexicore $14,177.36, and Reilly Construction $2,375.08.

Whether the subcontractors’ liens are enforceable against the plaintiffs and their interests in the five acres depends upon the circumstances surrounding the sale of the land to Jackson and his company. Testifying at trial were the four plaintiffs, defendant Knochel, and Daniel Bock, the realtor who handled the sale of the property. The testimony centered on the scope of Knochel’s authority and the extent of the plaintiffs’ knowledge of what was occurring on their property. New of the underlying facts are in dispute.

The five acres involved here are part of an 80-acre tract of farmland once owned by George and Katherine Knochel. In 1953 Katherine, then a widow, died, leaving the land to her two children, Raymond Knochel and Catherine Knochel Dehner, as tenants in common. Catherine Dehner died in 1977, leaving her interest in the land to her four children, the plaintiffs, in equal shares as tenants in common.

The plaintiffs had moved away from Lincoln before their mother’s death. Plaintiff James Dehner testified that the land was for sale even before Catherine Dehner died. The property was listed with Bock, the realtor, who had signs on the property advertising it for sale in 1979. James Dehner also said that Raymond Knochel had the children’s oral approval to try to find a buyer; Knochel generally handled all matters concerning the property, including the payment of taxes and the collection of crop rentals. Dehner testified that he and his sisters wanted the five acres cleared of trees and brush before it was sold — it was not tillable — but that they never agreed for construction to proceed before the sale was final. Dehner knew in September 1979 that a potential buyer had been found, and a month later he learned that construction was going ahead on the land. On October 27, 1979, he and his sisters met with attorney John Gehlbach to discuss their mother’s estate, which Gelbach was handling; Gehlbach was their uncle’s lawyer also. At this meeting the plaintiffs demanded that the construction cease. Early in 1980 Dehner began receiving 90-day notices of liens from various subcontractors.

Plaintiff Kathy Killion testified that in September 1979 Bock told her that the five-acre parcel had been sold to Jackson and that a sports center was going to be built there. Killion visited Lincoln October 5, 1979, to meet with Gehlbach about her mother’s estate; Killion and her brother were co-executors. During that visit Gehlbach took her to the construction site, and later that day she met Jackson, the buyer. Killion communicated with her siblings that day, telling them about the construction. Killion acknowledged that she did not demand a halt to the construction until later that month, at the meeting on October 27. Killion also testified that Raymond Knochel had received her oral approval to try to find a buyer for the land and that the land had been advertised for sale since before 1977.

Plaintiff Cynthia Stephens testified that she, her siblings, and Knochel attended two funerals of relatives in Lincoln in August 1979 and on both occasions discussed, in general terms, the sale of the land.

Plaintiff Mary Martinez repeated much of her siblings’ testimony. She had known that the land was for sale and that Knochel and Bock were trying to find a buyer for it.

Defendant Raymond Knochel testified that he managed the farm that includes the five acres at issue here. He had been seeking a buyer for the five acres since 1975, when he and Catherine, his sister, decided to try to sell it. He believed that he had the plaintiffs’ authority to sell the land, and he had discussed that subject with them before signing the contract with Jackson.

Daniel Bock, the realtor handling the sale, testified. According to Bock, beginning in 1975 Knochel entered into several successive listing agreements with him, and in each one Knochel was identified as the owner or authorized agent. Bock testified that he met with Paul Jackson in August 1979 to discuss the land and that in September Jackson made an offer. The contract was signed September 10, 1979, for a purchase price of $45,000 for the five acres. Soon after that Bock learned of the plaintiffs’ interests in the land — he had always assumed that Knochel was the sole owner. On September 18, 1979, Bock wrote to plaintiffs Dehner and Killion, as co-executors of their mother’s estate, telling them the news of the sale.

Bock testified that although various matters were delaying the closing of the sale, Jackson wanted to proceed with construction of his sports building. In later September Knochel gave his permission for a foundation to be laid if Jackson made another payment toward the purchase price. That was done in the middle of October; by that time Jackson had paid $7,000.

Section 1 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1) delimits the class that may pursue claims of liens:

“Any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land, furnish material ***.”

The subcontractor’s lien, arising under section 21 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 21), depends on the existence of a contract between the owner and the contractor. (B & C Electric, Inc. v. Pullman Bank & Trust Co. (1981), 96 Ill. App. 3d 321, 421 N.E.2d 206.) The plaintiffs argue that they did not knowingly permit or authorize Jackson, the buyer, to contract for the improvements and that Knochel lacked the authority to bind them to any agreement with Jackson.

The subcontractors argue that the plaintiffs were served and bound by three agents — Knochel, Bock, and Gehlbach. The plaintiffs knew that Knochel handled the farm’s affairs and had given him their permission to sell it. They also knew that the land was listed for sale with Bock. Finally, Gehlbach was the attorney for their mother’s estate as well as for their grandmother’s estate. Although the precise scope of each of these agents’ authority is not clear, Knochel’s longstanding management of the land and his general authority to contract for its sale were sufficient for him to bind the plaintiffs in the agreement of September 10, 1979, and the later discussions on beginning the project before the sale was closed.

In deciding to enforce the liens against the plaintiffs the trial judge relied on Wanzer v. Smorgas-Brickan Developers, Inc. (1970), 130 Ill. App. 2d 378, 264 N.E.2d 435. In that case the buyers entered a building under an agreement for deed and began to have improvements made to it; the buyers later went bankrupt without having paid their materialmen, who then filed liens against the property. The court enforced the liens, holding that the sellers’ agent, who was their real estate agent and manager, realized that the improvements would be made and that that knowledge could be imputed to the owner-sellers. A similar result was reached in Mutual Construction Co. v. Baker (1925), 237 Ill. App. 596, where the owner’s son managed the property and knew that the improvements were being made. His knowledge was imputed to his mother.

We agree with the trial judge that the plaintiffs were bound by their uncle’s acts and therefore the subcontractors could pursue claims of liens against them.

