author: JUSTICE GOLDBERG

text:
      In re MARRIAGE OF HULBERT GREENBERG, Petitioner-Appellant, and JEAN GREENBERG, Respondent-Appellee.
    First District (1st Division)
    Nos. 81-240, 81-348 cons.
    Opinion filed December 21, 1981.

      Douglas Polsky and Harvey Sussman, both of Chicago, for appellant.
    Kirsh & Berman, Ltd., of Chicago, for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Hulbert Greenberg (petitioner) and Jean Greenberg (respondent) were married on June 14,1953. They had two children, llene, age 22, and Julie, age 20, at the time of trial. Petitioner sued for dissolution of the marriage on December 14,1977. After a hearing on May 21,1980, the trial court awarded respondent temporary maintenance and attorneys fees. On June 17, 1980, the trial court granted a dissolution of the marriage on the grounds of mental cruelty after an uncontested prove-up (see Ill. Rev. Stat. 1979, ch. 40, par. 401(2)). After trial, marital assets were divided by the court in an order dated December 9, 1980. Subsequent hearings were held on the issue of attorneys fees resulting in an order entered March 13, 1981. Petitioner has appealed from all monetary decisions by the trial court.

I

Temporary Maintenance

Petitioner is self-employed in the practice of optometry. His income tax returns for 1977, 1978, and 1979, showed gross annual income of $30,295, $36,977, and $41,870 respectively. During 1979, petitioner contributed $4,802 toward his own Keogh retirement plan and purchased an automobile for approximately $9,000. Part of the automobile purchase price came from insurance funds.

Petitioner was then currently residing in the marital home in Floss-moor, Illinois. He noted his affidavit indicated a monthly net income of $2,200. Petitioner also testified to detailed expenditures for college education of his daughters. These expenditures were paid out of monthly income, savings, and proceeds from the sale of approximately $10,000 of bonds. Petitioner was aware that both daughters have their own savings accounts.

Respondent testified her affidavit of expenses listed “estimated” rental payments of $500 per month although her actual rent was then currently $150 per month. Similarly, her “estimated” utility expenditure was listed in her affidavit as $150 per month, whereas she currently paid nothing for utilities. Respondent testified these estimated expenses were those she expected to be paying in the near future when she moved into a new apartment. She stated she was then currently residing in the apartment of a friend’s mother, but would soon have to move out. Respondent also testified she was sending $25 per month to each of her daughters. She also incurred personal expenditures of $200 per month for entertainment and $150 per month for clothing.

Respondent testified she is currently employed as a legal secretary at a gross salary of $275 per week. Her income was in excess of her expenses, allowing her to save $1,500. She owned stock, given her by her mother, valued at approximately $15,700. The dividends from these stocks went to help support her mother. Respondent stated she had also recently sent $250 to her younger daughter. The trial court allowed respondent $110 per week as temporary maintenance.

Petitioner notes the discrepancy between respondent’s “estimated” and actual expenses and points out she has been able to save portions of her salary. Petitioner contends this ability to save money, combined with her “stock portfolio,” establish respondent was financially capable of supporting herself.

Section 501(a)(1) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 501(a)(1)) specifically permits a moving party to receive temporary maintenance. In Bellow v. Bellow (1979), 72 Ill. App. 3d 608, 610, 391 N.E.2d 29, this court stated “[a] temporary support order is primarily within the sound discretion of the trial court and, absent an abuse of discretion, this court will not reverse such an order.” The trial courts have “wide latitude” in this regard. See In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 657, 409 N.E.2d 321.

We cannot say the instant award was an abuse of discretion. Although respondent was neither destitute nor unemployed, she was clearly living at a standard far below that which she enjoyed during her marriage. (See In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 102-03, 419 N.E.2d 400.) Her earnings are far less than those of petitioner. Generally, “the manner in which the parties have been accustomed to live” should be considered as regards maintenance. (In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 934, 409 N.E.2d 461.) The trial court described the maintenance award as 20% of petitioner’s net monthly earnings.

We find no discrepancy between respondent’s actual and projected expenses which demonstrates an abuse of discretion by the trial judge. The fact that respondent’s affidavit detailed projected and not actual expenses was adequately brought to the attention of the trial judge, as was respondent’s contention that these estimated expenses would shortly become actual expenditures. Thus, this factor became a question of credibility which the trial judge was in the best position to determine. In addition, the ownership of stocks by respondent does not establish her as financially independent. Respondent should not be required to divest herself of assets or impair her capital in order to maintain herself. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336.) We therefore conclude the temporary maintenance award was not an abuse of discretion.

II

Temporary Attorneys Fees

Section 508(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)) provides:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, 6 *

After respondent had been awarded temporary maintenance during the hearing of May 21, 1980, counsel for respondent orally requested an order for temporary attorneys fees. No petition for fees had been filed, but counsel for respondent stated he had performed approximately 20 hours of work and had been paid only costs. Counsel for petitioner argued such request was premature. The trial court awarded counsel for respondent $1,000 as temporary fees.

In our opinion this allowance was an abuse of discretion by the trial court. Although the award was made after the trial court had heard evidence as to the financial status of the parties, no petition stating the detailed services performed and the amount of fees claimed was ever presented to the trial court by counsel for respondent. This court has held that “the granting of attorney’s fees is improper where no evidence is heard as to the items of service performed, or as to the basis of the amount requested or as to the reasonableness of the fees for such services.” (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1120, 421 N.E.2d 1308.) The order for temporary attorneys fees is therefore vacated.

III

Marital Property

The marital property is:

A. The home in Flossmoor valued at $110,000 with mortgage of approximately $19,000.

B. Petitioner’s automobile valued at about $9,000 and respondent’s car about $3,800.

C. Deposits by petitioner in a retirement plan, approximately $24,000.

D. In possession of respondent, $3,000.

E. Petitioner’s savings account, $228, and respondent’s savings account, $1,600.

F. Petitioner’s optometry business, unvalued.

G. Furniture and furnishings, some retained in the home, others removed therefrom by respondent, and others sold by petitioner.

The judgment gave respondent 15% of the net value of the house being about $68,250; $5,000 for furniture remaining in the house or unilaterally sold by petitioner; $6,500 being about one-half of the proceeds of liquidation of stocks and bonds by petitioner; $3,000 being marital property held by respondent (item D above); respondent’s car valued at $3,800; and $1,600 being respondent’s savings account (item E above). Certain savings and securities which respondent had obtained from her mother were treated as respondent’s own property and not as marital property. See Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1).

The judgment gave petitioner 25% of the net value of the marital home being about $22,750 and all furnishings remaining therein; his car; his savings account (item E above); his entire interest in the retirement plan; and his optometric practice.

The extended trial on distribution of property presents a devastating example of the futility of litigation of this type which is begun and conducted in a mutual spirit of hatred and revenge. The record is a maze of factual contradictions by both parties. The parties could agree only on the value of the marital residence. Virtually each and every other asset was the subject of bitter charges and countercharges.

For example, petitioner accused respondent of removing marital funds from a joint account for purchase of a cashier’s check in order to hide them from both petitioner and the Internal Revenue Service. Respondent countercharged petitioner had opened an undisclosed personal bank account with marital funds taken from this same joint account. Petitioner charged respondent with dissipating marital funds on adulterous affairs. Respondent, on the other hand, charged petitioner with selling jointly held stocks and bonds without her permission and failing to account for the proceeds. Petitioner was also accused of securing an automobile being used by respondent and later selling it for scrap.

