text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RANDALL T. WOMBACHER et al., Defendants-Appellees.
    Third District
    Nos. 81-464, 81-463 cons.
    Opinion filed March 16, 1982.
    Edward Zukosky, State’s Attorney, of Wenona (John X. Breslin and Gary Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Kevin R. Galley, of Pace & McCuskey, of Lacón, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendants Randall Wombacher and Kenneth Cline were charged with unlawful possession of cannabis and filed motions to suppress evidence. After a hearing on the merits, the circuit court of Marshall County granted the motions, and the State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1)).

At approximately 1:15 a.m. on June 8, 1981, Officer Charles Lohr, and another officer in a second vehicle, stopped at an intersection near a service station. While at the intersection he noticed a vehicle parked at the station, but finding nothing unusual about its presence, he proceeded on his patrol. After passing the area, however, he looked in his rear view mirror and noticed an individual walking toward the parked automobile. As there had been a number of recent thefts from vending machines, he made a U-turn and returned to the station. The other officer continued on.

Defendants had been waiting in the parked vehicle for its owner to return with the soft drinks he had stopped to purchase. When he returned and began to drive out of the station, Officer Lohr pulled into the station with his overhead lights flashing. The driver then stopped, and both he and the officer got out of their automobiles. Officer Lohr recognized the driver and asked him what he was doing at the station. After he explained that he had stopped for some soft drinks, the officer walked over to the vehicle and shined his flashlight into its interior. Noticing defendants, one of whom he also recognized, and the presence of smoke, he drew nearer to the automobile to detect any odor which might have been emanating from within. At trial, Officer Lohr testified that, based upon his past experience in the performance of his duties, it was his belief the smoke had been produced by burning cannabis. While other officers arrived at the scene, none corroborated his opinion.

Defendants were then ordered out of the vehicle, and it was searched. Finding nothing therein, Officer Lohr ordered defendants to step up against the automobile to be searched. According to defendant Wombacher, the officer found two devices used to smoke cannabis. Officer Lohr testified that he also found a small amount of cannabis. At this time, both defendants were arrested and taken to the Marshall County jail. Once there, cannabis was discovered on the persons of both defendants.

Presented for our review is the issue of whether the uncorroborated testimony of a police officer that he smelled cannabis smoke is sufficient to establish probable cause to justify a warrantless search. This issue has been most recently addressed in People v. Argenian (1981), 97 Ill. App. 3d 592, 423 N.E.2d 289. In that case an officer had been dispatched to investigate a traffic accident. During his ensuing investigation, he became aware of an odor, which based upon his experience and police instruction he believed was produced by burning cannabis, emanating from the defendant’s automobile. The officer proceeded with a warrantless search of the vehicle and found a handgun in the glove compartment, but no cannabis. He subsequently determined that the odor came from a pipe containing regular pipe tobacco. In affirming the trial court’s suppression of the handgun, the court noted that the officer’s testimony was not corroborated in any way by any other testimony or evidence and explained:

“To hold otherwise would be to give an unlimited license to any police officer to search any and all vehicles merely on his uncorroborated testimony that he was an expert marijuana sniffer and that he smelled marijuana in the car. That testimony could conveniently be used to justify any search at any time whether or not there was marijuana on the premises and whether or not the officer was a qualified expert or was honestly mistaken or actually lying. More is required.” People v. Argenian (1981), 97 Ill. App. 3d 592, 594, 423 N.E.2d 289, 290.

The State contends Argenian should be confined to its facts and that it is not representative of the case law of this State. We disagree.

The former contention is implicitly premised on the fact the search in Argenian revealed no cannabis, while the search at bar did. It is axiomatic that the legality of a search is not determined by its results. People v. Peak (1963), 29 Ill. 2d 343, 194 N.E.2d 322.

The latter contention stems from a series of decisions beginning with People v. Erb (1970), 128 Ill. App. 2d 126, 261 N.E.2d 431. Erb involved an investigation of an automobile parked on a bridge in apparent violation of two traffic laws. When the officer asked its driver for identification, he smelled the odor of burning cannabis. He then placed the driver and a passenger under arrest, searched them, and discovered a pistol. The defendants had exited the vehicle shortly before the police arrived and had been standing on the shoulder of the road. One defendant was asked to empty his pockets, after which the officer reached into the defendant’s jacket pocket and discovered cannabis. The other defendant was seen tossing something toward a ditch which was subsequently found and identified as cannabis.

While Erb is cited by the State as authority for the proposition that the uncorroborated testimony of an officer that he smelled burning cannabis establishes probable cause justifying a warrantless search, the facts of that case do not frame the issue. While the court found the smell of contraband, under proper circumstances, is a basis for believing a crime is being committed, it carefully explained the reasons for the finding of probable cause:

“[I]t was reasonable for Deputy Neuman to meanwhile keep defendants, Erb and Weiss, under observation, as persons who had alighted from the car just previously and remained in the vicinity of it. While it is true that the finding of a weapon on the person of one of the other passengers justified a pat-down search of Weiss, Officer Ory was not confined herein to such a limited search because the smell of marijuana that he observed to emanate from the car and Weiss’s person afforded him sufficient probable cause to believe a crime had just been or was being committed. The officers were not obliged to assume that Weiss had emptied everything from his pockets and were reasonably justified in making the further search. Officer Neuman’s report to Ory as to defendant Erb’s suspicious movements and the finding of the packet near her, gave probable cause for her detention and search.” (People v. Erb (1970), 128 Ill. App. 2d 126, 134, 261 N.E.2d 431, 434-35.)

It can thus be seen that the “proper circumstances” in the case included the discovery of a weapon and the suspicious movements. We also note that two traffic violations had been committed.

Following Erb, cannabis was again held to have been discovered in a legal search in People v. Wolf (1973), 15 Ill. App. 3d 374, 304 N.E.2d 512, affd (1975), 60 Ill. 2d 230, 326 N.E.2d 766, cert, denied (1975), 423 U.S. 946, 46 L. Ed. 2d 280, 96 S. Ct. 361. In that case, an automobile was stopped as it had only a single license plate attached only by a wire. Thinking that this suggested the vehicle might have been stolen, the officer opened the driver’s door to check the vehicle identification number on the doorpost and smelled cannabis smoke. He then asked another officer to come to the vehicle to verify his opinion. In People v. Loe (1973), 16 Ill. App. 3d 291, 306 N.E.2d 368, the police officer stopped a vehicle with only one license plate and noticed a passenger reach down and duck from view. The driver left the vehicle in a hurried manner and the officer, after smelling the odor of cannabis, ordered the passenger out of the vehicle. When the door opened, a cannabis cigarette “roach” was in plain view on the floor. In People v. Smith (1978), 67 Ill. App. 3d 952, 385 N.E.2d 707, the defendant was observed speeding and then driving in an erratic manner. The officer followed his vehicle, and when defendant accelerated to 70 miles per hour in a 35-mile-per-hour zone, the officer stopped him. When he asked the name of a passenger, he smelled the odor of burned cannabis and noticed a glass containing liquid on the front seat. Upon smelling it, he determined it contained alcohol. In these cases, as in Erb itself, it can be seen that there are one or more elements in some fashion corroborating the testimony regarding the smell of burning or burned cannabis.

The only decisions which follow Erb and support the State’s position are People v. Laird (1973), 11 Ill. App. 3d 414, 296 N.E.2d 864, appeal denied (1973), 54 Ill. 2d 594, and People v. Tippit (1974), 17 Ill. App. 3d 163, 308 N.E.2d 15. In Laird, the police officer stopped the defendant for driving five miles an hour over the speed limit and noticed he had no lights on his rear license plate. The officer asked the defendant what he was hauling in his van, and the defendant opened its back door and displayed a homemade bed. The officer smelled cannabis and searched the defendant, his passenger, and the van. Cannabis was found behind the driver’s seat. While certain traffic violations, such as the erratic driving and very excessive speeding in Smith, might be considered corroborative evidence, the minor violations here demonstrate no realistic nexus with the use of cannabis. We believe the better view was expressed in People v. Lichtenheld (1976), 44 Ill. App. 3d 647, 358 N.E.2d 694, appeal denied (1977), 65 Ill. 2d 583. The defendant in that case was stopped for having one headlight out. While the court primarily rested its decision on the fact the officer smelled cannabis while inside the automobile without reason, it noted that “[tjraffic violations, particularly of the kind here involved which can be inadvertent and with no indication of an attempt to avoid identification do not in themselves suggest criminal activity” People v. Lichtenheld (1976), 44 Ill. App. 3d 647, 649, 358 N.E.2d 694, 695-96.

In Tippit, no vehicle was involved. The defendant and a companion were loitering in the hall of a high school and were brought by a police officer to the principal’s office. Another officer smelled cannabis, searched the companion, and found it. When the defendant did not stand to be searched, the officer reached to grab him and felt a bulge in his jacket. The bulge was from a handgun. While obviously inapposite to the case at bar and the other decisions cited herein, we cite the decision as the court upheld the search on the authority of Erb. Other nonvehicular searches based on the smell of cannabis have not been similarly sanctioned. Cf. People v. Spriggs (1976), 38 Ill. App. 3d 737, 348 N.E.2d 468 (noting Tippit’s reliance on, and distinguishing, Erb); People v. Creed (1975), 34 Ill. App. 3d 282, 339 N.E.2d 305 (distinguishing Erb).