The plaintiffs argue next that the lien of St. Louis Flexicore is unenforceable because that company did not file its counterclaim until more than two years after its final delivery of material. Section 9 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 9) contains the two-year requirement and says in part:

“Such suit shall be commenced or counterclaim filed within two years after the completion of the contract, or completion of the extra or additional work, or furnishing of extra or additional material thereunder.”

Section 28 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 28) makes this time limit applicable to subcontractors’ claims. For St. Louis Flexicore the two-year period began running November 19, 1979, the date of its last delivery to the construction site in Lincoln. The company filed an answer to the plaintiffs’ complaint on July 25, 1980, and filed its counterclaim September 24, 1982, several days before trial. The trial judge ruled that the counterclaim was an amendment to the timely answer and therefore was within the period allowed by section 9.

Section 12 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 12) provides in part:

“The court shall permit amendments to any part of the pleadings, and may issue process, make all orders, requiring parties to appear, and requiring notice to be given, that are or may be authorized in other civil actions and shall have the same power and jurisdiction of the parties and subject matter, and the rules of practice and proceedings in such cases shall be the same as in other civil cases, except as is otherwise provided in this act.”

We see nothing in the Mechanics’ Liens Act that would prohibit application of section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616), on amendments to pleadings.

In allowing the counterclaim as an amendment, the trial judge relied on this court’s opinion in C.S. Lewis, Inc. v. Cabot Corp. (1980), 85 Ill. App. 3d 708, 407 N.E.2d 84. In that case, a suit to foreclose a mechanic’s lien, the subcontractor entered its appearance within the two-year time limit but did not file an answer or counterclaim until after the two years were up. The subcontractor argued that his claim was timely because it related back to when the appearance was entered; the subcontractor relied on section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46(2)), now section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 616(b)), which provides that a claim asserted in an amended pleading is not barred by any time limit if it apparently arose from the same transaction set forth in the party’s original, timely pleading. The court said that even if the entry of appearance was considered a pleading within the meaning of the statute, the subcontractor’s did not set forth a transaction, and therefore did not come within the scope of the statute on amendments. C.S. Lewis distinguished Douglas Lumber Co. v. Chicago Home (1942), 380 Ill. 87, 43 N.E.2d 535, a subcontractor’s action to foreclose a mechanic’s lien. The subcontractor there was allowed to amend his complaint to seek recovery for material — lumber—that had been omitted from the earlier pleading. The court in Douglas Lumber said:

“Defendants further contend such amendment introduced a new item of material into the case for the first time and that it was barred by the time limitation of the Lien act. Section 46 permits an amendment at any time before judgment with respect to any matter either of form or substance which may enable the plaintiff to sustain the claim intended to be brought. It further provides that the cause of action shall not be barred by lapse of time under any statute prescribing or limiting the time for suit, if the original pleading was filed in apt time and if the cause of action asserted in the amendment grew out of the same transaction or occurrence originally set forth. The amendment relates back to the date of the filing of the original pleading. It is clear the facts in this case are within the provision of the statute. The contention is without merit.” 380 Ill. 87, 98-99, 43 N.E.2d 535, 540.

The pleadings of St. Louis Flexicore came within the rule in Douglas Lumber. In its answer to the plaintiffs’ complaint, St. Louis Flexicore admitted filing a claim for $12,200, the amount specified in the complaint. The answer and the counterclaim are sufficiently specific to support the conclusion that they refer to the same transaction.

A different result was reached in Well Done Heating & Sheet Metal Co. v. Ralph Schwartz & Associates (1983), 112 Ill. App. 3d 438, 445 N.E.2d 451. There the lien claimant, a contractor, sought to file an otherwise untimely cross-complaint against the owner of the property after the plaintiff, a subcontractor, settled his claim and the action was dismissed with prejudice. The court rejected the contractor’s argument that his cross-complaint qualified as an amendment to his earlier answer. First, this would have required a major realignment of the parties, for both the contractor and the property owner were named as defendants in the original action by the subcontractor. Second, after the two-year time limit has passed, a new defendant cannot be added in an action to foreclose a mechanic’s lien, nor can a cross-claim be brought against a codefendant.

The objections expressed in Well Done Heating to allowing the amendment do not obtain here. The plaintiffs brought this action to cancel the various liens that had been filed against their property, and it would be inequitable to prevent St. Louis Flexicore from asserting its claim. The provision on amendments that is contained in the Code of Civil Procedure may be applied here (Douglas Lumber), and we are satisfied that the amendment was properly allowed.

The plaintiffs also argue that St. Louis Flexicore and Reilly Construction failed to perfect their liens because they did not comply with the requirements in section 24 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1981, ch. 82, par. 24) that the owners be served with notice of the claims within 90 days of completion of work by the subcontractor. The plaintiffs did not raise this objection until their post-trial motion, however, and we conclude that it has been waived.

Finally, the plaintiffs object to $90.50 in costs that the trial court assessed against them; they do not question the assessment of $376.55 for various deposition fees and charges. The amount objected to comprises money spent for recording lien claims, recording a lis pendens notice, sheriff’s service of 90-day notices, and transcription by a court reporter. Whether to tax these items as costs was within the trial court's discretion, and we see no reason to disturb that decision.

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE MILLER JUSTICE GREEN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERCY FRAZIER JR., Defendant-Appellant.
    Fourth District
    No. 4 — 83—0204
    Opinion filed April 19, 1984.

      GREEN, J., specially concurring.
    Michael R. Cornyn, of Allen & Korkowski & Associates, of Rantoul, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant was tried by a jury, convicted of driving while under the influence of alcohol, and sentenced to 300 days’ imprisonment. An analysis of the defendant’s breath an hour after his arrest revealed a blood-alcohol concentration of .28, and this information was introduced into evidence. On appeal the defendant argues that the results of the breath test should not have been used at trial and that the jury received misleading instructions on the subject of intoxication. The defendant also argues that he was not proved guilty beyond a reasonable doubt. We conclude that no reversible error occurred and that the defendant was proved guilty of the offense, and we affirm the judgment of the circuit court.