Petitioner charged respondent cleared the marital residence of all furnishings of any value with the help of a moving van. Respondent countered that petitioner wilfully sold certain items of furniture respondent had specifically requested. Respondent also accused petitioner of secretive bookkeeping practices with respect to his business income in addition to secreting funds allegedly contributed to petitioner’s retirement plan. Petitioner charged respondent with taking improper tax deductions for real estate tax payments made by petitioner.

In this situation the task of the trier of fact was painfully difficult as is the decision by this court. It is sufficient to say that no human agency could possibly or will ever arrive at the total truth. With this type of a record before us we cannot say that the results reached by the trial court are contrary to the manifest weight of the evidence.

The pertinent statute gives the trial court 10 separate guidelines which are listed as relevant factors to accomplish a fair division of the marital property “without regard to marital misconduct * ° (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) Reviewing courts which have considered this problem classify the matter as one within the sound discretion of the trial court. (In re Marriage of Smith (1980), 90 Ill. App. 3d 168, 171, 412 N.E.2d 985, and cases there cited.) One pertinent case makes the sage observation that “if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.

It is virtually impossible for this court to state all of the pertinent facts with any semblance of accuracy. As shown, the testimony is not only divergent but actually conflicting. We can best approach the problem by a consideration of the contentions made by counsel for petitioner as to why the judgment reflects a breach of discretion. The argument is first made that the trial court emphasized alleged dissipation of marital assets by petitioner (see Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1)), by failing to consider dissipation of assets by respondent. This argument overlooks the legal maxim that the trier of fact who saw and heard the witnesses is in a superior position to evaluate credibility.

Generally speaking, there is ample evidence in the record to support the results reached by the trial judge as to dissipation of assets by petitioner in connection with sale of jointly held securities without completely accounting for proceeds of sale, and disposing of home furniture and the marital automobile of respondent. As regards the conduct of respondent the record only indicates a vague usage of unspecified marital assets for a “nonfamily purpose.” In addition, there is unassailed evidence that respondent contributed significantly to the purchase price of the marital home. Respondent made half of the down payment for the home purchase by sale of bonds given to her by her mother. The other half came from the sale of a duplex apartment owned by the parties.

It must also be remembered that the evidence is clear that respondent was active as a homemaker through the entire period of 27 years during which the marriage existed. Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1), par. 503(c)(3).

Petitioner urges the trial court failed to consider the value of the property set apart to each spouse with reference to household furniture, automobiles and petitioner’s optometry business. Regarding household furniture, the record does not show any specific offer of proof by either party as to the value of any of these items. The trial court did hear testimony regarding the value of the automobiles. Petitioner testified he purchased his automobile in 1979 for $9,000. Respondent testified she purchased her car for $3,800. She did not know its exact value as of the date she testified. This evidence of valuation was sufficient for the purposes before the trial court.

As regards petitioner’s optometry practice, there is testimony by petitioner that the business “had no value.” This situation is one in which the worth of the business and its future earnings will be determined largely by the contributions and services made by petitioner. Any attempt at placing an exact value upon this asset would be completely arbitrary and therefore utterly futile. We will add that the evidence shows respondent’s gross income was reflected in her 1979 income tax return as approximately $16,000. Respondent is presently employed as a legal secretary. By way of contrast, as above shown, petitioner’s gross income for 1979 was $41,870.

The situation is best summarized by the statement that there are instances in which it is essential for purposes of complete fairness that a definite valuation be assigned to certain marital property. (See In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 459-60, 426 N.E.2d 1087; and In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 565, 425 N.E.2d 1146.) The optometry business does not, in our opinion, come within this category.

It is our considered conclusion that the trial judge was fully aware of the requirements of the statutory guidelines and that he did his best to make a fair and reasonable apportionment of the marital property. As closely as we can calculate, the total amount of marital property here involved is about $144,000. Respondent received about 61 to 62% and petitioner about 38 to 39% plus the optometry business. We cannot conclude that this disposition of marital assets was an abuse of discretion.

In addition, the fact that the trial court awarded respondent more than half of the property does not make the division unfair. “[A]n equitable division of marital property is not necessarily an equal one.” (In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 312, 401 N.E.2d 328. See also In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238.) In this regard the judgment is affirmed.

IV

“Permanent” Maintenance

Petitioner next argues the trial court improperly granted respondent $100 per week for two years as maintenance. (Ill. Rev. Stat. 1979, ch. 40, par. 504.) Petitioner notes the statutory requirement that allowance of maintenance is proper only if the wife lacks sufficient economic resources of her own. Petitioner contends respondent is both employed and in possession of significant assets.

We find no abuse of discretion in the award of maintenance by the trial court. Although petitioner is correct in noting that respondent is neither destitute nor unemployed, the Act also requires the court in awarding maintenance to consider the duration of the marriage and the standard of living established during the marriage. (See Ill. Rev. Stat. 1979, ch. 40, pars. 504(b)(3), 504(b)(4).) As above noted, these parties were married for 27 years. Respondent enjoyed a higher standard of living than that now available to her. Respondent’s salary is far inferior to that of petitioner, as is her opportunity to generate a significantly larger future income. While respondent does possess capital assets worth approximately $33,000, aside from division of marital property, this court has held a party need not be required to consume these assets before being entitled to maintenance which will enable her to enjoy the standard of living established during the marriage. In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088.

We also cannot accept petitioner’s contention that the trial court failed to consider petitioner’s ability to maintain himself in awarding maintenance. As above noted, petitioner’s 1979 tax return showed gross income of $41,870 from his business. Payment of the $100 per week maintenance ($5,200 per year) leaves a significant sum available to petitioner. It is also significant to note this maintenance award is for only two years. If, during that period, petitioner is unable to meet his own needs, he may move the trial court to modify this decree. See Ill. Rev. Stat. 1979, ch. 40, par. 510(a).

Accordingly, we conclude the award of maintenance was not against the manifest weight of the evidence and did not demonstrate an abuse of discretion by the trial court. In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 296, 426 N.E.2d 1066.

The award of maintenance is therefore affirmed. See In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 313.

V

Educational Expenses

Petitioner next argues the trial court erred in ordering him to continue to pay support and educational expenses for their youngest daughter, Julie. Petitioner contends the trial court failed to consider his financial position after the disposition of marital property in relation to that of respondent and Julie herself.

The statutory provision dealing with support for nonminor children and educational expenses states (Ill. Rev. Stat. 1979, ch. 40, par. 513):

“The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.”

We find no error in the decision of the trial court. As noted in detail above, the evidence before the court clearly established petitioner to be in a superior financial position than either respondent or Julie. (See In re Marriage of Edelstein (1980), 82 Ill. App. 3d 574, 577, 403 N.E.2d 323, appeal denied (1980), 81 Ill. 2d 591.) We believe that, as directed by this statute, the trial court properly considered the standard of living which Julie would have enjoyed had the marriage not been dissolved. It is apparent Julie owned some income-producing securities, apparently a gift from her grandmother. The precise value of these stocks is shrouded in doubt. As nearly as can be ascertained, the stock held for Julie is valued at approximately $13,000. In our opinion, the testimony at trial established Julie’s financial position was inadequate to permit her to complete her education without assistance. The record does not support petitioner’s contentions that he is unable to meet his daughter’s final educational expenses.

Petitioner also urges this court to consider the question of whether or not Julie is entitled to support under section 513 (Ill. Rev. Stat. 1979, ch. 40, par. 513) because she is emancipated and, as petitioner suggests, is residing with an unmarried friend. The fact that a child may be emancipated does not preclude the court from ordering the payment of educational expenses. (See In re Marriage of Taylor (1980), 89 Ill. App. 3d 278, 282-83, 411 N.E.2d 950.) We decline to consider petitioner’s contention regarding Julie’s private life. First, these alleged facts were never brought before the trial court prior to its judgment, but were first raised in enforcement proceedings several months later. We also find Julie’s living situation completely irrelevant to the issues at bar. The cases cited by petitioner (Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, cert. denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 329 and Gross v. Gross (1974), 23 Ill. App. 3d 228, 318 N.E.2d 659, appeal denied (1975), 57 Ill. 2d 607), have no relation to nonminor child support and educational expenses under section 513 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 513). This argument is therefore rejected.