In the case at bar, defendants were passengers in a parked automobile, the driver of which had stopped for some soft drinks. No traffic law had been violated. Officer Lohr investigated the situation as he saw the driver walking toward his vehicle and he was aware of a number of vending machine thefts. His investigation revealed no vending machine theft, and when he put on his overhead flashing lights, the driver of the pursued automobile immediately stopped in an orderly fashion. Why then did the officer walk over to the vehicle, examine its interior with a flashlight, and get as close as possible in order to smell? The driver, whom Officer Lohr knew, had already gotten out of the automobile and explained its presence. The answer is apparent from his testimony:

“Q. And what was the reason for searching them?
A. I had reason to believe they had cannabis on their person, contraband.
Q. And what was the reason that you — what was your reason for believing that Kenneth E. Cline had cannabis on his person?
A. I have known Kenneth for quite a while. I have had people tell me that — that he was a heavy user of drugs. When I came to the car and all that smoke was in there, I just figured he had some on him.
# 0 #
Q. So everything that you have heard about the two defendants, Mr. Cline and Mr. Wombacher, would be gross hearsay, what people have told you they’re into; is that correct?
A. Yes, that’s correct.
Q. And you recognized these two individuals when you first approached the vehicle?
A. I recognized one individual.
Q. So then the next thing you would have done is ordered them out of the vehicle; is that correct?
A. After I smelled — observed and smelled the smoke, asked them to leave the vehicle.”

We concur with the Argenian court that to hold that the uncorroborated testimony of a police officer that he smelled the odor of cannabis is sufficient to establish probable cause justifying a search would be to give an unlimited license to conduct searches. As was said in reference to a nonvehicular search, “The cases indicate, however, that there must be more than the mere alleged smell of marijuana.” (People v. Creed (1975), 34 Ill. App. 3d 282, 285, 339 N.E.2d 305, 308.) As was repeated in reference to the vehicular search in Argenian, “More is required.” People v. Argenian (1981), 97 Ill. App. 3d 592, 594, 423 N.E.2d 289, 290.

Accordingly, the suppression orders of the circuit court of Marshall County are affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    HUTCHCRAFT VAN SERVICE, INC., Petitioner-Appellee, v. THE CITY OF URBANA HUMAN RELATIONS COMMISSION et al., Respondents-Appellants.
    Fourth District
    No. 17418
    Opinion filed March 11, 1982.
    Rehearing denied April 13, 1982.

      Jack Waaler, Corporation Counsel, of Champaign, for appellants.
    Glenn A. Stanko, of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal raises a question which has not as yet been entirely resolved under the law of this State: To what extent, if any, may a home-rule unit legislate beyond that which has theretofore also been the object of statutory enactment by the legislature?

The factual matters are not in serious dispute. The City of Urbana (Urbana) purporting to act under its home-rule power, enacted an amended ordinance entitled “An Ordinance on Human Rights” (ordinance), the relevant portions of which are read as follows:

“ARTICLE 1. PURPOSE
Sec. 1. Intent
It is the intent of the City of Urbana, in adopting this ordinance, to secure an end, in the City of Urbana, to discrimination, including, but not limited to, discrimination by reason of race, color, creed, class, national origin, religion, sex, age, marital status, physical and mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source'of income. ° * *
ARTICLE 2. DEFINITIONS
0 # #
Sec. 3. Definitions
Discrimination. Any practice or act which is unlawfully based wholly or partially on the race, color, creed, class, national origin, religion, sex, age, marital status, physical or mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source of income of any individual.
# # #
Personal appearance. The outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristic such as weight, height, facial features, or other aspects of appearance. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed attire, if and when such requirement is uniformly applied for admittance to a public accommodation or to employees in a business establishment for a reasonable business purpose.
# O #
ARTICLE 4. DISCRIMINATION IN EMPLOYMENT
Sec. 5. Discrimination by an employer
It shall be an unlawful practice for an employer to do any of the following acts for a reason based wholly or partially on discrimination: to fail or refuse to hire * * * any person with respect to his/her application, hiring 0 * °.
# e e
ARTICLE 9. GENERAL PROVISIONS
# # #
Sec. 26. Exceptions
(a) Any practice or act of discrimination which would otherwise be prohibited by this Ordinance shall not be deemed unlawful if it can be established that such practice or act can be justified on the basis of being reasonably necessary to the normal operation of the business or enterprise. However, a ‘business necessity’ exception shall not be justified by the factors of increased cost to business, business efficiency, the comparative or stereotypical characteristics of one group as opposed to another or the preference of co-workers, employers’ customers or any other person.”

Horlbeck, one of the respondents, inquired about employment with the petitioner and was denied a job application. The evidence was that the refusal was based upon the length of Horlbeck’s hair. However, the evidence was in conflict as to the reason for petitioner’s objection. Horlbeck claimed discrimination because of personal appearance; petitioner’s witness claimed it was because of business image, safety, and customer preference. Petitioner runs a moving business and has been in business in Urbana for 34 years. It is affiliated with a national moving company and obtains about one-half of its business from Chanute Air Force Base.

Horlbeck filed a complaint for discrimination under the ordinance and after administrative proceedings and hearings before the City of Urbana Human Relations Commission, that body issued a cease-and-desist order requiring petitioner to cease from denying job applications based on length of hair and to furnish evidence of compliance within 30 days. Petitioner caused the administrative order to be reviewed by the circuit court of Champaign County by writ of certiorari. That court vacated and set aside the order on the basis that the employment discrimination provisions of the ordinance did not pertain to the government and affairs of the City of Urbana and were unconstitutional under Ill. Const. 1970, art. VII, §6(a). Urbana appeals that order.

The basic grant of home-rule power is found in that section which is read as follows:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection, of the public health, « ifety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).

Section 6(m) of article VII mandates that this home-rule power is to be liberally construed, and the supreme court has held that the basic grant in section 6(a) was purposely left without definition so that home-rule powers might be construed as being broad in nature. City of Urbana v. Houser (1977), 67 Ill. 2d 268, 367 N.E.2d 692.

To define the problem presented, we must examine several legislative and constitutional enactments and contrast them with the Urbana ordinance. An examination of the ordinance reveals that it facially prohibits discrimination on account of “race, color, creed, class, national origin, religion, sex, age, marital status, physical or mental handicap, personal appearance, sexual preference, family responsibilities, matriculation, political affiliation, prior arrest or conviction record or source of income.”

On the other hand the legislative and constitutional enactments prohibit discrimination on a lesser number of factors.

A brief examination of the pertinent language in the applicable statutes will be helpful. Prior to July 1, 1980, discrimination in employment was governed by the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.). On that date the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 etseq.) became effective and repealed FEPA. The purpose of IHRA was to draw together and consolidate in a single act all Illinois law relating to discrimination in employment, real estate transactions, access to financial credit, and availability of public accommodations. (Davis & Murphey, The Illinois Human Rights Act: Revision of Illinois Law Concerning Discrimination in Employment, 69 Ill. B.J. 218 (1980).) Section 9 — 102 of IHRA (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9 — 102) contains a saving clause as to pending matters. Therefore, even though the discrimination alleged in the instant case occurred prior to July 1, 1980, and the complaint was in process at that time, it will still be governed by the provisions of IHRA. A comparison of the language of the FEPA and IHRA is instructive.

Section 1 of FEPA states in part:

“[I]t is declared to be the public policy of this State that without in any way precluding any employer from selecting between persons of equal merit, ability, and capabilities, equal employment opportunity or apprenticeship opportunity without discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental handicap unrelated to ability, or unfavorable discharge from military service should be protected by State law.” Ill. Rev. Stat. 1979, ch. 48, par. 851.

Section 3(a) of FEPA defines an unfair employment practice to be:

“For any employer, because of the race, color, religion, sex, national origin, ancestry or physical or mental handicap unrelated to ability of an individual, or an unfavorable discharge from military service, to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment; or ° Ill. Rev. Stat. 1979, ch. 48, par. 853(a).

The IHRA largely mirrors the language of FEPA. Section 1 — 102(A) of IHRA states the public policy of the State to be:

“To secure for all individuals within Illinois the freedom from discrimination because of race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental handicap, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations.” Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 102(A).

Unlawful discrimination under IHRA is defined in section 1 — 103(Q) as:

“ ‘Unlawful discrimination’ means discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service as those terms are defined in this Section.” Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 103(Q).

Of equal, if not more, significance is section 17 of the Bill of Rights to the 1970 Illinois Constitution, which states:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” Ill. Const. 1970, art. I, §17.

To digest the foregoing, it will be observed that FEPA prohibited as factors in discrimination race, color, religion, sex, national origin, ancestry, physical or mental handicap, and unfavorable military discharge. IHRA retained all of these in haec verba and added age and marital status. The Rill of Rights is more restrictive, containing the same factors as FEPA minus physical or mental handicap and unfavorable military discharge. It is thus immediately apparent that the Urbana ordinance is much broader in scope and includes a variety of factors not found in either the statutes or the constitution, one of which, personal appearance, is the issue here. The problem posed, as first mentioned above, is whether in the face of an act by the legislature a home-rule unit may legislate further and different restrictions on the same subject matter.