In Champaign shortly after 6 p.m. on October 15, 1982, the defendant, driving home, was involved in a car collision several feet from his driveway. The defendant’s car hit the left rear side of a car that was traveling in the opposite direction; both drivers had moved toward the center of the street to avoid parked cars, and apparently the accident resulted from those maneuvers. The police were called. At trial, two officers testified that they found the defendant seated behind the steering wheel of his car, staring straight ahead. The defendant’s speech was clear, but his breath smelled of alcohol, his eyes were glassy, and he had trouble standing. The defendant was arrested and taken to the Champaign police station, where he initially refused to submit to a breath test but later changed his mind and took the test. The defendant also took two dexterity tests at the police station, and he had trouble performing both. Both police officers believed that the defendant was intoxicated at the time of his arrest.

The defendant testified that in the four hours preceding the accident he went to two taverns and had a total of four or five mixed drinks of whiskey and water. The defendant denied that he was unsteady on his feet after the accident. The bartender at the first tavern confirmed the defendant’s account of his two or three drinks at that establishment and said that he had not noticed anything unusual about the defendant’s condition. A neighbor who heard the collision and watched the police escort the defendant from his car testified that the defendant did not have any difficulty walking.

I

The defendant first argues that because he initially refused to take the breath test, one should not have been given and therefore the trial court should have granted his motion to suppress the test results. In arguing the motion, the parties agreed that the report made by the arresting officer, Hockings, would constitute the evidence. According to the report, upon arriving at the police station the defendant was informed of his rights under the implied consent law, section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1). When the defendant announced his refusal to take the test, Hockings advised him to consider the consequences of that decision. The defendant persisted in his refusal, so Hockings told him to think about it for 10 minutes. Soon the defendant changed his mind and agreed to take the test, which showed a blood-alcohol concentration of .28. The defendant argues that his initial decision to refuse to take the test was binding and irrevocable and that the police conduct resulting in his eventual decision to take the test was coercive.

The defendant first relies on the provision in section 11 — 501.1(c) that if a driver refuses to take a test, “none shall be given” and instead the clerk of the county court is to be notified of the refusal (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1(c)). The defendant interprets this as barring all testing after a refusal.

The adjuration, “none shall be given,” expresses the legislature’s decision to prohibit involuntary blood and breath tests, though they would be constitutionally permissible under Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826. (See People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447 (discussing earlier versions of the implied consent statute (Ill. Rev. Stat. 1971, ch. 951/2, par. 11 — 501; Ill. Rev. Stat. 1969, ch. 95V2, par. 144)).) The legislature has found involuntary tests distasteful and has chosen instead to permit drivers to refuse to take tests, to withdraw their implied consent, but bear the consequences that may flow from that decision. (See South Dakota v. Neville (1983), 459 U.S. 553, 559, 74 L. Ed. 2d 748, 756, 103 S. Ct. 916, 921 (“South Dakota, however, has declined to authorize its police officers to administer a blood-alcohol test against the suspect’s will. Rather, to avoid violent confrontations, the South Dakota statute permits a suspect to refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. [Citation.] This permission is not without a price, however”).) The statute does not prevent the police from administering a test to a driver who has changed his mind and has voluntarily decided to submit to a test; the provision prevents only involuntary testing.

The defendant also relies on People v. Shorkey (1974), 23 Ill. App. 3d 662, 321 N.E.2d 46. The implied consent statute applicable in that case provided that a driver’s “refusal to submit to the test within 90 minutes after being given the written notice [i.e., of his statutory rights] shall constitute a refusal to take the test.” (Ill. Rev. Stat. 1973, ch. 95V2, par. 11 — 501.1(a)(9).) There, a driver at first refused to submit to a test but within the 90-minute period changed his mind and asked to take it; the police refused to administer one. The driver argued that his consent was timely and was not precluded by his earlier decision to refuse to take the test. On appeal the court held that “a refusal to submit to a chemical breath analysis is a binding refusal which cannot be nullified by a subsequent consent” (People v. Shorkey (1974), 23 Ill. App. 3d 662, 665, 321 N.E.2d 46, 48); the same result was reached in People v. Wierman (1982), 107 Ill. App. 3d 7, 436 N.E.2d 1081. The defendant argues that this reasoning supports his theory that a drive may not revoke an initial refusal to take a test.

Wierman and Shorkey do not prohibit the police from administering a test as a matter of grace to a driver who has reconsidered his initial refusal. The problem in those two cases stemmed from the 90-minute period then allowed by the implied consent law for a driver to submit to a test, and the question common to those cases was whether a driver could be bound irrevocably by a refusal made before the 90 minutes were up. The statute applicable here was rewritten by Public Act 82 — 311, effective January 1, 1982 (see People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065 (discussing the legislative history of Pub. Act 82 — 311)) and does not contain a similar provision concerning time. Wierman and Shorkey should be read as holding only that a refusal would bind the driver if the police wanted it to; thus, the police did not have to wait out the remainder of the 90 minutes, unemployed, once the driver refused to take a test.

We see no reason to prohibit the police from allowing a driver to take a test if he has reconsidered his refusal. What is finally done is all that counts of course: just as a driver who fails to complete a test will be deemed to have refused to take it (People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459), the initial refusal of the defendant here could have been given no effect once he completed the test.

The defendant also argues that he was mentally coerced into taking the test. That would be contrary to the legislature’s decision to permit drivers to refuse to take tests. The defendant’s eventual decision to submit to the test was made freely and voluntarily. Officer Blockings merely advised the defendant to think carefully about what he wanted to do and gave the defendant some time to reflect. This does not even constitute nagging and falls far short of coercion.

Therefore, we conclude that the trial court did not err in denying the defendant’s motion to suppress the breathalyzer results.

II

The defendant argues that the result of the breathalyzer test should not have been admitted into evidence. The defendant bases this objection on two separate grounds: first, that the State failed to produce the text of certain standards on vetting and certifying breathalyzer machines, and second, that the State failed to show that the results of the breath test were accurate evidence of the defendant’s blood-alcohol concentration at the time he was driving.