VI

Attorneys Fees

Petitioner next contends the trial court erred in awarding attorneys fees on behalf of respondent. Petitioner contends the court failed to consider the necessary statutory factors, so that its order was an abuse of discretion and contrary to the manifest weight of the evidence. Petitioner further argues the trial court lacked jurisdiction over the question of attorneys fees, because the hearing was held subsequent to the filing of petitioner’s notice of appeal from the December 9, 1980, judgment.

This issue is not properly before us. Petitioner has presented a copy of an alleged report of proceedings on the issue of attorneys fees as an appendix to his brief. This copy is not certified by the trial court. There is no stipulation regarding authenticity of this document. The original of this document has never been filed in the trial court or this court. Thus, there is no compliance with Supreme Court Rule 323 (73 Ill. 2d R. 323). Petitioner has therefore “waived all points that can be reviewed only by a consideration of what actually transpired at the hearing.. * * * Under such circumstances, it has been held that a reviewing court must presume that the trial court acted in conformity with the law and properly exercised its discretion.” (Washington v. Clayter (1980), 91 Ill. App. 3d 489, 495, 414 N.E.2d 1085.) Additionally, as will be shown, at trial the parties expressly and by agreement reserved the issue of attorneys fees for later hearing.

VII

Accord and Satisfaction

In a rather unusual argument, petitioner next contends the trial court improperly “lent his good offices to the parties and thereby effected an oral settlement agreement.” Petitioner contends this settlement provided for an uncontested prove-up of grounds for dissolution and a property settlement. Petitioner then states the trial court improperly allowed respondent to repudiate the terms of the settlement after the prove-up on the grounds of mental cruelty. Petitioner contends the trial court assisted in the settlement negotiations and deliberately held proceedings off the record. Petitioner argues this action tainted the entire proceedings and justifies a remand of this case. Petitioner further argues he is entitled to accord and satisfaction of the proposed settlement agreement which the respondent was improperly allowed to repudiate.

Respondent contends there was no assistance by the trial judge in any manner in connection with settlement negotiations. Respondent urges the parties had reached a tentative settlement prior to the uncontested prove-up of June 17,1980, but petitioner later repudiated its terms thus forcing a contested trial. Respondent further contends no settlement was ever reached, thereby negating any request for accord and satisfaction.

The review of this court is limited to the record before us. The record does establish that on June 17, 1980, prior to prove-up of dissolution, counsel for petitioner informed the trial court the parties intended to propose a written settlement agreement to the court. The prove-up on the grounds of mental cruelty was completed. The record further shows that on September 2, 1980, counsel for petitioner requested the trial court to vacate the prove-up of dissolution and proceed anew on different grounds. Counsel for petitioner conceded absence of fraud in the prove-up. The trial court denied the motion and proceeded with the hearing on the property issues.

We see little merit in petitioner’s contentions. While settlement negotiations between the parties may have fallen through between the hearings described above, we find no fault in the trial court’s refusal to rehear the prove-up on other grounds. As noted by the trial court, precisely which grounds are proved is immaterial. The Act prescribes property distribution to be accomplished without regard to marital misconduct. See Ill. Rev. Stat. 1979, ch. 40, par. 503(c).

Our review of the record does not support petitioner’s allegations of judicial misconduct with respect to settlement negotiations. We find no evidence that the trial court interceded in any manner in any negotiations. We also note the record does not contain any evidence as to the terms of any alleged settlement agreement. The record contains no copy of any actual or proposed settlement agreement. We therefore reject this contention of petitioner.

VIII

Failure To Dispose of All Material Issues

Petitioner’s final contention is the trial court erred in entering a final judgment with respect to the dissolution and financial issues while failing to dispose of all of remaining material issues. Petitioner notes the judgment failed to dispose of his cross-petition for legal separation (which had been consolidated into the instant action), the third count of his petition for dissolution which is an action against a third party for alienation of affections and the issue of final attorney fees. Such failure, urges petitioner, mandates reversal of the judgment.

We do not believe these issues are before us. Petitioner did not raise any of these matters in his post-trial motion or his notice of appeal. The issues are therefore waived.

In addition, the issue of attorney fees was expressly reserved for further hearing by agreement in open court by counsel for petitioner in the proceedings on June 17, 1980, on the grounds for dissolution of the marriage. The issue of legal separation is not viable at this time because of the previous entry of the judgment for dissolution of the marriage which has already accomplished a complete legal separation of these parties. The action for alienation of affections presumably may proceed at any time desired by petitioner. This problem has no relationship to or bearing upon the issues between petitioner and respondent. We note also that the judgment order appealed from contains the finding by the trial court required in Rule 304(a) (73 Ill. 2d R. 304(a)).

The order granting respondent temporary attorney fees is therefore reversed. In all other matters the judgment appealed from is affirmed.

Affirmed in part; reversed in part.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN JUSTICE DOWNING,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL PAYNE et al., Defendants-Appellants.
    First District (2nd Division)
    No. 80-973
    Opinion filed December 22, 1981.

      DOWNING, J., concurring in part and dissenting in part.
    James J. Doherty, Public Defender, of Chicago (Karen A. Popek and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Barry A. Gross, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendants Darnell Payne and Larry Bailey guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2), armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1). Payne was sentenced to concurrent terms of 24 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary. Bailey was sentenced to concurrent terms of 18 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary.

The issues raised on appeal include whether: (1) defendants’ arrests were illegal; (2) the lineup and in-court identifications of defendants were tainted by defendants’ illegal arrests; (3) a handgun previously ruled inadmissible on defendants’ motion to suppress should have been received in evidence; (4) defendants were proven guilty of the charges beyond a reasonable doubt; (5) defendants’ convictions for armed violence should be reversed; and (6) burglary is a lesser included offense of armed violence. For the reasons which follow, we affirm in part and reverse in part.

At the pretrial hearing on defendants’ motion to suppress, Chicago Police Officer J. Benigno testified that at about 9:30 a.m. on November 8, 1978, he was assigned to investigate the armed robbery that had just occurred at the victim’s apartment on North Lamon Avenue in Chicago. There he interviewed, among others, the victim, the building janitor, Claud Pearce, and his son, with respect to the robbery in general and the physical characteristics of the offenders in particular. Officer Benigno spoke briefly with the victim’s husband, who had to return to work, but stated that he would return later.

The victim’s husband later returned with a companion who told Benigno that he knew who had “shoved [the victim’s] door in and brandished the weapons [and] where they were likely to be.” The informant gave Benigno his name but requested that he remain anonymous because he knew the offenders and feared for his life. He told Benigno that defendants committed the burglary; that they were in the company of a black female named Brenda who had knocked on the victim’s door; and that the offenders would likely be found at an address either on West Quincy or Monroe Streets. The informant gave a physical description of defendants which matched the ones Benigno had received earlier from the witnesses and victim. The informant never stated where he received the information concerning the identity of the burglars. Benigno “got the distinct impression that he knew them [sic] almost as if he heard it from them.” He did not check the informant’s address, whether he had a record for violations, whether the informant had spoken with the victim’s husband about the incident, and never saw the man before or since the day of the burglary.