The entire subject of home-rule has proved to be a fertile ground for controversy. One school of thought holds that home-rule power is almost without limitation and the resulting fragmentation is necessarily incident to it. (Compare statement of Chairman Parkhurst to the Constitutional Convention at 4 Proceedings 3044, quoted in Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 35, 324 N.E.2d 453.) On the other hand, it has been maintained that home-rule is not without limit and the only questions are how extensive the limitation should be and who should apply it, the legislature or the courts. (See Mr. Justice Underwood’s concurrence in County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 517, 389 N.E.2d 553.) If the legislature has taken specific action as provided in paragraphs (g), (h), (i), (j), or (k) of section 6 of article VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §§6(g), (h), (i), (j), and (k)), or as provided in section 7 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1979, ch. 1, par. 1106), no problem arises.

If, however, a statute does not contain specific provisions limiting or denying home-rule power, whether through oversight or otherwise, a court is then called upon to examine the entire statute and to divine the legislative intent. Ordinary rules of statutory interpretation then apply with all intendments and implications therefrom favoring home-rule.

The constitutional provision for home-rule quoted above (Ill. Const. 1970,. art. VII, §6(a)) is cast in terms of the government and affairs of the home-rule unit. If the subject matter can be found to be within the ambit of the government and affairs of the home-rule unit, then power exists within that unit to legislate on the matter. The method of arriving at that decision is not spelled out in detail, but we believe that it must begin with an examination under the rule of preemption.

Preemption is a judicially created doctrine and is more commonly found in decisions grappling with the problem of a Federal statute versus a State enactment. As applied to State action versus local action, preemption means that where the legislature has adopted a scheme for regulation of a given subject, local legislative control over such phases of the subject as are covered by State regulation ceases. Alta-Dena Dairy v. County of San Diego (1969), 271 Cal. App. 2d 66, 76 Cal. Rptr. 510.

Thus, if a critical examination of the statute reveals an intent by the legislature to preempt the subject in toto, it is no longer within the government and affairs of the home-rule unit. By the same token, if the examination reveals an intent to preempt only pro tanto, so much of the subject matter as is not covered by the State scheme of regulation remains within the government and affairs of the home-rule unit, and it may legislate concurrently with the State to that extent. The third alternative would be a situation in which there exists no State legislative action at all. In such a case, no question of preemption could arise, and the home-rule unit is free to exercise its plenary constitutional power to legislate.

The latter situation was presented in Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453. In that case the conflict arose over a State statute setting the minimum drinking age at 19, while the home-rule unit had set it at 21. No specific limitation was spelled out in the State statute, but the court found that a broad residuum of power over the liquor industry in local governments was found throughout the statute, and the court therefore concluded that concurrent powers rested with the legislature and with the local governments.

In City of Joliet the court made a significant observation that “we agree with plaintiff that exclusivity may be expressed in other ways, notably by enactment of a comprehensive regulatory scheme, or by establishment of a State agency for the purpose of a comprehensive regulatory scheme [citations].” 26 Ill. App. 3d 27, 32, 324 N.E.2d 453, 456.

In applying these principles to the instant case, we would be hard-put to envision a more comprehensive statutory scheme than that contained in the Illinois Human Rights Act. It would be equally difficult to say that the Human Rights Commission created by the statute is a powerless creature. It possesses the power to receive complaints and hold hearings, to compel the attendance of witnesses, and to request judicial enforcement of its orders. Its powers to grant relief and to impose penalties are lengthy and awesome.

The delegation of power, unlike City of Joliet, is limited. Section 7 — 108(A) of IHRA (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7 — 108(A)) permits local governments to create, if they wish, local commissions, but those local commissions are authorized only “to promote the purposes of this Act and to secure for all individuals within the jurisdiction of the politicial subdivision or subdivisions freedom from unlawful discrimination.” The purposes of the Act and the delineation of freedom from unlawful discrimination are clearly and precisely set forth in section 1 — 102(A) reproduced above. There is no general warrant to local governments to create commissions with powers and duties beyond the scope of section 1 — 102(A).

Respondents here seize upon the word “jurisdiction” in section 7 — 108, particularly in section 7 — 108(B) (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7 — 108(B)) referring to “concurrent jurisdiction” as an indication that the local governments had free rein. We do not agree. The concept of “jurisdiction” as here used means “venue.” Even assuming arguendo that section 7 — 108 is a full delegation of powers and duties, even the Human Rights Commission itself as created under the Act is bound by the scope of section 1 — 102(A).

We conclude that by enacting IHRA the legislature has preempted the subject of freedom from unlawful discrimination and that insofar as the Urbana ordinance attempts a broader scope than that set forth in section 1 — 102(A) of IHRA, it is not permissible. Accordingly, the order of the circuit court of Champaign County is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE ALLOY

text:
    LOUIS FASSOLA, Plaintiff-Appellee, v. MONTGOMERY WARD INSURANCE COMPANY, Defendant-Appellant.
    Third District
    No. 81-496
    Opinion filed March 16, 1982.

      Howard T. Brinton and Marcia B. Orr, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.
    Roger D. Rickmon and Douglas L. Ziech, both of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by defendant insurer Montgomery Ward Insurance Company (hereinafter Insurer) from a judgment entered against it in a small claims action arising out of its automobile insurance policy issued to plaintiff Louis Fassola. Insurer raises an issue with respect to the Department of Insurance Regulations, specifically on the proper method for valuation of older automobiles (those no longer listed in regularly used valuation source books) when it is determined that there is a total loss. The Insurer contends that the trial court erred in concluding that their method of valuation was improper. It also raises an issue as to the correctness of the court’s award of costs and attorney fees to plaintiff Fassola, based upon a finding of vexatious delay on the part of the Insurer. Ill. Rev. Stat. 1979, ch. 73, par. 767.

The facts in the record indicate that on October 15, 1980, plaintiff Louis Fassola, driving his 1973 Dodge Dart, was struck by a car driven by Kim Hrusosky. Both Fassola and Hrusosky were insured by Montgomery Ward Insurance Company. Fassola was covered under a family car policy which was in effect at the time of the accident. Fassola testified at trial concerning the condition of his automobile prior to the accident. He testified that his Dodge Dart was very reliable and that he drove it to work everyday. He stated that he had regular twice-a-year tuneups for it and had recently had a new water pump installed in it. It started regularly in the winter and required little, other than regular maintenance. It fully satisfied his work-related transportation needs. Fassola also indicated that prior to the accident the car had a crease in the left door, which did not hinder its functioning, nor allow weather in. The car also had some rust spots on the body. The record is clear that his 1973 Dodge Dart provided him with reliable and economical transportation and that he valued it for those reasons, not for its appearance.

In the accident, Fassola’s Dodge Dart sustained considerable front end damage, including damage to the grille, radiator, fan, headlights, and front fenders. Insurance Adjuster John Ouradnik, who examined the damaged vehicle on behalf of the Insurer, testified that he determined that the cost for repairing the accident damage would be $771. Ouradnik also testified at trial that he conducted a market survey of the value of a ’73 Dodge Dart and determined from it that the average value of such an auto was approximately $700. Because the car was no longer listed in the “red book” (the regularly used valuation source book), the market survey was required in this case. In describing how he undertook the survey, Mr. Ouradnik stated:

“Market survey, contact dealers, used car lots, describe the car to them, see what they have in like kind and quality, similar to the condition of this vehicle.”

Based upon the assessment of the costs of repair ($771) and the market value of the auto ($700), it was determined to be a total loss.

Illinois Department of Insurance Regulations set forth the procedure for adjusting and settling claims for total losses. Rule 9.19, §6B9 provides that an insurer must base the settlement on the “basis of actual cash value, or replacement with other of like kind and quality.” Subsection (ii) (a) of Rule 9.19, §6B9, states:

“(ii) THE COMPANY MAY SELECT A CASH SETTLEMENT (a) A cash settlement must be based upon the retail value of the automobile as published in a generally recognized source that is uniformly and regularly used by the company. Any deviation from this procedure must be supported by documentation that gives detailed information about the automobile’s condition. Any deduction from retail valuations must be measurable, discernible, itemized and specified concerning dollar amount, and they shall be appropriate in amount.
If the retail value of the specific automobile is not published in a generally recognized source, which is used uniformly and regularly by the company, the company must secure at least two written retail value dealer quotations and base the settlement upon them. Any deviation from this practice must be supported by documentation giving particular information about the automobile’s condition. The source of the dealer quotations must be maintained in the claim file * *

In the instant case, the Insurer had conducted a market survey of ’73 Dodge Darts in similar condition to Mr. Fassola’s and had found the retail value to be $700. However, that was not the value placed by the Insurer on Fassola’s Dodge Dart. To arrive at the Insurer’s “retail value” for purposes of settlement, Mr. Ouradnik took another step. From the $700 figure obtained as retail value from the market survey, he then subtracted the costs which would have had to have been incurred in order to fix the old damage, that is, the damage existing prior to the accident. He testified that this was his general procedure in arriving at market value of an older model auto prior to an accident. He then testified that to fix the crease in the door, the rust spots, and the bent bumper it would have cost $548.12. Thus, Ouradnik, using this method of valuation, determined that Mr. Fassola’s reliable and well-maintained Dodge Dart was worth a mere $151.88. Subsequently, based upon this figure, Montgomery Ward offered Mr. Fassola $250 in settlement. The offer was rejected, and Mr. Fassola indicated that he would retain counsel to get a fair settlement.