Before introducing the testimony of Kent Randolph, the certified breathalyzer technician who regularly tests the accuracy of the Champaign police department’s machine, the State asked the trial judge to take judicial notice of a pamphlet issued by the Illinois Department of Public Health and called, “Standards and Procedures for Testing for Alcohol and All Other Drugs by Breath, Blood, and Urine Analysis.” The date of the pamphlet was January 1, 1982. Rule 4.04 of the “Standards and Procedures” said:

“Instruments which meet the provisions of Rules 4.01, 4.02, and 4.03 will be tested by the Department in accordance with the Standards for Devices to Measure Breath Alcohol which were promulgated by the National Highway Traffic Safety Administration, U.S. Department of Transportation.”

The defendant asked the State to produce the National Highway standards; the State asserted that they pertained only to the selection of machines and not to their periodic inspections and tests for accuracy. The State pointed out that rule 10 of the “Standards and Procedures” contains the necessary information on the procedures for regularly testing and certifying machines. The defendant argues that the National Highway rules mentioned in rule 4.04 must pertain to something other than procedures for the selection of machines, for the type of breathalyzer used here is listed in rule 4.02 as an approved model, which implies that it had been selected on the basis of standards other than those later referred to in rule 4.04. The trial judge took judicial notice of the “Standards and Procedures” and did not require the State to produce the National Highway standards.

The “Standards and Procedures” pamphlet was not introduced into evidence and is not part of the record on appeal, so our review of this question is necessarily handicapped by the pamphlet’s absence. Based on the transcript of the informative colloquy among defense counsel, the assistant State’s Attorney, and the trial judge on this question, we conclude that the relevant standards on the periodic testing and certifying of machines were found in rule 10, which was before the court and counsel, and that the lack of the National Highway standards did not limit defense counsel in his cross-examination of Randolph. The “Standards and Procedures” and Randolph’s testimony provided a sufficient foundation for the admission of the breathalyzer results. Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.2(a)(1).

The defendant also argues that the State failed to show any connection or relationship between the breathalyzer results and the level of his blood-alcohol concentration at the time he was driving. The defendant notes that the test was given about an hour after he was taken from his car and that alcohol is absorbed into the blood at varying rates. The defendant argues that expert testimony was required to explain to a jury the significance of the test results.

This court recently rejected a similar argument in People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931. Here, the defendant testified about his drinking during the several hours before his arrest, and the two police officers believed that the defendant was intoxicated at the time of his arrest. The breathalyzer results are relevant evidence of the defendant’s intoxication, and they were properly admitted.

Ill

The defendant next attacks the instruction that was used here to define “under the influence of alcohol.” The jurors were told:

“A person is under the influence of alcohol when as a result of drinking any amount of alcohol his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care.”

This is Illinois Pattern Jury Instruction (IPI), Criminal, No. 23.05 (2d ed. 1981), with “alcohol” substituted for “intoxicating liquor.”

The defendant argues that the definition should have referred specifically to driving and the ability to operate a motor vehicle because that is the basis of the offense, the activity that is prohibited. The defendant also believes that specific reference to driving was needed to focus the jury’s attention on his condition at the time he was driving rather than at some other, irrelevant time.

In support of this argument the defendant relies on People v. Schneider (1936), 362 Ill. 478, 200 N.E. 321; the Committee Note to IPI Criminal No. 23.05 also cites Schneider. That was a conviction for manslaughter arising out of an automobile accident, and one of the disputed issues was whether the defendant was intoxicated. The supreme court held that reversible error was committed when the trial judge refused to give the jury an instruction defining “intoxicated.” Discussing the meaning of the term, the court said:

“Many other definitions might be quoted, but we think it unnecessary to prolong the discussion. They all differ in wording, but it will be found that each of them in some way or other includes the central idea of such an impairment of the faculties as to diminish the ability to manage the vehicle and impair the faculties of care and caution on the part of the driver.” (People v. Schneider (1936), 362 Ill. 478, 485, 200 N.E. 321, 324.)

The defendant here offered an instruction containing this language.

The instruction that was used in this case did not depart from the “central idea” endorsed in Schneider. The two standards are identical: both speak of an impairment of the ability to act with care. The instruction did not need to mention driving, for the definition of “intoxication” does not vary according to the activity engaged in. To hold otherwise would imply that the consumption of alcohol may impair a person’s ability to think and act while it leaves intact his ability to drive, a notion we reject. “Thinking” and “acting,” the concepts used in the instruction, are broad enough to include all the tasks associated with driving.

Furthermore, the jury did not need to be reminded again that the offense here was based on the defendant’s condition while he was driving and not at some other time. Other instructions, such as the ones defining the offense and summarizing the issues, referred to driving as the relevant activity. For example, at the defendant’s request the trial court modified the second proposition in the issues instruction, taken from IPI Criminal No. 23.06, to say, “That the defendant at the time he drove the vehicle was under the influence of alcohol,” rather than simply, “That the defendant then was under the influence of alcohol.” The definition of “under the influence of aleohoi” did not require similar refinement; the only purpose of that instruction was to define the phrase, and any mention of driving would have been irrelevant and possibly misleading. The trial court did not err in using the instruction.

IV

The defendant also argues that the jury received an improper instruction on the presumption of intoxication that arises by statute when a person’s blood-alcohol concentration equals or exceeds .10. The instruction said:

“If you find beyond a reasonable doubt that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of alcohol;
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of alcohol.”

This instruction is IPI Criminal No. 23.06, with the phrase, “beyond a reasonable doubt,” added and the phrase, “under the influence of alcohol,” used in place of “under the influence of intoxicating liquor.” The source of IPI Criminal No. 23.06 is section 11 — 501.2(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.2(b)), which sets forth several presumptions, including the one at issue here, based on different blood-alcohol concentrations.

The defendant argues first that the instruction should have told the jurors that his blood-alcohol concentration had to be .10 or more while he was driving, as opposed to some other, irrelevant time. In People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931, this court criticized a similar instruction for not specifically referring to driving. Malik said:

“The tendered instruction also is of questionable accuracy in that it does not require the jury to find that the concentration of .10 or more alcohol occurred at the time the defendant was driving. Section 11 — 501.2(b) clearly states that the presumption (1) is to be offered in a trial of a criminal action '*** arising out of acts alleged to have been committed by any person while driving *** a vehicle,’ (2) concerns the concentration of alcohol ‘at the time alleged,’ and (3) arises if the concentration of .10 or more existed ‘at that time,’ (Emphasis added.) Ill. Rev. Stat. 1981, ch. 95V;, par. ll-501.2(b).” (113 Ill. App. 3d 206, 211, 446 N.E.2d 931, 934-35.)