After his conversation with the informant, Officer Benigno and his partner proceeded to the West Monroe Street address where they found one Brenda Johnson. She told them that defendants Bailey and Payne had asked her to buy some drugs at the victim’s apartment. All she had to do was knock on the door and announce her name, which she did. Defendants then pushed her aside and wielded weapons at which time she became frightened and fled. She was not charged with an offense. Benigno was not present when defendants were arrested.

Also during defendants’ motion to suppress, Chicago Police Officer B. Munkvold testified that he met with Officer Benigno at approximately 4 p.m. on November 8,1978. Benigno had information as to the identity of the offenders in the armed robbery and their addresses. Pursuant to this conversation, Officer Munkvold and three other officers, without a warrant, went to the West Quincy Street address where they knocked on defendants’ door with their guns drawn. Defendants were placed under arrest and advised of their rights. The officers frisked defendants but found nothing. A search of the house, however, revealed a .32-caliber nickel plated revolver and a .25-caliber blue steel automatic in the vegetable bin inside the refrigerator. No sawed-off shotgun or money was located or recovered there. Defendants were standing in the living room approximately 10 or 12 feet away from the refrigerator in the kitchen where the weapons were found. An open doorway separated the living room from the kitchen.

At the end of the suppression hearing, the trial court found “ample evidence for probable cause to arrest.” The court stated that “there was a citizen-witness who gave a knowledgeable version of the crime,” corroborated by the victim. “He gave descriptions, gave the name Brenda.” The trial court held, however, that the subsequent search of the refrigerator in the kitchen exceeded the area within defendants’ immediate control and therefore was illegal and granted defendants’ motion to suppress the two weapons.

At trial, the State presented essentially the following evidence. The victim testified that shortly after 9 a.m. on November 8,1978, she heard a knock on the door. A woman identified herself as “Brenda.” The victim unlocked her chain, opened the door a little, and saw an unknown woman and man outside the door. She immediately slammed and locked her door, but two men smashed the door and burst through the panel. The short offender, Bailey, pinned her hands against her back and held a pistol to her temple. The tall offender, Payne, ordered Bailey to “shoot her, man, shoot her,” and then asked if she wanted her children to go to her funeral. Bailey forced her into a chair and put “something” over her eyes, either his hand or a blindfold. She was blindfolded for 3 or 4 minutes of the 20 minutes that the offenders were present in her house. Because the black handgun was pointing at her, she could not see much of Payne walking around to different parts of the living room. The offenders stole $75 in cash which was lying on the dresser and $2,000 in insurance proceeds. She got a good look at both offenders. Later the same day, at a police lineup of six men, she identified defendants.

On cross-examination, the victim testified that she first discovered that the $2,000 in insurance proceeds was stolen when her husband arrived home between 11 a.m. and 12 noon and he so advised her. She denied informing police that the tall offender had placed a shotgun to her head. She could clearly see the black revolver held at her head by Bailey, but this contradicted her earlier testimony at the preliminary hearing where she stated she “wasn’t looking that well.” She was extremely upset over the incident but not at the time of the lineup.

Claud Pearce testified that he was a janitor who lived one floor directly below the victim’s apartment. At about 9 a.m. on November 8, 1978, he heard a loud racket like somebody breaking in. Upon investigation he observed that the door to the victim’s apartment was “busted” open. Standing just across the hall from that apartment, he saw a tall offender exit and shout to his accomplice, “Hurry up, man let’s go.” He next observed a short offender emerge, lock the burglary gates closed and “take off” down the hallway. Later that same day he viewed a lineup at the police station at which time he identified defendants as the culprits.

On cross-examination, he testified that 5 to 7 minutes elapsed from the time he heard the noise until the first man emerged from the apartment; it was difficult to gauge the time as he did not have a watch. One offender was 5'6" or “something” and the other was 6'4" or “something.” He saw no weapons. Defendants changed their clothes and hair styles between the time he viewed the lineup and the time the lineup was photographed. On redirect examination, Pearce testified that he identified defendants at the lineup by their faces rather than their clothing.

Officer Munkvold’s testimony at trial supported his earlier testimony at defendants’ suppression motion. The trial court held that the cross-examination of Officer Munkvold by defense counsel implied that no weapons were found in defendants’ apartment at the time of their arrest and “opened the door” to the suppressed handguns, which were then admitted into evidence. Munkvold was then permitted to testify on redirect examination that the search of defendants’ apartment revealed a blue steel revolver loaded with a clip of .25-caliber bullets. On re-cross-examination, Officer Munkvold testified that neither $2,000 nor a sawed-off shotgun was recovered pursuant to the search.

The victim was recalled and testified that the .25-caliber blue steel revolver was the same weapon that was held at her head by defendant Bailey, based upon its size and color. She “got a good look” at the weapon at the time of the incident. On cross-examination her testimony at the preliminary hearing the day after the incident was read to her where she stated, “I don’t know whether it was a .32 or a .45. I wasn’t looking that well.” She stated that she could have made the first statement, but not the second one.

Other evidence adduced by the State was either cumulative or otherwise of little aid to the decision and need not be set forth.

Defendant Bailey took the stand and denied having robbed the victim. On the morning in question he slept in an apartment on Quincy Street until 11 or 11:30 a.m. Sometime after 12, he purchased some wine and for the first time that day he saw defendant Payne, either in a pool hall or outside. Payne was not carrying a weapon. Bailey described himself as 5'10" tall and weighing 158-160 pounds. He was not aware of a gun located in the refrigerator before the police seized it that afternoon.

The parties stipulated that if Chicago Police Officer R. Ugorek were to testify, he would state that he spoke with the victim at her apartment shortly after the incident, and that she told him a tall man put a shotgun to her head.

The jury found both defendants guilty of armed robbery, armed violence and burglary. Defendants’ post-trial motions were denied and defendants were thereafter sentenced as first noted in the opinion.

I

Defendants argue that their arrests were made without probable cause and therefore were illegal because they were based on hearsay information. Hearsay from an anonymous informer can be sufficient by itself to support a finding of probable cause (People v. Williams (1963), 27 Ill. 2d 542, 190 N.E.2d 303), provided there exists a “substantial basis” to support the credibility of the hearsay declarant (People v. Lindner (1975), 24 Ill. App. 3d 995, 997-98, 322 N.E.2d 229). The “substantial basis” standard is bottomed upon a two-pronged test. In the first prong, the State must show the underlying circumstances establishing the reliability or credibility of the anonymous informer and, in the second, the underlying circumstances which establish the reliability of the informer’s conclusions that the defendants were engaged in criminal activity (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514; People v. Garcia (1981), 94 Ill. App. 3d 940, 945, 419 N.E.2d 542) in order to demonstrate the existence of probable cause for a warrantless arrest. People v. Saiken (1971), 49 Ill. 2d 504, 511, 275 N.E.2d 381, cert. denied (1972), 405 U.S. 1066, 31 L. Ed. 2d 796, 92 S. Ct. 1499.

Defendants maintain that the State failed to establish either the reliability of the anonymous informant or any underlying circumstances upon which his conclusions were based. The State responds that the informant in the instant case was a citizen-informant, although the record is barren of any facts supporting this conclusion. Officer Benigno did not check to see whether the informant had a criminal record; whether he lived in the neighborhood of the crime or how he happened to be there. Benigno had never talked with him before or after November 8, 1978. There is thus no basis in the record upon which to invoke the citizen-informant exception recognized as credible or reliable under People v. Hester (1968), 39 Ill. 2d 489, 513-14, 237 N.E.2d 466.