Mr. Fassola’s attorney then contacted the Insurer and demanded $450 plus costs. The Insurer explained how the $250 figure was arrived at by them and informed counsel for Mr. Fassola that the company’s offer was firm. A letter was also written to Mr. Fassola by a company representative, one Maureen McGrath, which also explained to him the $250 offer and the procedure in arriving at that figure. We quote, in relevant part, from the letter, dated October 30, 1980:

“Upon determining your car to be a total loss I performed a market survey for the value of your car. I received quotes from three separate dealers and the average of their quotes was $700.
When our appraiser inspected your vehicle, he found that there was old damage in the amount of $548 on your car. The figures I had obtained in my market survey were for a 1973 Dodge Dart in average to good condition. Thus, we had to deduct the amount of old damage from our survey figure.
We are offering you $250 in full and final settlement of your collision claim. * ° (Emphasis added.)

Thereafter, plaintiff, by his counsel, filed the instant small claims action. In the action he requested $700 damages under the contract of insurance, plus expenses for storage, and the costs and fees of the suit, based upon the Insurer’s unreasonable delay in settling the claim.

Faced with the suit, the Insurer then contacted plaintiff’s attorney on November 13, 1980, and was told by counsel that Mr. Fassola was adamant about receiving $450 plus the $62 storage costs. Subsequent thereto, and prior to March 4, 1981, Mr. Fassola raised his settlement demand to $750. On March 18, 1981, Fassola’s attorney informed the Insurer that he believed settlement could be made for $514. The Insurer agreed to settle at that amount, but Mr. Fassola did not. He refused the offer of $514 and stated he wanted $750 or his day in court.

On May 15, 1981, Fassola’s attorney contacted the Insurer to offer a settlement of $587.32. No settlement was reached. The company continued to offer $514. Mr. Fassola continued to refuse that offer. The case then went to trial, during which the above stated evidence was presented. The trial court heard it, including considerable controverted evidence with regard to the shifting settlement negotiations. The court entered judgment for $500 to cover the damage to the auto, and, in addition, it awarded plaintiff Fassola $250 in attorney fees and costs, based upon the Insurer’s vexatious delay in settlement. From the damage award and the award of fees and costs the Insurer now appeals.

The first issue raised concerns the Insurer’s method for valuing the Fassola auto. It argues that the court erred in finding that the company had assigned an improper total loss value for the ’73 Dodge Dart. The Insurer argues that Mr. Ouradnik’s method of valuation, which resulted in the car’s value being put at $151.88, was the proper and correct method and in compliance with the insurance regulations which apply. We disagree completely with the Insurer and agree with the trial court.

The applicable insurance regulation, specifying procedures for cash settlements in the event of a total loss, has been set forth, in relevant part, previously in this opinion. It requires the Insurer, in situations where no “red book” value is set forth because the auto is an older model, to obtain dealer quotations as to retail value and to base settlement upon those quotations. This is the so-called “market survey” approach to valuation. The regulation also requires documentation of the dealer quotations and documentation of any deviation from the dealer quotations. The company argues that its method, obtaining a retail value from the market survey and then subtracting the costs for the repair of old damage, was proper under the regulation and that it accurately gave the retail value of the Fassola auto at $151.88. In support thereof, on the factual level, they assert that Mr. Ouradnik’s valuation arrived at from the market survey, being $700, was based upon a ’73 Dodge Dart without any old damage. They point to Ouradnik’s testimony in the record that a ’73 Dodge Dart, without old damage, would be worth $700. This testimony as to the nature of the market survey is contradicted, however, by defendant Insurer’s own evidence in the record. Ouradnik himself, in describing the method he used, stated that he contacted other dealers and used car lots, described the car to them, inquired as to what they had “in like kind and quality, similar to the condition of this vehicle.” Thus, at one point in his testimony Ouradnik states that the market survey was on a car in similar condition to plaintiff’s auto, which would presumably include the old damage, while at another point in testimony he asserts that it was based upon an undamaged ’73 Dodge Dart. The latter assertion, that the survey was based upon an undamaged auto, is further contradicted when Maureen McGrath’s letter, already set forth, is examined. In that letter, McGrath states on two occasions that it was she who performed the market survey and that the survey was based on a ’73 Dodge Dart in average to good condition. She does not indicate that the market survey was based on a completely undamaged Dodge Dart, as the Insurer now asserts. Rather, she states that it was based upon a Dodge Dart in average to good condition.

The facts in the record as to the condition of Mr. Fassola’s ’73 Dodge Dart indicate that prior to the accident it was in average to good condition for a ’73 Dodge Dart. As to essential, transportation related matters, the auto was in excellent shape, according to the facts in the record. Mr. Fassola testified to his regular use of the auto and to its reliability. He saw to it that it received regular maintenance and any necessary repairs. In short, it was a reliable work-car. The record does indicate that the auto had some relatively minor body damage (rust spots and dents), but the evidence indicates that none of the pre-accident damage affected or impaired the auto’s essential functioning. Even considering as significant the cosmetic problems, this ’73 Dodge Dart was in average to good condition for a ’73 Dodge Dart. Some deterioration, especially with respect to the body, is the rule rather than the exception with older model automobiles.

It can be seen from a review of the record that the Insurer’s own evidence, found in Ouradnik’s testimony and in McGrath’s letter, contradicts the claim that the market survey was based upon an auto “without old damage,” as Ouradnik later would claim. The record supports a conclusion that the Insurer’s market survey was based upon quotations obtained on a ’73 Dodge Dart, in average to good condition, similar to that of Fassola’s ’73 Dodge Dart. Under the circumstances, having obtained a retail value ($700) from the market survey, it was completely improper for the Insurer to then reduce that amount by an amount equal to the amount it would have cost to repair the old body damage. In effect, as it had to know, the Insurer was reducing the value of the auto twice, once implicitly through the market survey and then again with the subtraction of repair costs. In addition, we find support in the record for the trial court’s conclusion that the Insurer deliberately used this improper and erroneous standard of measuring retail value.

Some further comment is necessary on the proper method for valuation of total losses, where the subject auto is not listed in a generally recognized source. The inequity of the Insurer’s market survey approach herein is amply demonstrated by the facts. Fassola had an older model auto which was well maintained and which was providing reliable transportation for him. In its essential functioning, it was in excellent shape. In its nonessential aspects, that is its cosmetic appearance, it had the type of damage which might be expected on an older model auto. It had some scrapes, dents and some rust spots. The market value of such older models is not primarily based upon their cosmetic appearance. Such autos are valued, as was this Dart by Mr. Fassola, for their reliability and low cost maintenance. Quite obviously in this case, Mr. Fassola did not care about the minor body damage, nor was he contemplating having it repaired. Yet, the Insurer herein, through use of its market survey approach, found the retail value of Fassola’s reliable 1973 Dodge Dart to be $151!

As was noted by the court in Crandall v. Country Mutual Insurance Co. (1980), 81 Ill. App. 3d 140, 143, 400 N.E.2d 1100, where a value is to be found in a recognized source book (NADA book price, e.g.), the value there found represents a base, or starting, value for an average automobile. The same is true when the market survey approach, utilizing dealer quotations, is used. Dealer quotations on older model automobiles will usually be based on comparable older models in average condition, i.e., average condition for an older model. And, as already noted, average condition for an older model auto is often with a few dents and some rust. We can take judicial notice of the fact that the passage of time inevitably leaves its mark upon all physical objects, and that rust and minor dents are frequently the marks of time on older autos. If anyone knows this truth, it is the dealer in used cars. Dealers also know that most older model autos are valued for their reliability, not their appearance. Thus, absent direct evidence in the written dealer quotations that an estimate is based upon a completely undamaged, rust-free model, it will be presumed that such estimates are based upon a similar model in average condition for such older automobiles. Unless the insured’s auto is completely undamaged, the Insurer ought to specify the pre-accident condition of the auto (both its pros and cons), so that the dealer may note how, if at all, such existing condition affects his estimate. In this way, deviations from the average value will be documented by the persons supplying the valuation figure, not by the Insurer.

Such an approach is based upon the practicalities and realities of the market in older model automobiles. It will prevent insurers from obtaining vague and questionably based market valuations from dealers and then subtracting the cost to repair existing damage which had little, or no effect upon the market valuation. The absurdity of the Insurer’s approach can be seen if one posits further existing dents in Mr. Fassola’s Dart’s passenger-side door and in the trunk hood. The Insurer’s actual evidence indicated that the cost to repair old damage (rust, crease in door, and bent bumper) would have been $548. If we would add the cost of the hypothetical damage to the other door and the trunk hood, there is little doubt that the total to repair all existing damage would have been in excess of $700, that is, in excess of the market value obtained by the Insurer. So that, even though all the pre-existing damage did not affect the essential functioning of the auto, and even though the auto provided reliable transportation to Mr. Fassola, under the Insurer’s approach, the auto would have no value whatsoever, because the costs to repair existing body damage would exceed market value of the auto. Such an approach is unacceptable.