A reference to driving would keep the jury’s attention properly focused on the time that the defendant was driving, rather than the time that he took the test. But as we noted in discussing the definition of “under the influence of alcohol,” other instructions made clear that the intoxication had to be present while the defendant was engaged in driving, and those instructions would have cured any error in this regard.

The defendant also argues that the jury may have interpreted this instruction as expressing an unconstitutional presumption of intoxication. In raising this objection at trial the defendant offered instructions that would have permitted the jury to infer, as opposed to presume, his intoxication from the test results. We note at the outset the correct vocabulary that must be used here. An inference, occasionally referred to as a “permissive presumption,” permits but does not require a jury to find that one fact is proved by the existence of another fact. In certain cases inferences may be commended to the jury’s attention through instructions. (County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) A presumption, occasionally referred to as a “mandatory presumption,” requires the jury to find one fact upon proof of the existence of another fact, unless the opponent of the presumption introduces evidence to rebut it. The distinction between an inference and a presumption becomes apparent when the opponent fails to present rebutting evidence: the finder of fact may accept or reject the inference as it chooses, but it must take the presumption. In a civil action, an unrebutted presumption would require a directed verdict on that particular point. In a criminal case, however, a verdict of guilt may not be directed, for that would interfere with the jury’s role. (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349.) Another concern implicated by the use of presumptions in criminal cases is the duty of the State to prove every element of an offense beyond a reasonable doubt (In re Winskip (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068).

Resolution of this question must begin with the ways in which the jury reasonably could have interpreted the instruction, for those possible interpretations determine whether the instruction is constitutional. (Sandstrom, v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.) In Sandstrom, a conviction for deliberate murder, the jury was instructed that “ ‘the law presumes that a person intends the ordinary consequences of his voluntary acts.’ ” (442 U.S. 510, 512, 61 L. Ed. 2d 39, 43, 99 S. Ct. 2450, 2453.) Whether the defendant acted with the requisite intent was the only issue at trial. The court found that the instruction was susceptible to two interpretations that would be unconstitutional: first, as stating the conclusion, which was irrebuttable, that the defendant acted with intent, or second, as shifting onto the defendant the burden of persuading the jury of the absence of intent. Both interpretations would violate due process, for they would relieve the State of its burden of proving every element of the offense beyond a reasonable doubt. Also, the conclusive interpretation would invade the fact-finding province of the jury, whose particular duty it is to provide an independent determination of guilt or innocence. Sandstrom said, then, that an instruction that can reasonably be interpreted as conclusive or persuasion-shifting with respect to an element of an offense is unconstitutional and cannot be used. This rule applies even though the instruction can also be interpreted in ways that are constitutional.

The first paragraph of the instruction at issue here commands the jury to presume intoxication from proof beyond a reasonable doubt of the specified blood-alcohol concentration; to a reasonable jury this command could have the effect either of shifting the burden of persuasion to the defendant (a “mandatory presumption”) or, what is perhaps more likely, of conclusively establishing the defendant’s intoxication (a “conclusive presumption”). Either interpretation violates Sandstrom. Furthermore, requiring proof beyond a reasonable doubt of the specified blood-alcohol concentration does not prevent the errors from arising, for that level of proof pertains only to the basic fact, not to the presumed fact. In contrast, the second paragraph of the instruction allows the jury to ignore the presumption and to consider other evidence instead. In People v. Malik (1983), 113 Ill. App. 3d 206, 211, 446 N.E.2d 931, 934, this court had before it a similar version of IPI Criminal No. 23.06 and said in dictum that “the contradiction between the two paragraphs raises at least a close question as to whether the jury might be so confused as to think the presumption was either mandatory or such as to place a burden on the defendant to prove his sobriety. Sandstrom.”

Viewed separately, the two paragraphs are inconsistent: the apparent command of the first is contradicted in the second. But one visible basis for resolving the contradiction is provided by the sequence of the paragraphs, from which the jury here might reasonably have concluded that the second controlled simply because it was later and broader. Furthermore, whatever confusion arose from this instruction was dispelled by the other instructions. The jurors were given a thorough explanation of their independent role in weighing the evidence and determining questions of fact. The jurors were also told that the defendant was presumed to be innocent of the charge, that the State had the burden of proving his guilt beyond a reasonable doubt, and that that burden remained with the State throughout the trial. Finally, the issues instruction said that the State had to prove beyond a reasonable doubt each of the propositions constituting the change. The instructions as a whole cured the error contained in that one paragraph in the instruction on the presumption.

Alternatively, we conclude that any error that came out of the instructions was harmless. In Connecticut v. Johnson (1983), 460 U.S. 73, 74 L. Ed. 2d 823, 103 S. Ct. 969, the court discussed but was unable to decide whether the doctrine of harmless constitutional error set forth in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, could be applied to Sandstrom errors, i.e., jury instructions containing unconstitutional presumptions. The offending instructions in Johnson contained conclusive presumptions of intent. The Connecticut Supreme Court had reversed the convictions affected by the improper instructions without considering the prosecution’s argument that the errors were harmless; the court apparently believed that Sandstrom errors could not be harmless. Four justices of the United States Supreme Court agreed with that view, and four disagreed; the ninth did not express an opinion on the subject, believing instead that the case should not have been accepted for review, and he simply joined the disposition that affirmed the judgment of the State court. Thus, Johnson did not render a binding decision on the question, and courts that previously considered whether Sandstrom errors were harmless have continued to do so. E.g., Spencer v. Zant (11th Cir. 1983), 715 F.2d 1562; Engle v. Koehler (6th Cir. 1983), 707 F.2d 241.