Assuming, arguendo, that the veracity of the informant prong of Aguilar had been satisfied, the basis of the knowledge prong had not. Officer Benigno was unable to provide the source of the informant’s knowledge. There was no testimony whatsoever as to the few facts upon which the informant based his conclusion; or how those facts were obtained; or, if the knowledge came through some other person, who that person was and what his relationship, if any, to the crime had been. Benigno could only state the informant was not an eyewitness and that he “assumed” or got the “distinct impression” that the informant received his information from defendants themselves. Although the State argues that this branch of the test was satisfied because of the information regarding defendants’ physical characteristics and the details of the crime, which were corroborated by other witnesses, Benigno never testified to any details of those characteristics. (See People v. Talley (1975), 34 Ill. App. 3d 506, 509-10, 340 N.E.2d 167.) In the absence of evidence indicating the method by which the information was secured, it is particularly important that the informant describe the accuseds’ criminal activities in sufficient detail so that the tribunal knows it is relying on something more substantial than a casual, circulating rumor or an accusation based merely on their general reputation. (Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 588.) The description of the armed robbery which the informant revealed here lacked sufficient detail upon which to satisfy the “basis of knowledge” Aguilar requirement. The arrests were thus made without probable cause.

Defendants argue that the warrantless arrests of defendants in Bailey’s home were illegal also because no justifiable exigent circumstances existed, relying upon Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Payton held that the fourth amendment prohibited police from nonconsensual and warrantless entries into a suspect’s home for purposes of effectuating an arrest absent any exigent bases. Since we hold that the arrests were illegal as having been effectuated without probable cause, no application of Payton principles need be made to the instant circumstances.

II

It is next maintained by the defense that all testimony concerning the identifications of defendants at the lineup and in court should be excluded as the tainted fruit of the illegal arrests. Citing Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, and Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, they assert that the lineup and in-court identifications were obtained by exploiting the primary illegality, the unlawful arrests, rather than through any independent means purged of the primary taint. Because we find the presence of independent bases for the in-court identifications of defendants, there is no necessity to consider the effect of the illegal arrests upon the lineup identifications. In United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244, the Supreme Court held that in-court identification need not be suppressed as the fruit of an unlawful arrest when the victim’s independent recollections of an offender preceded the unlawful arrest and were thus untainted by a constitutional violation (445 U.S. 463, 473, 63 L. Ed. 2d 537, 547, 100 S. Ct. 1244, 1251; see also People v. Dangerfield (1979), 78 Ill. App. 3d 1046, 1050, 398 N.E.2d 57). Several factors must be considered in ascertaining whether there is an independent origin for an identification which Crews, 445 U.S. 463, 473 n.18, 63 L. Ed. 2d 537, 547 n.18, 100 S. Ct. 1244, 1251 n.18, citing Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, described as including: (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness’ degree of attention at that time; (3) the existence of any discrepancy between any pretrial description and the defendant’s actual appearance; (4) the lapse of time between the crime and the confrontations; (5) any identification of another person prior to the lineup; and (6) the failure to identify the defendant on a prior occasion.

Applying these factors to the evidence in the record, it is apparent that the in-court identification of defendants by the victim and Claud Pearce were properly admitted into evidence. First, the victim and witness each had a clear opportunity to view the offenders at close range during and after the incident. Defendants were in the victim’s apartment for approximately 20 minutes. Her vision was unobstructed for about 75% of that time. Both defendants were seen by Pearce outside the apartment as he stood across from the hallway door. Second, the victim was an interested witness. She had reason to scrutinize the faces of the offenders with some amount of care and attention. Pearce was drawn to the scene by the noise of the breakin of an apartment in a building which he served as janitor. Third, the descriptions that the victim and Pearce provided the police, as described by Officer Benigno, sufficiently conformed to the actual physical appearances of defendants Payne and Bailey. They described one intruder as male Negro, 6' tall, light skinned, 130 pounds, and 21 to 25 years of age. The arrest report indicates that on the day of the home invasion that offender was a male Negro 29 years old, 6'1", weighed 150 pounds and was of medium complexion. The other assailant was described by the victim and witness as a male Negro, 5'5" to 5'7", 125 pounds, dark complexioned, and of stocky build. The arrest report indicates that on the date of the crime he was shown as a male Negro, 5'9", 170 pounds and medium complexioned. Although the descriptions did not fit defendants’ actual appearance with utter precision, discrepancies of this nature to not compel the conclusion that they lacked an independent basis for the in-court identification. Fourth, only nine or 10 hours had elapsed between the armed robbery and the victim’s and witness’ lineup identifications of defendants. Fifth, neither the victim nor the witness identified any other persons as the assailants at any prior time. Finally, neither failed to identify defendants on any prior occasions. From the foregoing, it must be concluded that the in-court identifications were based upon their opportunities to observe the offenders during and after the home invasion and were not the result of exploiting the illegal arrests. The identifications were based upon circumstances sufficiently distinguishable from the arrests so as to be purged of any taint resulting therefrom.

III

Defendants assign error in the admission in evidence of the gun, which had been previously suppressed. Defendants maintain that their cross-examination of Officer Munkvold could not have formed the basis for the admission in evidence of the blue steel revolver, as held by the trial court, and they were prejudiced both by the redirect testimony of Munkvold pertaining to the fruits of the search and by the admission of the gun itself into evidence. The cross-examination held to have “opened the door” to the suppressed evidence consists of the following colloquy:

“[DEFENSE COUNSEL]: Officer Munkvold, at the time of the arrest of Mr. Bailey and Mr. Payne, they were searched, were they not?
[ASSISTANT STATE’S ATTORNEY]: Objection.
[THE COURT]: Sustained
[DEFENSE COUNSEL]: Basis?
[ASSISTANT STATE’S ATTORNEY]: In fact, I’ll withdraw the objection.
[THE WITNESS]: Yes, they were.
[DEFENSE COUNSEL]: Was the apartment searched?
[THE WITNESS]: Yes, it was.
[DEFENSE COUNSEL]: Thank you. That’s all.”

Defendants’ trial counsel argued that the purpose of that particular question on cross-examination was to leave the inference that the proceeds of the burglary were not found on defendants’ premises: “I have a perfect right to indicate to the jury, or make an inference that none of those proceeds were found 000 [and] that those items weren’t found.”

A defendant cannot object if he “procures, invites or acquiesces in the admission of evidence, even though it be improper.” (People v. Burage (1961), 23 Ill. 2d 280, 283, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651.) When a defendant implies to a jury the absence of suppressed evidence in furtherance of his defense, the State may properly introduce that evidence in contradiction of such an inference. (See, e.g., United States v. Havens (1980), 446 U.S. 620, 626-28, 64 L. Ed. 2d 559, 565-67, 100 S. Ct. 1912, 1916-17.) The trial court was correct in holding that defendants’ cross-examination implanted improper inferences in the minds of the jurors. The jurors, upon hearing Officer Munkvold testify that a search was conducted at defendants’ apartment without ascertaining the results of that search, could well have been left with the inference that no evidence was found, just as defense counsel intended.

The defense maintains, arguendo, that if the cross-examination of Munkvold indeed opened the door, nevertheless the problem could have been adequately resolved by utilizing less drastic means such as striking the questions and admonishing the jury to disregard them, or striking the two general questions and allowing defendants’ counsel to ask the other specific questions concerning whether a shotgun or $2,000 was found. Both of defendants’ “solutions,” of course, would also have served to heighten the inaccurate implications of the defendants’ cross-examination. We find no error in the trial court’s ruling in this regard.

IV

It is urged by defendants that they were not proven guilty beyond a reasonable doubt because the testimony of the eyewitnesses was unclear and contradictory. Defendants’ contention that the victim’s in-court identification is highly unreliable is not borne out by the record. The victim’s testimony, recounted previously, identifying defendants as the offenders who broke into her apartment was consistent throughout the trial, although at times her collateral testimony was contradictory and confusing. Such discrepancies in her testimony as may have appeared were insufficient to destroy her credibility.