The approach which we herein adopt is fair and based upon the realities of the situation. The market value quotations received by the Insurers from dealers must be written, as the insurance regulations require, and they must indicate what information was given to the dealer about the pre-accident condition of the comparison auto, and how such pre-accident condition affects the dealer’s assessment of the retail value of the auto. Documentation is the requirement of the insurance regulations, and documentation, specific and in the record, is what is required when assessing the retail value of older model autos which are determined to be a total loss.

In the instant case, the Insurer used an improper and inequitable method for determining the retail value of Mr. Fassola’s Dodge Dart. We find no error in the trial court’s conclusion to that effect. Nor, as noted, do we find error in the court’s conclusion, based upon the record, that the Insurer deliberately used an improper method to determine market value.

We next turn to the court’s finding of vexatious delay, which finding was the basis for his award of fees and costs to the plaintiff Fassola. (Ill. Rev. Stat. 1979, ch. 73, par. 767.) The question of vexatious delay is a factual one, which must be based upon an assessment of the totality of the circumstances, taken in broad focus. (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124, 371 N.E.2d 1147.) A trial court’s determination on the issue will not be disturbed unless an abuse of discretion is demonstrated on the record. (56 Ill. App. 3d 122, 124.) We conclude that the trial court’s finding of vexatious delay is supported in the evidence. There is evidence, already discussed, to indicate that Montgomery Ward obtained its market value based upon a Dodge Dart in similar condition to Mr. Fassola’s. That was indicated by Ouradnik at one point in his testimony and by McGrath’s letter to Fassola. Yet, rather than make an offer based upon that figure, the Insurer further deducted the full costs for repairing nonessential, pre-existing body damage to the auto. The evidence supports the inference that the Insurer was intentionally and deliberately attempting to prevent Mr. Fassola, its insured, from obtaining the rightful value of his auto. The evidence supports the court’s conclusion that the Insurer deliberately used the wrong standard of damages when making its initial offer. Then, it continued to stand by the improper and ludicrously low offer until it had forced Mr. Fassola to retain counsel and file suit. Only after suit was filed did the Insurer respond with a reasonable offer. Regardless of its later attempts to effect a reasonable settlement, the record in the instant case, considering the totality of the circumstances, supports a finding of vexatious delay. Based upon the facts in the record, the court did not err in assessing fees and costs against the Insurer.

The decision of the Circuit Court of Will County is affirmed in all respects.

Affirmed.

BARRY, P. J„ and HEIPLE, J„ concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUS HARRIS, Defendant-Appellant.
    Second District
    No. 80-639
    Opinion filed March 12, 1982.

      Mary Robinson and Joe Tiebloom, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Robert J. Biderman and Phyllis J. Perko, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Gus Harris, was charged in Lake County on April 29, 1980, with the offenses of armed robbery, armed violence and aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(a), 33A — 2, 12 — 4(b)(1).) The offenses were charged as the result of an occurrence during the early morning hours of April 13, 1980, in Waukegan. Although the facts are in dispute, the complainant, Bertoldo Figueroa, utilizing a court-appointed interpreter, testified essentially that he and his wife played Bingo on the evening of April 12. Afterward, he parted with his homeward-bound wife, and went to a bar, Shorty’s Tap. He testified he was asked by a woman there, Sharlotte Stinnette, for a ride home at about 2 a.m., and he drove her to a bar near her apartment. That bar was closed, so he walked her to the area just outside her apartment, where he was allegedly struck in the face by a knife-wielding man, later identified as the defendant. By his account, he was then forced to a second floor apartment of the building where he was several times hit again, twice with the knife, which caused cuts on his hands. Upon demand, he handed the man his wallet and two rings; the man turned these items over to Stinnette. The amount of money contained in the wallet was inconsistently reported at different times by the complainant to be either $30 or $40, or $80. The complainant’s wallet was returned to him and he was allowed to wash his hands in the kitchen sink. He then ran out of the apartment to his car parked nearby. In the haste of departure, the car became hung up on the sidewalk, unable to be moved, and the complainant fled down the street on foot where he was observed, stopped, and questioned by a police officer. Figueroa relocated the apartment, and Stinnette answered the door after police knocked several times and announced their presence. She was arrested after Figueroa, approaching the apartment door in the company of police, sighted her and lunged at her. In an adjoining room, Ken Anderson, the defendant’s cousin and Stinnette’s boy friend, was rousted out of bed by the police, but Figueroa shook his head, indicating Anderson was not the man who used the knife. Further search of the apartment ultimately led police through a slightly ajar back door to the basement where the defendant was found.

He had been discovered sitting against a wall in the reportedly 40-degree basement of the building clad only in pajama bottoms and within arm’s reach of the basement entrance doorway where the complainant’s two rings and $15 in cash were found.

Although Figueroa denied such knowledge, Stinnette was reputedly a prostitute. Apparently unknown to him, Figueroa’s wife had not stayed at home, but had observed him leave Shorty’s Tap in Stinnette’s company. Declared by the court as a hostile witness, Figueroa’s wife testified that he had related to her that he was jumped by two men in the parking lot of the Rock Tavern, which was the bar near Stinnette’s apartment where Figueroa had parked. Stinnette did not testify at trial.

On the night in question, the defendant testified he had misplaced his keys to Stinnette’s apartment, where he lived with her and Anderson, and was asleep on the stairs waiting for Stinnette to return home. According to the defendant’s testimony, Anderson had not answered his knocks on the door because he was asleep in the apartment. When Stinnette arrived at the apartment accompanied by Figueroa, the defendant trailed them inside, whereupon Figueroa slammed the door, hitting him in the face. There was testimony the defendant was recovering from serious injury to his face after being hit with a baseball bat by a person against whom he was going to be a State’s witness. The defendant confronted Figueroa for an explanation of his conduct, and Figueroa, shouting something in Spanish “came at me [the defendant] and I hit him.” Stinnette then allegedly handed the defendant a knife, and Figueroa cut his hands trying to grab the knife held by the defendant. Defendant’s demand that Figueroa leave the apartment was responded to with a loud flurry of Spanish. When the defendant’s demand was repeated, Figueroa relinquished his rings and wallet to Stinnette, who immediately returned the wallet and washed Figueroa’s hands in the kitchen sink and then bound the cuts with cloth. Figueroa then ran out of the apartment. Following Figueroa’s exit, Stinnette told the defendant to go downstairs, gave him $15, which she produced from under her blouse, and Figueroa’s two rings. Defendant testified it was usual for him to go downstairs when Sharlotte was expecting “company,” and that he had been asking her for some money all week.

The defendant’s pretrial motion to quash arrest and suppress evidence was denied after a hearing. Two motions for mistrial were also denied. The jury found the defendant guilty of aggravated battery and reckless conduct, and not guilty of armed violence and armed robbery. The defendant’s motion for a new trial was denied and the court sentenced him to 30 months’ probation, the first 113 days to be served in the county jail and credit for that amount of time already served was applied to his sentence.

Three issues are now raised on appeal: (1) Whether the trial court erred in denying defendant’s motion for mistrial upon learning from the translator that she had improperly paraphrased the testimony of the complainant-witness thereby denying the defendant his right of confrontation; (2) Whether the verdicts returned by the jury were legally inconsistent; and (3) Whether the trial court erred in refusing to suppress the physical evidence.

The defendant first contends his right to confrontation was denied by virtue of the translator’s confessed paraphrasing of questions and answers during the complainant’s testimony. The record does not clearly reflect, nor has it been made apparent to this court, how many or which specific questions and/or answers were paraphrased. The State counters that the complainant’s testimony, as translated, was intelligible, and that the defendant at no time during Figueroa’s testimony objected to the competency of the interpreter’s performance. The translator employed here was a Spanish-speaking court reporter.

The use of an interpreter during trial is a matter within the discretion of the trial court. (People v. Soldat (1965), 32 Ill. 2d 478.) The resolution of any question in this regard is whether the testimony presented through the interpreter is understandable, comprehensible, and intelligible; and, if it was not, whether such lack of such intelligibility was brought about by an ineffective and incompetent interpreter. (People v. Niebes (1979), 69 Ill. App. 3d 381.) Niebes cited to People v. Starling (1974), 21 Ill. App. 3d 217 for that proposition. The defendant finds Starling factually similar, and supportive of his argument; the State contends Starling is inapposite.

In Starling, the court found the defendant had been denied his right of confrontation due to the ineffective and incompetent performance of the court-appointed interpreter. In that case, the court sustained numerous defense objections to conversations being held between the witness and the interpreter and duly admonished the interpreter each time. Additionally, the witness’ testimony as translated was unintelligible at various points throughout that trial, and even the State complained at least once about the interpreter’s performance. Thus, that court found the selection of the interpreter constituted an abuse of discretion since it resulted in deprivation of the defendant’s basic right of confrontation.

The defendant argues that even though Figueroa’s testimony was understandable and intelligible for the most part as translated by the interpreter, her self-admitted paraphrasing of some of the questions and answers resulted in presentation to the jury of her version of the occurrence rather than the complainant’s. The central issue appears to us to be whether the purportedly clarifying paraphrasing indulged in by the interpreter prejudiced the defendant’s right to confrontation of the witnesses against him.