Harmless-error analysis is appropriate here. To be sure, some types of instructional error can never be harmless, and in those instances a new trial will always be necessary regardless of the strength of the evidence against the defendant. (E.g., People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410 (the defendant raised intoxication as a defense to a charge of murder, and the trial court gave the jury two instructions on the defense, one defining it correctly and the other defining it incorrectly); People v. Stromblad (1978), 74 Ill. 2d 35, 383 N.E.2d 969 (an obscenity prosecution in which the jury received an instruction defining “obscenity” too broadly); People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532 (a prosecution for attempted murder in which the defendant asserted self-defense; the jury received two different issues instructions, one correctly referring to the State’s burden of disproving the defense, and one omitting that proposition).) In those cases the court was concerned with both the fundamental nature of the error and the effect of the error on the jury’s performance of its unique function. Misdefining an element may deprive the jury of an essential means of determining guilt or innocence. Giving separate hopelessly conflicting instructions may stymie the jury, for the jury has no means of deciding which instruction is correct and which is not.

These problems are not present here. As we have said, the erroneous first paragraph in the presumption instruction could not have tainted the entire charge to the jury. The error could not have hobbled the jury in carrying out its duties. The error was not so fundamental or basic that it must automatically warrant a new trial.

Chapman said that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.) We are satisfied beyond a reasonable doubt that whatever error occurred here was harmless. The defendant’s own testimony showed that he consumed a fair amount of alcohol in the several hours preceding the accident. The police officers believed that the defendant was under the influence of alcohol when they took him from his car, and their later observations bore that out. The results of the breath test showed a relatively high blood-alcohol concentration. Thus, we conclude that any error emanating from the presumption instruction was harmless beyond a reasonable doubt.

Affirmed.

TRAPP, J., concurs.

JUSTICE GREEN,

specially concurring:

Although, as I stated in Malik, I consider the question to be close, I agree with the majority that IPI Criminal No. 23.06, given in the context of the other instructions, could not reasonably have been interpreted by the jury to be mandatory or to shift the burden of persuasion. However, I am not prepared to hold that, if the instruction could reasonably have been so interpreted, the error was harmless beyond a reasonable doubt. Accordingly, I do not join in that portion of the opinion.

I am otherwise in agreement with the opinion and concur in the decision to affirm.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMIL JOSEPH WIELAND, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0446
    Opinion filed April 17, 1984.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant, Emil Wieland, was tried by a jury, convicted of murder, involuntary manslaughter, robbery, aggravated battery, and battery, and sentenced to concurrent terms of imprisonment of 27 years for murder, seven years for robbery, and five years for aggravated battery. The defendant and another person beat and robbed their victim, William Spates, who was in his sixties. On appeal the defendant argues that his inculpatory statements should have been suppressed because they were made after the police failed to honor his request for counsel, that the State failed to prove that any of his or his partner’s acts contributed to the death of Spates, that the State failed to prove that the murder occurred in the course of a robbery, and that certain convictions must be vacated because they are included offenses of murder or arose out of the same acts as the murder and therefore are redundant. We affirm.

The defendant’s trial began April 15, 1983. Dr. Bak Lee, the pathologist who performed an autopsy on the victim, William Spates, on November 22, 1982, testified that the body had been found the previous day. At the time of the autopsy the body was badly decomposed, and Lee estimated that Spates had been dead for five to 10 days. Lee could not determine the cause of death with certainty. He reported to the coroner’s office that Spates had died from coronary sclerosis, pulmonary congestion, hemorrhage, bronchiectasis, and pleural fibrosis. He did not find any large traumas or lacerations; the decay of the body hid any small trauma. The State asked Lee to assume that Spates was hit in the face and head several times by two young men, that Spates was moderately to severely intoxicated at the time, and that Spates ended up on the floor bleeding and unconscious or barely conscious. Lee said that the facts presented in the hypothetical question “could have been a contributing factor” to the victim’s death; he could not say that they caused death.

Richard Lowthian, of the Michigan State police, testified that he questioned the defendant December 16, 1982, in Michigan. At first, the defendant said that Spates had invited him and his partner, Bill Stout, into his apartment to drink. Spates was intoxicated. The defendant later added that he took $1.72 from Spates’ trouser pocket at this time. Spates was alive when the defendant left, and the defendant denied doing anything to Spates.

Detective Charles Crowe of the Bloomington police department questioned the defendant several times in Bay City, Michigan, in December 1982. The first interrogation occurred December 15. Crowe testified that the defendant told him that he and his partner, Bill Stout, went to the building where Spates lived on November 15, 1982, to talk to the landlord about renting an apartment. They saw a black man with a whiskey bottle, and they gave him a bottle of beer, which they had brought along. The man, Spates, bought a car from the landlord and left. The defendant and Stout then visited a friend, Jamie, who lived in that building. An hour or two later, as they were leaving, they saw the black man again, who gestured for them to go into his apartment. The three drank from a bottle of whiskey that the man had. The man was very drunk. The defendant and Stout left after a while.

Crowe testified that his second conversation with the defendant took place in the morning of December 16, 1982. The defendant gave virtually the same version of events that he had given the preceding day. This time, though, the defendant added that he believed that Spates must have been bleeding because Stout had blood on his hands after they left. The defendant also added that he had left his coat as a cushion for Spates’ head.

Crowe testified that his third conversation with defendant took place in the afternoon or evening of December 16, after the defendant had talked with Lowthian, the Michigan law enforcement officer. This third version of events differed substantially from the earlier two. The defendant said that Spates and Stout were arguing in Spates’ apartment. Stout pushed, shoved, and slapped Spates. The defendant believed that the argument “had something to do with them living together before.” The defendant opened his pocketknife and gave it to Stout, who waved it in front of Spates. Stout told Spates that he would have to pay them money for protection and that they were members of a criminal organization — this demand was just a joke, though, for they were not actually members of a criminal organization. Stout then punched Spates several times in the face, and the defendant punched Spates on the side of the head several times. Stout asked Spates for his social security check, but Spates denied having any money. The defendant, when asked by Crowe whether he was hitting Spates to get his money, said that he ‘ ‘was hitting the old man so that [Stout] would give up and leave.” The defendant took about $2 from Spates’ trousers; Spates was lying on his stomach, bleeding, but alive when they left. They did not remove Spates’ wallet, which contained $84, from his trousers.