Defense counsel also would impeach the in-court identification of the revolver by the victim’s remarks at the preliminary hearing to the effect that she was uncertain of the caliber of the gun because she “wasn’t looking that well.” Those remarks did not destroy her testimony at trial, that “[t]o my knowledge this is the gun, or one just like it.” Defendants’ attack on the credibility of Pearce, claiming that he lacked an adequate opportunity to observe the intruders and that the descriptions he gave the police differ markedly from the actual physical appearances of defendants, were also previously considered and rejected above.

There was sufficient evidence in the record to support the jury’s verdict of guilty. A reviewing court cannot substitute its judgment of credibility for that of the trier of fact. People v. McLaren (1979), 77 Ill. App. 3d 368, 372, 395 N.E.2d 1219.

V

Defendant Bailey next contends that his conviction for armed violence should be reversed because he was never charged with that offense. We concur. Count 3 names only Payne and makes no mention of Bailey within its allegations. Further examination of count 3 reveals that the word “he” was originally typed and that some unknown person at some undisclosed time added the letters “t” and “y” in handwriting to form the word “they.” For all practical purposes, the word “they” contained in count 3 must be ignored. Contrary to the State’s argument, the caption of the information naming both Bailey and Payne, coupled with the word “they” in count 3, fails to imply that Bailey was also charged with that particular offense. Standing alone, the caption of the information naming both Payne and Bailey cannot reasonably be construed to mean that both defendants are charged in every count regardless of whether their names actually appear in the count.

The State maintains that defendant waived his right to raise this issue on appeal by failing to draw the trial court’s attention to the information and by failing to raise the issue in his written motion for a new trial. A criminal defendant may appeal the sufficiency of the information for the first time on appeal, however. (People v. Greene (1968), 92 Ill. App. 2d 201, 235 N.E.2d 295. See also People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) Bailey’s conviction for armed violence must therefore be reversed.

VI

Error is next identified in that the third count of the information charging Payne with armed violence is defective because it fails to set forth the elements of the underlying felony, burglary. Conceding that count 3 refers to the felony of burglary as defined by Illinois Revised Statutes 1977, the defense insists that the reference is inadequate because the statute defines “burglary” in two different ways — unlawful entry or the act of unlawfully remaining within — either of which could constitute the offense. (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a).) Thus, it is argued, defendant Payne allegedly was forced to speculate upon which particular act, an unlawful entry or an unlawful remaining within, formed the basis of the charge.

The State responds that defendants were properly charged in count 3 because any ambiguity created in that count was remedied by a reading of the information as a whole. Count 2 alleged that defendants committed burglary in that they “without authority, knowingly entered into a building.” Thus the elements of the burglary charged were articulated in the count which directly preceded the count charging armed violence based on burglary. In determining the sufficiency of a charging document, the entire complaint may be examined. (People v. Williams (1967), 37 Ill. 2d 521, 524-25, 229 N.E.2d 495.) The charge here was sufficient. Strict compliance with the express requirements of section 111 — 3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 111 — 3(a)) is not required when the adequacy of the information is for the first time argued on appeal. The failure to allege an element of the offense does not render it per se void when attacked at such time. The armed violence charge, when read in this context, sufficiently informed defendant Payne of the precise offense alleged and permitted him to prepare an adequate defense. People v. Pujoue (1975), 61 Ill. 2d 335, 339.

VII

Defendants contend that the burglary conviction should be reversed, since it is the lesser included offense of armed violence based on the underlying felony of burglary, citing People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, for the following general proposition: “Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.” Defendants first argue that the evidence at trial established only one physical act of burglary. The King mandate was violated because more than one offense, i.e., burglary and armed violence, were “carved from the same physical act.” Defendants rely upon People v. Welte (1979), 77 Ill. App. 3d 663, 396 N.E.2d 315. No discussion of this issue is set forth in Welte. Analytically, defendants’ position cannot be sustained. As the language of section 33A — 2 makes abundantly clear, two acts rather than just one are involved in the offense of armed violence: one being the commission of a felony, i.e., burglary, and the second being armed with a dangerous weapon while committing the act. See People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627; People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281; People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29; People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820. Contra, People v. Simmons (1981), 99 Ill. App. 3d 519, 425 N.E.2d 1168; People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, appeal allowed (1981), 85 Ill. 2d 562.

In the alternative, defendants contend that even if the convictions for burglary and armed violence derive from several acts, the rule enunciated in People v. King concerning multiple acts supports their contention that burglary is a lesser included offense of armed violence. A similar issue was raised in People v. Lynom, wherein the defendant there sought to have the charge of voluntary manslaughter considered a lesser included offense of the charge of armed violence. In Lynom (97 Ill. App. 3d 1083, 1120-21), this court considered the recently decided cases of People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620, and People v. Haron, in which we noted the supreme court’s conclusion that the rule it had promulgated in King did not preclude multiple convictions upon multiple acts and the imposition of concurrent sentences based upon them (People v. Myers (1981), 85 Ill. 2d 281, 288), and that if the predicate offense is a felony by statutory definition when committed without possession or use of a dangerous weapon, such an offense may support a second charge, armed violence, when committed with possession of such a weapon. People v. Haron (1981), 85 Ill. 2d 261, 278.

The charge of burglary in the instant case is a felony. (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(b).) It may be committed without possession or use of a dangerous weapon. When defendants utilized a handgun and sawed-off shotgun in the commission of this crime, their acts became amenable to the provisions of the armed violence statute. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 1, 33A — 2.) Under these circumstances, burglary cannot be deemed a lesser included offense of armed violence since the offense of burglary requires proof of elements that are not required for the offense of armed violence. (See People v. Myers (1981), 85 Ill. 2d 281, 286-88; People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289; People v. Vriner (1978), 74 Ill. 2d 329, 346-47, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) See also Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180; Gore v. United States (1958), 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280; Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.

For the foregoing reasons, we must affirm defendants’ burglary and armed robbery convictions; affirm the armed violence conviction as to defendant Payne; and reverse the armed violence conviction as to defendant Bailey.

Affirmed in part, reversed in part.

PERLIN, J., concurs.

JUSTICE DOWNING,

concurring and dissenting in part:

I agree with the disposition of this case made by the majority opinion except as to part VIL I dissent from the conclusion reached therein, which holds that defendant Payne was properly convicted of both burglary and armed violence based upon the underlying felony of burglary.

A.

Defendant Payne’s first argument on this issue is that his convictions for both of these offenses violate the “one act-one crime” rule of People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. He bases this argument on his claim that he committed only one physical act which could serve as the basis for the armed violence charge. The majority opinion rejects this contention on the theory that “the language of section 33A — 2 makes abundantly clear [that] two acts rather than just one are involved in the offense of armed violence: one being the commission of a felony e 0 * and the second being armed with a dangerous weapon while committing the act.” (First emphasis theirs, second emphasis added.)

I have carefully examined the language of section 33A — 2 (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2), and cannot agree with the majority’s reasoning. In my opinion, the crime of armed violence consists of only a single criminal “act” (that act being the commission of the underlying felony), which is aggravated by the presence of a “dangerous weapon.” In enacting the armed violence statute, the General Assembly’s intent (as I interpret it) was simply to provide a greater penalty against those defendants who chose to possess a dangerous weapon during the commission of a felonious criminal act of some type. The legislature did not, in my opinion, determine that possession of such a weapon in and of itself was a distinct criminal act to be dealt with under the armed violence provision. Rather, it determined that the degree of criminality inherent in the underlying, prerequisite act (being another felony defined at law) was greater when that act was accompanied by the mere presence of a dangerous weapon.