After reviewing the record, it is our opinion that the defendant is estopped from raising this issue since he invited or, at least, acquiesced in the error of which he now complains. As pointed out by the State, the defendant did not object to the interpreter’s performance at any time during Figueroa’s testimony. There was no hint the defendant was dissatisfied with, or could not understand, the testimony being translated back: Contrary to the assertion in his brief that the error could not have been discovered prior to the interpreter’s admission in chambers (whereupon he timely requested a mistrial), we believe it would have been obvious to even non-Spanish-speaking persons that the interpreter and Figueroa were engaged in “conversation back and forth” rather than question-answer dialogue. Counsel failed to object to the excess questions and answers between witness and interpreter, and failed to timely request an admonishment from the court on this obviously improper practice.

Additionally, in our view, the record reveals the interpreter was induced to paraphrase by defense counsel’s own posturing of his cross-examination. A significant number of defense counsel’s questions were posed in the third person so as to actually cast the interpreter in the role of questioner. For example, rather than addressing the witness, defense counsel would direct the interpreter thusly:

“Q. [Mr. Stone]: Ask Mr. Figueroa if he didn’t say he was first jumped and held at knife point in the parking lot at the Rock Tavern?
A. [Interpreter]: No.
Q. He denies he ever said that?
A. No, the truth is as I am telling you, as I have said.
Q. And ask Mr. Figueroa if he didn’t tell the third story that he was jumped by two men in the parking lot.
A. No.
Q. And doesn’t he recall telling that story to Mr. Duffy?
» # O
Q. [Mr. Stone]: Isn’t it true Mr. Figueroa —
A. [Interpreter]: No, it is not true.
Q. Isn’t it true —
A. No, that’s not true.
Q. I am asking you another question. Isn’t it true that he is now saying that a black man, one black man jumped out of the bushes in front of 511 Genesee?
# * #
Q. [Mr. Stone]: Ask Mr. Figueroa if as he walked up the stairs he didn’t see Mr. Harris sitting in the hallway next to the door to Miss Stinnette’s apartment.
A. [Interpreter]: He is the one that came out to hit me.
Q. And did — he did not see him sitting on the staircase asleep?
A. There was no one sitting on the stairs.
Q. And he did not enter the apartment with Miss Stinnette and slam the door in Mr. Harris’ face?
THE INTERPRETER: Wait, say it again.
Q. Did he enter the apartment with Miss Stinnette and slam the apartment door in Mr. Harris’ face?
A. I didn’t do any of that.”

The interpreter would also occasionally lapse into third-person responses:

“Q. [Mr. Stone]: However, on the night of April 13th, didn’t you tell the police that eighty dollars was taken?
THE INTERPRETER: He said yes, more or less forty or eighty, around there.
Q. Ask him if it was forty or eighty that was taken from him.”

Certainly the form of many of counsel’s questions was improper and shows the interpreter was afforded a margin of discretion in phrasing the questions to the witness and in reporting back his responses. Defense counsel must certainly have been aware of the crucial interplay of precision and nuance in effective cross-examination. Necessarily, then, he must also have been aware that his questions would first lose something in the translation from English to Spanish and vice versa, and then lose something again by virtue of the discretion afforded the interpreter in formulating the exact questions to be asked. Under these circumstances, we conclude the defendant precipitated the error he now says requires reversal. It is axiomatic that an accused cannot complain of error acquiesced in or invited by him. (People v. Riley (1964), 31 Ill. 2d 490.) Consequently, the trial court’s denial of the defendant’s motion for mistrial on this basis was not error.

Defendant next urges reversal on the basis that the jury’s verdicts finding him guilty of aggravated battery and not guilty of armed violence are legally inconsistent because both verdicts were based on the same elements and arose out of the same facts. Further, he contends the jury’s verdicts finding him guilty of aggravated battery and reckless conduct, as the result of the same conduct, are legally inconsistent and void because each offense requires a different mental state and the two mental states cannot co-exist. The defendant did not specifically raise these issues in his post-trial motion; nevertheless we shall consider the merits pursuant to Supreme Court Rule 615(a). Ill. Rev. Stat. 1979, ch. 110A, par. 615(a); see also People v. Roman (1981), 98 Ill. App. 3d 703, 706.

Before finding the defendant guilty of aggravated battery and not guilty of armed violence, the jury had been instructed:

“A person commits the crime of aggravated battery, who, in committing a battery uses a deadly weapon.” (Illinois Pattern Jury Instructions, Criminal, No. 11.09 (2d ed. 1968).)

Further, the jury had been instructed that:

“A person commits the crime of armed violence when, while armed with a dangerous weapon, he commits any felony as defined by Illinois law.
The offense of Aggravated Battery is a felony as defined by Illinois law.” No IPI Criminal instruction existed at that time; the instruction given was based on section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2).

Thus, defendant claims he was both acquitted and convicted on the same elements and, he contends, the verdicts are therefore legally inconsistent, and a reasonable doubt of his guilt has been raised which requires reversal. In support of this claim, defendant takes the position that it is uncertain whether People v. Dawson (1975), 60 Ill. 2d 278, overrules People v. Hairston (1970), 46 Ill. 2d 348. However, a recent Illinois case positively construes Dawson as implicitly having overruled Hairston, and we believe that case, People v. Johnson (1980), 87 Ill. App. 3d 306, is dispositive of this issue.

In Johnson, the defendant was likewise convicted of aggravated battery and acquitted of armed violence, and contended reversal due to the legal inconsistency of the verdicts was required. The Johnson court disagreed, stating:

“We believe that Dawson did implicitly overrule Hairston on the necessity for legal consistent verdicts * * *.
«
It appears that the legislature intended, in passing the armed violence statute, to create an additional offense for which a defendant could be charged and convicted when he committed any felony while armed with a specific type of dangerous weapon. Therefore, armed violence and aggravated battery are two separate offenses. Thus, the verdicts here are legally consistent, if not logically so. [Citation.]
But even assuming the verdicts were legally inconsistent, we have held that Illinois does not require legal or logical consistency in verdicts. And that such inconsistency, even if it exists, does not require reversal of defendant’s conviction. [Citation.] As our supreme court stated in Dawson:
‘° ° ° [Allowing inconsistent verdicts in criminal trials runs the risk that an occasional conviction may have been the result of compromise. But the advantage of leaving the jury free to exercise its historic power of lenity has been correctly thought to outweigh that danger. [Citations.]’ 60 Ill. 2d 278, 281, 326 N.E.2d 755, 757.” (87 Ill. App. 3d 306, 309-10.)

See also People v. Depper (1980), 89 Ill. App. 3d 135, 138; People v. Jimerson (1979), 69 Ill. App. 3d 403, 409-11; People v. Murray (1975), 34 Ill. App. 3d 521, 537.

Consequently, even if the jury’s verdicts on aggravated battery and armed violence were legally inconsistent, reversal would not be warranted since such inconsistency may simply have been the result of the jury’s free exercise of its “historic power of lenity.”

With regard to the defendant’s convictions for aggravated battery and reckless conduct, he argues the inconsistent verdicts rule of Dawson is inapplicable, since there is no question of the jury finding the defendant simultaneously guilty and not guilty of offenses which are comprised of the same elements. Clearly, convictions for aggravated battery and reckless conduct require proof of different degrees of culpability, and reckless conduct can be a lesser included offense of aggravated battery. (People v. Perry (1974), 19 Ill. App. 3d 254.) It is true, as defendant argues, that the same act toward the same individual cannot be committed with two different mental states at the same time. (See People v. Gross (1977), 52 Ill. App. 3d 765, 771-73.) However, as pointed out by the State, a defendant can be guilty of both aggravated battery and reckless conduct toward the same individual if there are distinguishable variations in conduct. In support, the State cites People v. Roman (1981), 98 Ill. App. 3d 703, wherein the court found that the verdicts against the defendant for aggravated battery and reckless conduct were not inconsistent, since the jury could rationally have concluded that the defendant had different states of mind when he fired several shots at the victim.

Assuming, arguendo, as urged by the defendant, that our analysis of the issue should be limited to the cuts on Figueroa’s hands as specified in the information charging aggravated battery, we believe the jury in the instant case could likewise have rationally concluded that the defendant had different states of mind when the wounds were inflicted on the victim’s hands. The jury could have believed that the defendant knowingly slashed out at Figueroa in his anger at having the door slammed in his face, and that the other cuts on Figueroa’s hands were the result of the ensuing struggle during which the defendant was still holding the knife and Figueroa was trying to grab it from him. Consequently, we find the verdicts are not void. We will, however, vacate the defendant’s conviction for reckless conduct because it is a lesser included offense of aggravated battery, and also because our reading of the record shows that a sentence of probation for only aggravated battery was imposed. The defendant was admonished by the trial court at sentencing about the more serious consequences of violating felony probation as opposed to misdemeanor probation; accordingly, it appears the court did not intend to sentence the defendant for the reckless conduct conviction, nor could it properly have done so because it was an included offense. See People v. King (1977), 66 Ill. 2d 551, 556.

The final issue is whether the court erred in not suppressing the physical evidence obtained in the search of the apartment. Defendant’s argument begins with the premise that the entry in the instant case was one to search, and not to arrest. He finds, therefore, that factors such as the likely destruction or removal of evidence, inherently dangerous evidence (e.g., explosives), search incident to a lawful arrest, hot pursuit, or the protection of property are the types of exigencies required to pass constitutional muster. He notes that should we determine that the entry was to arrest, not search, his position is that the State failed to show exigent circumstances existed which would have justified the warrantless arrest under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, and People v. Abney (1980), 81 Ill. 2d 159. Both those cases held that in the absence of exigent circumstances, a warrantless entry of a private residence to effect an arrest is constitutionally prohibited.