Other evidence presented by the State showed that Spates received three public aid checks totaling about $900 on Friday, November 12, 1982. On that day, he rented the apartment where he was later found dead. On Sunday, November 14, Spates moved into the apartment. On Monday, November 15, Spates cashed a $570 public aid check, receiving $300 in traveler’s checks and the balance in cash. Later that day, Spates went to the apartment of the building manager and paid his rent and a loan. The defendant and Stout were there. Spates also bought a car from the manager for $75.

Anthony Johnson, a resident of a neighboring building, testified that on a Thursday evening in November 1982 he saw three persons in a fight in an apartment in the building where Spates lived. Later that evening, as Johnson walked by the building, he saw two persons standing and looking down at the floor. He identified one of the persons as Stout, but he could not identify the other. Johnson, who eventually received $1,000 for his information, said that when he first talked to the police about it he did not realize that he might receive a reward.

The defendant’s only witness was Jamie Hellige, 18 years old, who lived in the building where these events took place. Hellige knew both the defendant and Stout; they were in her apartment Monday, November 15, from 9 p.m. until about midnight. Hellige had first seen Spates that day. She also saw Spates outside the building two days later, on November 17, at about 10 p.m.

In sentencing the defendant the trial judge found that the convictions for involuntary manslaughter and simple battery were redundant and imposed only three terms of imprisonment — 27 years for murder, seven years for robbery, and five years for aggravated battery — and they were to run concurrently.

I

The defendant argues first that he was improperly questioned by police after asking to consult with a lawyer. The defendant believes that this violated his Federal constitutional privilege against self-incrimination. The trial court denied the suppression motion, finding that the defendant did not unequivocally request counsel.

Detective Charles Crowe of the Bloomington police department testified that he traveled to Bay City, Michigan, December 15, 1982, to talk to the defendant, who was being held in the county jail there. Crowe spoke to the defendant that day and about 10 a.m. the next day, December 16. During that second conversation, the defendant said that he would take a polygraph examination later that day. In the afternoon, about 3:15, Crowe saw the defendant outside a courtroom, where the defendant had gone for a hearing on some Michigan charges. Crowe testified:

“I asked him if he was ready to take the test, and he said he didn’t know because they didn’t appoint him an attorney. And I said, this morning you were all set to take the test, you didn’t mention anything about an attorney. The test is all set up. And then I asked him if he wanted to just go ahead and get it over with now, and he said yes.”

Crowe believed that the defendant was referring to the appointment of a lawyer for the Michigan charges that had required the defendant’s presence in that courtroom moments earlier. The defendant was taken to the headquarters of the Michigan State police, where the polygraph test was given. After that, Crowe took another written statement from the defendant. That statement was Crowe’s third conversation with the defendant, and it is the one that the State relies on here to sustain the convictions. Crowe testified that the defendant was given Miranda warnings before all these interrogations.

The defendant was the only other witness at the suppression hearing. He testified that on December 16, 1982, he was being held in the Bay City, Michigan, jail. About 3 o’clock that afternoon he attended a hearing on his motion for the appointment of counsel for a probation revocation case. One was going to be appointed. The defendant testified that as he left the courtroom, he saw Detective Crowe:

“A. Mr. Crowe asked me if I was ready to take a polygraph test.
Q. Did you make any response to that?
A. I said I wasn’t for sure because I didn’t have a lawyer.
Q. What, if anything, did Detective Crowe tell you at that point in time?
A. He said that I was all ready this morning and he asked me if I just didn’t want to go through with it then.
Q. What did you say?
A. I said, well he asked me if I was afraid to go through with it. I said no.”

Later that day, the defendant took the polygraph test and then in a third interrogation with Crowe in Michigan gave the statement that is the subject of the motion to suppress. Defendant testified that when he mentioned having a lawyer, Crowe “might have been a little upset.” On cross-examination, the defendant testified that he told Crowe, “I’m not for sure, I would like to have a lawyer.” The defendant acknowledged receiving and waiving Miranda rights preceding each separate interrogation.

The trial judge denied the suppression motion, concluding that the defendant’s reference to a lawyer “was not an unequivocal request for counsel.” The judge found substantial agreement between Crowe’s testimony and the defendant’s testimony on direct examination, and he based his decision on that, rather than on the statement related by the defendant in cross-examination — “I’m not for sure, I would like to have a lawyer.” Resolving evidentiary conflicts is within the trial court’s special province, and the trial judge’s decision here to accept as true the version related by Crowe and by the defendant on direct examination, rather than the version related by the defendant on cross-examination, was reasonable.

The trial judge distinguished the defendant’s remark here from the direct request for counsel that was made in Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. In Edwards the Supreme Court held that once an accused requests a lawyer, he cannot be questioned further without one, unless later on he himself initiates communication with the police. As a corollary to this Edwards also held that an accused’s response to further questioning does not by itself operate to waive an earlier request for counsel. In Edwards the defendant requested counsel while being questioned and the interrogation then stopped. The next day, the police wanted to question the defendant further, though he had not been afforded counsel and said at first that he did not want to talk. After being given Miranda warnings, the defendant said he would talk. The court held that the defendant’s request for counsel did not disappear overnight and that it was not waived by his answering questions the next day.

The source of the observation that an accused’s request for counsel need not be unequivocal to be effective is the statement in Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612, that if an accused “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.”

In People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537, the defendant, while being questioned by three police officers, said, “Maybe I need a lawyer,” or words to that effect when the topic of the interrogation changed from burglaries to the murder that the defendant was eventually convicted of. The questioning continued after the defendant’s remark. The supreme court held that the defendant’s remark concerning a lawyer was not a request for one. Discussing how precise or explicit a request for counsel must be, the court said:

“Miranda’s ‘in any manner’ language directs that an assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity. We do not believe, however, that the Supreme Court intended by this language that every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel.” (82 Ill. 2d 305, 311, 412 N.E.2d 537, 540.)