To me, the element of the dangerous weapon contained in the armed violence provision can be analogized to the aggravated battery statute (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4). When a person commits a battery as defined by law (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 3) while using a deadly weapon, he has committed aggravated battery (par. 12 — 4(b)(1)), an enhanced penalty crime. Yet, it cannot logically be said that that person has committed two distinct physical King “acts,” each of which could support a different conviction without violating King. Instead, that person has committed a single criminal act, battery, which is aggravated by the use of a deadly weapon and becomes the crime of aggravated battery. Nevertheless, under the reasoning of the majority opinion, such a person would have committed two such acts: battery (i.e., intentionally causing great bodily harm, let us say) and use of a deadly weapon, each of which could, under the majority’s theory, support a separate and concurrent conviction. I believe that King would be violated in such circumstances, and similarly is violated under the majority’s analysis of defendant Payne’s situation.

For these reasons, I must strongly disagree with the majority’s conclusion that the King “one act-one crime” rule was not violated here with regard to defendant Payne.

B.

Additionally, I am convinced that the majority wrongly decided defendant Payne’s alternative contention that in this case, burglary is a lesser included offense of armed violence. A corollary, in a sense, of the King “one act-one crime” rule is that a defendant is prejudiced where he is convicted of two offenses, one of which is by definition a lesser included offense of the other. (People v. King (1977), 66 Ill. 2d 551, 566.) A lesser included offense is one of which all the elements are included in the greater offense (People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289); one which is established by proof of the same or less than all of the elements of the greater offense (Ill. Rev. Stat. 1977, ch. 38, par. 2—9).

The majority concludes that burglary, as charged in the instant case, is not a lesser included offense of armed violence. I note again that the armed violence charge against defendant Payne was based upon the underlying felony of burglary, that burglary having been committed while Payne was armed with a dangerous weapon. It is obvious to me that the elements of burglary (knowingly and without authority entering and remaining in, inter alia, a building with the intent to commit therein a felony or theft) (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1), must all be proved here before Payne could be convicted of the crime of armed violence based upon that burglary. I fail to see those “elements [of burglary] that are not required for the offense of armed violence [based upon burglary]” which the majority relies upon in determining that the multiple convictions can stand. The Illinois cases cited by the majority do not, in my opinion, give any support to the majority’s conclusion. In People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, the defendant was properly convicted of armed violence based upon aggravated battery and of attempted murder. As the supreme court noted, the elements of these two crimes are different. In People v. Smith (1980), 78 Ill. 2d 298, the defendant was properly convicted of robbery and intimidation. As the supreme court noted, these crimes have different elements, and thus intimidation could not be a lesser included offense of robbery. In People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858, the defendant was properly convicted of armed violence based upon intimidation and of unlawful use of weapons. As the supreme court noted, the elements of these two crimes are not the same. In contrast, here the State must prove all the elements of burglary plus the fact that that crime was committed while armed with a dangerous weapon in order to convict defendant Payne of armed violence. Thus, burglary is a lesser included offense of armed violence here. Consequently, Payne’s conviction for burglary should be reversed. I believe the majority erred in finding to the contrary.

       “Act” is defined in King as “any overt or outward manifestation which will support a different offense.” 66 Ill. 2d 551, 566.

       The General Assembly had already provided that certain modes of possessing certain types of weapons were illegal. See Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1.


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIP O’SHAUGHNESSY, Defendant-Appellant.
    First District (4th Division)
    No. 79-873
    Opinion filed December 23, 1981.

      David C. Thomas, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Christine A. Campbell, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Defendant Kip O’Shaughnessy was charged by indictment with armed robbery and aggravated kidnapping. A jury acquitted him on the charge of aggravated kidnapping but returned a guilty verdict on the charge of armed robbery. Defendant was subsequently sentenced to an indeterminate term of four years to four years and one day.

On appeal defendant contends: (1) the State failed to establish beyond a reasonable doubt that he had the specific intent to permanently deprive the victim of the use or benefit of his property; (2) the trial court erred in permitting a State instruction which informed the jury that witnesses who are narcotics addicts become notorious liars; (3) the trial court erred in allowing a State instruction on the defense of drugged condition which restated in different language an instruction which had already been given and which incorrectly stated the law; (4) the trial court abused its discretion by allowing the State to introduce evidence of defendant’s prior robbery conviction. We affirm.

At trial the following pertinent evidence was adduced. On May 15, 1975, at approximately 3 a.m. Dennis Tolen was driving southbound on Cicero Avenue in Cicero, servicing stops on his work route. He noticed that a car began following him at 18th Street and continued to follow him when he turned left at 31st Street. When Tolen stopped at a red light the other car stopped behind him, its lights were extinguished, and a man identified by Tolen in court as the defendant got out of the car. Defendant walked up to Tolen’s van, opened the door, and announced a robbery. He had a knife in his hand, and as he entered the van he told Tolen not to do anything foolish. According to Tolen defendant also had a pistol in his belt. Defendant directed Tolen to drive the van in circles in the area. Tolen drove in this manner for about half an hour. During this period defendant asked Tolen for money and received from him about $150, which he placed in his pocket. He also took a calculator from the van and a number of credit cards from Tolen’s wallet, which he returned after taking the cards. According to Tolen defendant had the knife out during the entire incident. For 15 or 20 minutes after having taken Tolen’s property, defendant kept insisting that there was more money in the van as well as a safe. He rummaged around the front of the van, at one point eating a sweet roll he found and declaring it to taste “lousy.” Finally when Tolen stopped for a stop sign defendant told him to keep heading south, not to do anything foolish, and then jumped off the van.

Tolan drove several blocks until he saw a police car, which he stopped. He informed the police officers of the robbery, describing defendant and his vehicle to them. Tolen then accompanied the officers in their car in search of the defendant. He observed defendant’s car, which was then traveling within the speed limit. The police car pulled behind it, signalling for it to stop. Defendant’s car sped away, and a high speed chase ensued. At one point defendant’s car weaved in between two trucks. Finally defendant made a right turn and then a sharp left turn into an alley. When the police car arrived Tolen saw the defendant walking about 30 feet away from his car.

The two police officers who accompanied Tolen testified that defendant was then told to stop but instead ran through a gangway. He was chased until he climbed the 12-foot fence of a car dealership and hid under one of the cars. One of the officers told him to come out and climb back over the fence and he did so. Four credit cards and $160 in cash were found on his person. Defendant stated that he did not know where the cards came from, but that he had won the money shooting dice. A hunting knife and four credit cards were found in his car. One of the officers also recovered a calculator in the gangway, where they had seen something fall from his pocket during the chase. One officer did not believe defendant to be intoxicated, but the other testified that when he observed defendant at the police station he appeared slightly intoxicated; his eyes were bloodshot and his speech was slightly slurred.

Testifying in his own behalf, defendant stated that he was 24 years old at the time of trial. He was working as a driver for a trucking company. Before taking that job he had driven a garbage truck for a scavenger company for one year. He left that job because his work interfered with his church obligations. In June 1974 defendant had pleaded guilty to a charge of robbery. In November 1974 he was released to a work-release center. He stayed there until March 1975, when he found work and was paroled.

Defendant testified that because of tensions at home he then left his wife and child and stopped working. He began to socialize with friends he had known from before his incarceration. By April 1975 he was regularly drinking and taking drugs; he used his savings to buy drugs daily. Defendant testified that he used “downers,” acid (LSD), marijuana, and THC. The quantities of THC he used increased until May 14, 1975, the day before the occurrence. That day he “snorted” THC in the morning and could not recall his activities of the day. At about 9 p.m. he went to a party where he drank some beer and took about one-fifth to one-sixth of a gram of THC. This was the largest dose he had ever taken. He also smoked some marijuana sprinkled with THC and took two tuinals (a depressant).