The State’s answer brief treats the entry as one to arrest, not to search, and proceeds directly to an analysis of the issue in light of Abney, concluding the warrantless entry was justified. We find no error in the State’s approach and concur in this initial conclusion. The warrantless police action in the instant cause was first and foremost an entry into a private residence for the purpose of making an arrest. In order to justify such an entry, there must be probable cause, and there must also be exigent circumstances.

The Payton court had found persuasive Judge Leventhal’s reasoning in Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, wherein:

“He reasoned that the constitutional protection afforded to the individual’s interest in the privacy of his own home is equally applicable to a warrantless entry for the purpose of arresting a resident of the house; for it is inherent in such an entry that a search for the suspect may be required before he can be apprehended. Judge Leventhal concluded that an entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection.” (Emphasis added.) Payton v. New York (1980), 445 U.S. 573, 588, 63 L. Ed. 2d 639, 652, 100 S. Ct. 1371, 1381.

After Payton, our supreme court considered the impact of that decision with relation to Illinois’ arrest statute. (People v. Abney (1980), 81 Ill. 2d 159; Ill. Rev. Stat. 1979, ch. 38, par. 107 — 1 et seq.) In Abney the court observed:

“In Coolidge, the court had ruled that warrantless searches are unconstitutional in the absence of exigent circumstances [citation], and four members of the courts, in dicta, expressed the opinion that the same exigency requirement is applicable to warrantless entries to arrest [citation]. In Payton, the court adopted the view of those four justices, holding that a warrant is required to support a nonexigent entry into a private residence for the purpose of effecting a felony arrest.” 81 Ill. 2d 159, 166.

The Abney court went on to determine that the Illinois arrest statute, as judicially construed, complies with the constitutional guidelines enunciated in Payton since the principal of the exigent circumstances rule had been impliedly observed in past Illinois decisions and that the requirements of the rule had therefore been “judicially engrafted” upon the statute. (81 Ill. 2d 159, 167-68.) Despite the State’s attempt in the instant cause to suggest otherwise, it is clear that the rule enunciated in Payton does apply here since, according to Abney, that rule is nothing new in Illinois: in addition to probable cause, exigency factors were found to be present in prior Illinois cases where warrantless entries to arrest had been upheld. 81 Ill. 2d 159, 167-68.

Although Payton did not, Abney did discuss the factors to be considered in determining whether warrantless entry to arrest was necessitated by exigent circumstances. These factors are considered here in relation to the facts of the instant cause. First, the offense was relatively recent, suggesting a need for prompt action. The victim’s first contact with the police came only minutes after he fled bleeding from Sharlotte’s apartment. Abney considered a similar report from a beating victim to police made within 1*2 hours to be “ ‘within the spirit ' # "of the “hot pursuit” exception.’ ” (81 Ill. 2d 159, 169.) Clearly, the instant facts are encompassed within the spirit of this exception as well. Second, there was no deliberate or unjustified delay by officers during which time a warrant could have been obtained. The only delay here between the victim’s first contact with the police and their entry into the apartment to arrest was that necessary to secure the services of a Spanish-speaking officer, medical attention for the victim’s wounds, and backup officers. We believe these delays were justified under the circumstances. Third, the need for prompt action was further made apparent by the belief that the suspect was armed and exhibited some sign of a violent character. Although the defendant was not armed with a gun, he quite obviously was armed with a knife. The victim’s bruises, bumps and cuts were vivid evidence of the suspect’s violent character;

The Abney court then also found the exigent circumstances in that case were enhanced by “other factors * * 0 which suggest that the officers acted reasonably.” (81 iLL. 2d 159, 171.) These “reasonableness” factors, with reference to the instant facts, were that first, there was a clear showing of probable cause based on reasonably trustworthy information. The victim, an ordinary citizen, had obviously been physically attacked, and was able to describe to the police the circumstances under which his injuries occurred. Second, although the defendant here was not clearly named as the assailant, the victim was able to locate the building and the exact apartment in which the offense allegedly occurred. Further, although the victim did not know whether the defendant lived in the apartment, Stinnette most certainly did, and the warrantless police entry was made for the purpose of arresting her as well as the defendant. Third, there was strong reason to believe the perpetrators were in the premises entered. As they approached the building in question, the police in the presence of the victim observed two black persons (although not specifically identifiable at that time as either men, women, or a man and a woman) in an upstairs apartment window which was identified by the victim as being the apartment where the attack took place. Entering the building through an unlocked door and approaching the door of the apartment, the police saw light and heard loud music. One of the officers heard a woman’s voice as well. Considering the relatively short amount of time that had passed between the attack and the approach to the apartment, we believe there was strong reason to believe the suspects were present. Fourth, the entry was peaceful. That the entry here was peaceful was not disputed. It was so peaceful, in fact, the issue of consensual entry has arisen. As defendant argues, however, Stinnette’s “mere acquiescence to police authority does not necessarily establish consent” (People v. Montgomery (1980), 84 Ill. App. 3d 695, 701), and we do not find that the entry here was consensual.

Assessing all of the above factors together, we conclude the warrantless entry to arrest pursuant to probable cause and exigent circumstances was not violative of the fourth amendment. Once the police were inside the apartment and became aware that Stinnette’s boyfriend, Ken Anderson, was not the black man who attacked Figueroa, they were justified in continuing the search for her confederate.

In his “Search and Seizure, A Treatise on the Fourth Amendment,” Professor LaFave discussed the propriety of actions taken after an arrest has been made. He notes three basic actions: searches into or examination of other areas of the premises first, to insure the safety of the officers, referred to as the “protective sweep”; second, to find potential accomplices of the arrestee; and third, as a consequence of movement about the premises by the arrestee. (2 W. LaFave, Search and Seizure §6.4 (1978).) Certainly, once Stinnette was arrested, and Anderson discovered in the bedroom, the police were warranted in looking further for the man who attacked Figueroa. We believe the search was properly extended to include the basement, since the apartment back door was slightly ajar and the stairs led almost directly down into the basement area. In our opinion, the entry to arrest was justified and the trial court properly denied the defendant’s motion to quash his arrest.

With regard to the extent of the search conducted and the items seized, additional exigency factors must be present before the requirement of a warrant may be excused, and the burden of showing the existence of the exception which proves the rule belongs to the party seeking it. (People v. Rinaldo (1980), 80 Ill. App. 3d 433, 434.) Therefore, it was the State’s burden to prove the warrantless search was justified either because it was (1) incident to a custodial arrest, and was limited in scope to the area of the arrestee’s immediate control (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034), or (2) that it was a search conducted under the “emergency doctrine” exception; that is, the evidence would be lost or destroyed if the search was delayed to obtain a warrant (Vale v. Louisiana (1970), 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969); or (3) that the search was consensual (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854,93 S. Ct. 2041). Additionally, items inadvertently discovered in plain view in a place where the police have a right to be may be seized if there is probable cause to believe they constitute the proceeds or instrumentality of a crime. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

The defendant’s motion to suppress sought suppression of “any and all tangible or intangible evidence as the result of the illegal arrest, search or seizure.” His motion was denied after a hearing. On appeal, defendant specifically argues that the victim’s rings, $15 in currency, photographs taken in the apartment, and the knife should have been suppressed because the entry was not pursuant to a valid warrant or within the recognized exceptions.

The State argues the search was justified under the “emergency doctrine” in that the evidence would have been removed or destroyed before a warrant could be obtained. It cites United States v. Rubin (3d Cir. 1973), 474 F.2d 262, in support of its position. We find Rubin distinguishable on its facts. In that case, a suspect being followed by agents made a drop-off of a crate agents knew contained narcotics. Shortly thereafter, the suspect was apprehended, and several agents were dispatched to seek a warrant to search the premises where the crate had been left. The arrestee then began shouting to nearby spectators to call his brother. Fearing destruction of the evidence, agents proceeded immediately to conduct a warrantless search of the premises, and that warrantless search was upheld. The State’s prime contention that Ken Anderson would likely have destroyed or removed the evidence is wholly without support in the record. In fact, the report of the preliminary hearing in this cause directly contradicts the assertion in the State’s brief that Ken Anderson was not arrested. The record shows Anderson was also arrested the same time Harris and Sharlotte were, but only for possession of a hypo unrelated to the robbery. That aside, no evidence was introduced at the suppression hearing or during trial which indicated positively that Anderson was present in the apartment during the robbery, or whether he knew anything about the robbery if, as defendant contends, he was present but asleep in the bedroom. In our opinion, the State failed to meet its burden of showing that the warrantless search was justified by any of the recognized exceptions, and that it was error for the court below not to suppress these items. However, it is also our opinion that the introduction of these items did not prejudice the defendant and, therefore, the error was harmless beyond a reasonable doubt. Although the items sought to be suppressed may have caused the jury to believe the victim’s testimony against the defendant, it is clear it did not believe all of it since it failed to convict the defendant for either armed robbery or armed violence. Furthermore, the items sought to be suppressed were all consistent with the defendant’s own testimony. He never denied that he held the knife which cut Figueroa, nor that he had taken $15 and Figueroa’s two rings to the basement. The evidentiary items were as consistent with defendant’s innocence as his lack of it. Consequently, reversal on this basis is not warranted.