The court in Krueger also observed that none of the police officers construed the defendant’s remark as a request for counsel; the court said that the officers’ subjective beliefs were entitled to consideration.

The reference to a lawyer in this case seems to reflect at most the defendant’s indecision, assuming that he was referring to the charges here and not to the Michigan charges. Perhaps the defendant was not sure whether he should take the polygraph test without first speaking to a lawyer. The defendant realized that he did not have counsel, and for that reason he expressed some hesitation and uncertainty. This is less definite than the statement in Krueger, “Maybe I need a lawyer,” which was found not to be an invocation of the right to counsel. Also, Detective Crowe believed that the defendant was referring to the just-completed hearing on the Michigan charges rather than to the questioning for this prosecution. Crowe’s reminder to the defendant about his decision that morning to take the polygraph test may therefore be interpreted as an effort to focus the defendant’s attention on this case and away from the Michigan matters. We conclude that the trial judge did not err in denying the defendant’s motion to suppress his inculpatory statements.

II

The defendant argues next that the State failed to prove beyond a reasonable doubt that he or Stout — the jury was instructed on accountability — committed any acts that caused or contributed to Spates’ death. The defendant relies primarily on Dr. Lee’s uncertainty about the cause of Spates’ death.

In People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570, the defendant’s conviction for murder was reversed because of insufficient proof that the defendant had caused her infant child’s death. The State presented evidence that the child died from acute alcoholism, and the defendant admitted having fed the child a mixture of beer and water for more than three months, in addition to the baby’s normal diet. The court said:

“In every murder prosecution, proof of death and proof of criminal agency causing death are elements the State must prove beyond a reasonable doubt. (People v. Guthrie (1980), 85 Ill. App. 3d 831, 407 N.E.2d 593; People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459.) Although it is not necessary to prove that defendant’s act is the sole and immediate cause of death (Brown), the State must nonetheless prove that defendant’s act was beyond a reasonable doubt a contributing cause such that death did not result from a cause unconnected with defendant. (Brown, citing People v. Brown (1973), 9 Ill. App. 3d 730, 293 N.E.2d 1.) The means and manner may be inferred from the circumstances proved, but guilt must be so established as to exclude reasonable hypotheses of innocence. People v. Kinzell (1969), 106 Ill. App. 2d 349, 245 N.E.2d 319.” (111 Ill. App. 3d 733, 738, 444 N.E.2d 570, 574.)

In Kent the scientific testimony connecting the defendant’s acts to her child’s death was uncertain. All the experts — including the State’s — agreed that the autopsy findings were consistent with three other fatal ailments; a scientific test that would have been dispositive was not performed; the amount of alcohol fed to the child was not established; the small amount of alcohol found in the child’s muscle tissue was consistent with normal bodily decomposition; too few tissue samples were taken to preclude error or contamination. The appellate court found insufficient evidence of criminal agency and reversed the conviction.

Here the pathologist, Dr. Lee, testified that Spates’ death could have been caused by natural causes or could have been caused by the beating alleged. According to the defendant’s statement to Detective Crowe, Stout shoved and pushed Spates around the room, and then the defendant and Stout punched the man several times on the head, perhaps causing him to lose consciousness. Spates was bleeding. Blood stains were found on the walls and floor of the apartment. It appears that when Spates was found on November 21, 1982, he was wearing the clothes that he was wearing on November 15. The jury was not required to accept Hellige’s testimony that she saw Spates on Wednesday, November 17. Anthony Johnson believed that he saw a fight on a Thursday in November but was not certain. The evidence is sufficient to support the conclusion that the beating administered by the defendant and Stout caused or contributed to Spates’ death.

III

The defendant was charged and convicted under the theory of felony murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(3), based on the allegation that he was committing a forcible felony, robbery, while performing the acts that caused Spates’ death. The defendant argues that the State’s proof of his committing robbery is too weak to sustain the conviction; specifically, the defendant argues that the State failed to show that he and Stout were trying to rob Spates in striking him. The defendant argues that his taking money from Spates’ pocket may have been an afterthought and not connected to the earlier beating.

Robbery occurs when a person “takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a).) The defendant’s third statement to Detective Crowe supplies the necessary evidence that the beating was inflicted on Spates in an effort to rob him. According to the defendant, he handed Stout an open knife, who then threatened Spates with it while demanding money for protection. Later, Stout asked Spates for his social security or relief check. The defendant punched Spates several times and took money from Spates’ pocket at the conclusion of the beating. This is sufficient proof that Spates was beaten so that he could be robbed, and that constitutes a felony murder. See People v. Griffith (1979), 68 Ill. App. 3d 188, 385 N.E.2d 843 (victim shot by defendant or accomplice during robbery).

IV

The defendant argues last that if his conviction for murder is affirmed, the four other convictions — involuntary manslaughter, robbery, aggravated battery, and battery — must be vacated. The trial judge sentenced the defendant only on the murder, robbery, and aggravated battery convictions. The State agrees with the defendant that the convictions for involuntary manslaughter and robbery will have to be vacated if the murder conviction is affirmed, but argues that the aggravated battery conviction may remain. The State agrees that the conviction for simple battery also has to be vacated — it is redundant under the aggravated battery conviction.

Multiple convictions must be vacated in two instances: when they are based on the same physical act, or when one is an included offense of the other. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9.) The aggravating element in this battery was the defendant’s age, which was over 60. (Ill. Rev. Stat. 1981, eh. 38, par. 12 — 4(bX10).) As the State points out, the aggravated battery could not be an included offense of any of the others, for it contained one element — the victim’s age — that was not required in any of the other offenses.

Nor were the murder and aggravated battery necessarily based on the same act, for the defendant by his own admission to Detective Crowe hit Spates several times. The separate punches may therefore support the convictions for murder and aggravated battery. People v. Rathgeb (1983), 113 Ill. App. 3d 943, 447 N.E.2d 1351.

For the reasons given, we affirm the defendant’s convictions and sentences for murder and aggravated battery, vacate the conviction and sentence for robbery, and vacate the convictions for involuntary manslaughter and battery.

Affirmed in part, vacated in part.

MILLS, P.J., and WEBBER, J., concur.