The defendant’s conviction for reckless conduct is hereby vacated; and the judgment of the circuit court of Lake County is affirmed.

Judgment vacated in part and affirmed in part.

HOPF and LINDBERG, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY EARL, Defendant-Appellant.
    Second District
    No. 80-867
    Opinion filed March 18, 1982.

      Mary Robinson and John J. Barrett, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (PhyUis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant was convicted, in a jury trial, of armed violence, aggravated kidnaping, and kidnaping. He was acquitted of the charge of attempt murder. He appeals from his convictions and from his sentences of concurrent terms of 25 years’ imprisonment for the offenses of aggravated kidnaping and armed violence, contending that it was error to enter judgment on both the conviction for aggravated kidnaping and the lesser included offense of kidnaping, and on both armed violence and the lesser included offense of aggravated battery. Also, that the information charging aggravated kidnaping was not supported by the proof; that the 25-year sentence for armed violence exceeded the statutory maximum for the use of a category II weapon; and that the sentences were excessive.

At approximately 1:40 a.m. on November 9, 1979, the complaining witness concluded her shift at Abbott Laboratories inNorth Chicago, and crossed to a small parking lot where her car was kept and was in the car waiting for it to warm up. She leaned over to look for an ice scraper on the floor and out of the corner of her eye, she saw “a pair of legs” cross in front of her car. Her next memory was her awakening in a hospital bed.

At about 1:45 a.m. a police officer followed a car which he noticed had its trunk open. After a chase the car pulled into a driveway. The officer aimed his spotlight and caught a brief glimpse of a man bolting out of the door. The man jumped a fence and was gone. The officer then found the victim unconscious in the trunk of the car. The officer was unable to positively identify the man fleeing from the car as the defendant. However, a print was lifted from the trunk area of the car and found to have 12 points of identification with the right index finger of the defendant. From the investigation of the scene, leaf and grass samples were shown to be covered with blood, and there was a trail of blood leading from the lot to bushes where a hood from a red vinyl coat was recovered. In addition, a crowbar was found in a leafy area. There was evidence that the crowbar had traces of type B blood and that the complaining witness’ blood was type B while the defendant’s blood type was type O.

There was medical evidence that the complaining witness was bruised on her chest, arms and legs, had a fractured skull, and 10 large lacerations from 1M to 4 inches long on her head. Her earlobe had been split into two sections, there was medical opinion that the victim had been struck 10 or 11 times with a blunt instrument which had “some sort of an edge,” and that each of the lacerations on the victim’s head corresponded to one blow. The medical expert indicated that the injuries could have been caused by an object similar to the crowbar.

A witness, who was a co-worker of the victim and was also acquainted with the defendant, testified that on November 9, 1979, defendant appeared at his door and asked him to wash defendant’s coat, and that he noticed that the coat had “little blood specks” on the right sleeve. The witness turned over the coat and a pair of shoes. It was determined that the shoes had traces of type B blood.

The tape recorded statement from the defendant was introduced into evidence and incorporated into the record on appeal. In the statement defendant said he noticed the car with its engine running in the parking lot, didn’t see anyone in the car, so approached through an adjoining yard where he “found a crowbar.” He then approached the car, crowbar in hand, and when it looked like no one was around came up to the vehicle. He said that suddenly a woman popped up through the open door of the automobile and startled him. He said that “I got scared, and I hit her maybe three, four times, I’m not sure.” He then carried the woman from the car to a group of bushes at the edge of the parking lot, and laid her body down between the hedges. He then drove her car around the block and through an alley, stopping again where her body lay. First he attempted to place her body in the back seat of the victim’s car and when that didn’t work threw her into the trunk and drove off. After he fled from the vehicle he later watched from the bushes as the victim’s body was removed from the trunk. He noticed at the time that there was blood on his shoes. He said the next morning he went to a friend’s home in Waukegan where his coat was washed.

The defendant in court recanted his taped confession, claiming he had been beaten. This was denied by the police on rebuttal. He testified that on the evening in question between 7 and 11 p.m. he attended band practice and left in the company of Sonny Harris. He and Harris went to a tavern where he said they stayed until 2 a.m. and thereafter spent the night at Harris’ home. He claimed he had never seen the victim on November 9, 1979, and explained the blood on his coat and shoes as due to a fight he engaged in some time in January of 1980.

Harris testified that he had gone to the tavern with defendant but he wasn’t sure of the exact date. He based his recollection on the fact that defendant and the other band members usually went there after band practice.

The major controversy involves defendant’s challenge to his aggravated kidnaping conviction. Section 10 — 2(a)(3) of the Criminal Code of 1961 provides:

“Sec. 10 — 2. Aggravated kidnaping, (a) A kidnaper within the definition of paragraph (a) of Section 10 — 1 is guilty of the offense of aggravated kidnaping when he:
# # #
(3) Inflicts great bodily harm or commits another felony upon his victim, or ° (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3).)

The defendant argues that the statute requires that before there can be aggravated kidnaping the predicate offense of simple kidnaping must be complete; that, here, the only evidence is that his motivation to kidnap was formed subsequent to and separate from his infliction of great bodily harm.

We first conclude that the statute does not preclude a finding that a kidnaping is aggravated simply because the great bodily harm precedes the completion of the offense of kidnaping. We agree, as defendant suggests, that a substantial purpose of the statute is to deter the commission of a subsequent felony against a kidnaped victim. (People v. Scott (1977), 45 Ill. App. 3d 487, 491.) We find nothing in the language of the statute or in its purpose which precludes punishing more severely one who in the course of a kidnaping inflicts great bodily harm or commits another felony. We consider the key issue to be whether the infliction of the great bodily harm or the commission of another felony results from the same continuing state of mind as the kidnaping.

There is sufficient evidence in this record from which the jury could reasonably infer that the severe beating of the victim and the later abduction resulted from a continuous state of mind. From the circumstances the jury could properly reject defendant’s explanation in his statement that he intended initially only to steal the car and the infliction of the great bodily harm occurred in that connection. Ordinarily, a defendant’s mental state is proved circumstantially by inferences reasonably drawn from the evidence. (People v. Hancock (1978), 65 Ill. App. 3d 694, 699.) The determination of a defendant’s subjective mental state is ordinarily for the jury, and its verdict will not be disturbed unless the evidence is unreasonable or improbable. People v. Evans (1981), 87 Ill. 2d 77, 86.

There was evidence that defendant dragged the unconscious victim to a nearby hedge where the crowbar and jacket were concealed. The fact that defendant shortly returned there and abducted the victim could lead to a reasonable inference that defendant, when he brutally attacked the victim, intended to remove her from the scene after first concealing her and taking steps to guard against his being observed by passersby. The jury was not required to accept defendant’s statement as a reasonable hypothesis of innocence of the aggravated kidnaping and elevate it to the status of reasonable doubt. (People v. Hancock (1978), 65 Ill. App. 3d 694, 698.) The evidence adequately supported the jury’s verdict finding defendant guilty of aggravated kidnaping as charged by the information. Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3).

The State has conceded that the offense of kidnaping, as a lesser included offense of aggravated kidnaping, arose from closely related acts and that it was improper to convict defendant of both offenses. We agree. Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 1, 10 — 2; People v. Marin (1971), 48 Ill. 2d 205, 210. See also People v. King (1977), 66 Ill. 2d 551, 566.

The State also concedes, and we agree, that it was error to enter judgment on defendant’s convictions for armed violence and its predicate offense, aggravated battery. Under the circumstances of this case both offenses appear to arise from the same physical acts, the beating of the victim, making multiple convictions improper. People v. King (1977), 66 Ill. 2d 551, 566.

The objection to sentencing includes a challenge to the imposition of a 25-year term on the armed violence for category II weapon, which exceeded the statutory maximum. The State has properly conceded error on this issue. Defendant was charged with armed violence for use of a crowbar in the commission of aggravated battery. A crowbar for the purposes of the armed violence statute is classified as a “category II weapon.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 1(c).) Thus, the sentence for a first offense of armed violence would be a Class 2 felony, or the felony classification for the predicate offense, whichever is greater. Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3(b).

Here, aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(e)); the Class 2 classification for armed violence would be applied. The maximum extended term applicable to a Class 2 felony is 14 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(4).) The trial court therefore abused its discretion by imposing sentence on the defendant well in excess of the maximum term for armed violence. This requires that the sentence be vacated.

The defendant also claims that the 25-year sentence for aggravated kidnaping is excessive. However, the trial court detailed its finding that the commission of the offense was accompanied by exceptional brutal or heinous behavior indicative of wanton cruelty, and the finding is amply supported by the record. We will not disturb the exercise of the court’s proper discretion. People v. La Pointe (1982), 88 Ill. 2d 482, 492.

The defendant’s conviction and sentence for aggravated kidnaping are affirmed. The convictions of kidnaping and aggravated battery are vacated. The conviction of armed violence is affirmed. However, the sentence imposed for armed violence is vacated and the cause remanded for resentencing on that conviction.

Affirmed in part, vacated in part and remanded.

REINHARD and NASH, JJ., concur.