Defendant testified that as a result of these drugs he found it very difficult to converse, he was groggy, could not move fast, and could not see well. The next thing he remembered was being at his apartment where he went to bed but could not sleep. He then recalled driving south down Kostner (although Tolen had recalled the street as Cicero). At 28th Street he saw a van driving in front of him. The van turned east on 31st Street and he followed it. At a stoplight at 31st and Pulaski he got out of his car, walked to the van, knocked on the door, and opened it. He asked the driver for directions. The driver asked him to let him cross the intersection with the green light, so defendant stepped in the van. Defendant testified that he had a hunting knife in his hand at some point during the occurrence but could not recall if it was in his hand when he first approached the van. As the driver stopped on the other side of the intersection defendant announced a robbery and asked the driver for money. He also recalled asking for a wallet and seeing some credit cards in it. He may have seen a calculator in the van but did not recall later dropping it. Defendant was given some money by the driver; he then gave the man directions on where to drive. He testified on direct examination that he did not know what his intentions were and that he did not intend to take the driver away or to hide or conceal him. However on cross-examination defendant testified that he “assumed” he intended to take money from the driver when he announced the robbery. He also testified that when he asked the driver for money he “guessed” he intended to take the money from him and when he asked for the wallet he “assumed” he intended to take anything that was in the wallet.

Defendant went back to his car and began driving. When he saw the police he fled, but did not recall driving between two trucks. He stopped the car and ran. He then recalled being in a fenced-in area where he went under a car. The police told him to come out from under the car and climb back over the fence, which he did. He did not recall the officers taking credit cards from him nor could he recall what he did with the knife. The police had taken money from his pocket and at the station he saw the knife, credit cards, and a calculator. He recalled telling the police his name, describing his car, and giving them his license number. He was able to talk and to walk although he did not recall walking into the police station or the lock-up. He did remember climbing at least one fence while being chased by the police. At the station defendant attempted not to act “high” because this would get him into more trouble.

Later that day defendant saw his wife at the station. At this time he felt confused and did not fully understand why he was there. He knew he had been in the victim’s van but did not connect this with his incarceration.

Defendant further testified that he was released from jail in September 1975 and had worked as a painter and painter’s helper. After leaving jail he lived with his child, wife, and wife’s parents. He had never again used drugs and no longer drank.

Defendant’s wife testified that in April 1975 she had seen defendant with his eyes glazed and blurred and his speech slurred. He was argumentative and belligerent. Earlier she had seen him smoking marijuana and taking tuinals and “speed.” On prior occasions she had seen him taking THC and smoking marijuana and the result was to make him jumpy, argumentative, and so fast-talking she could not make full sense of his words. On other occasions after April 1975 she saw him under the influence of drugs again. He would drive his car recklessly, weaving in and out of traffic, speeding, and would be argumentative and loud.

On May 15,1975, she saw her husband in the police lock-up at about 5:30 p.m. He told her he was accused of a crime but did not know what the police were talking about. He could not remember why he was there.

Defendant’s wife confirmed that at the time of trial he was supporting his family by working as a truck driver. Before that he had worked for a year as a garbage-truck driver.

John Navarro testified that he attended the same party as defendant. The defendant drank beer, smoked marijuana, and “snorted” what Navarro believed to be “angel dust,” which he also knew as THC. Defendant also took some pills which Navarro thought were “downers.” Defendant appeared to be intoxicated, he staggered when he walked, he did not seem aware of what was going on, and mainly stayed by himself in a corner of the room. On cross-examination Navarro admitted that he too used marijuana and THC that night. He had taken those drugs before the party as well. Since the time of the party he had used them “maybe once or twice.”

Dr. David Spira, a physician and psychiatrist who served as a consultant to a medical center for heroin addicts, testified that as a result of his training and work experience he was familiar with the behavioral effects of legitimate drugs prescribed by physicians and “street drugs,” drugs procured illegally. He testified that the medical term THC refers to tetrahydrocanabinol, the active ingredient in marijuana. However the street drug purporting to be THC was rarely tetrahydrocanabinol, but instead was Phencyclidine, or angel dust. He also testified that often up to 50% of so-called THC was actually angel dust. The effect of angel dust on the person, according to Spira, is dependent on the personality of the person and the quantity ingested. The quantity also depended on the purity of the drug sold. If a significant dose, 5/1000 to 10/1000 of a gram of pure angel dust, is ingested a person’s personality has the potential to intensify. A person could become more agitated or more seclusive. A person’s judgment could become affected; he could experience hallucinations, amnesia, agitation, anxiety, and disorientation. However it is impossible to ascertain with certainty what effect the drug will have on any one person.

Dr. Spira heard a hypothetical statement of facts based on defendant’s testimony of his drug intake, state of mind, and behavior. Spira testified that if the drug was angel dust, the person in the hypothetical statement acted in a manner consistent with the effects the drug could cause.

Defendant also presented a number of character witnesses. Reverend George Ozdinec testified that he had known defendant over two years. Defendant had joined Ozdinec’s church with his wife. Defendant had the reputation of being a person who behaved and was truthful. Three members of the church congregation also testified that defendant had a reputation for truthfulness and honesty in the community.

I

At the time of trial the law in Illinois was that the specific intent to permanently deprive a person of his property was an element of the crimes of robbery and armed robbery. (People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 337, overruled by People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244.) The jury in this cause was so instructed. The sole defense presented by defendant was that his voluntary drugged condition at the time of the occurrence was such as to negátive that specific intent. (Ill. Rev. Stat. 1979, ch. 38, par. 6 —3(a).) On appeal defendant contends that the evidence he presented was sufficient to raise the defense and the State then failed to meet its burden of overcoming it with proof beyond a reasonable doubt. Ill. Rev. Stat. 1979, ch. 38, par. 3—2; People v. Jones (1978), 67 Ill. App. 3d 477, 384 N.E.2d 523.

We find no merit to this contention. In order to constitute a defense to a criminal charge the condition of being intoxicated or in a drugged condition must be so great as to suspend all reason, thus rendering the defendant incapable of any mental act such as forming the specific intent to commit the crime. (People v. Jones (1978), 67 Ill. App. 3d 477, 384 N.E.2d 523; People v. Hayes (1976), 37 Ill. App. 3d 772, 347 N.E.2d 327.) But in this cause the defendant by his own testimony negated the defense. He testified that when he announced the robbery and asked for the victim’s money and wallet he intended to take that money and the contents of the wallet. Thus by his own admission at trial he had possessed the requisite specific intent despite his drugged condition.

II

Defendant also contends that the trial court erred when it instructed the jury that:

“The testimony of a person who is a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.”

We agree with defendant that this was error. The instruction was not based on evidence adduced at trial and thus should not have been given. (People v. Mitchell (1975), 34 Ill. App. 3d 311, 340 N.E.2d 226.) There was no evidence that defendant or John Navarro, the only two witnesses to whom the instruction could have been construed to apply, were narcotics addicts at the time of trial. No evidence was presented that defendant used any drugs after the date of the occurrence and Navarro testified only that since that time he himself might have used marijuana or THC “once or twice.” Furthermore, to the extent that the instruction could be construed as referring to the defendant, it gave undue emphasis to the issue of his credibility and on that additional ground should not have been given. (People v. Smith (1979), 69 Ill. App. 3d 704, 387 N.E.2d 901.) Because of these findings we do not reach the question of whether such an instruction would ever be proper. But despite our finding that the instruction was erroneously given, we do not find that defendant was prejudiced by it. As we have noted, defendant not only admitted committing the physical acts establishing armed robbery, his own testimony also established that he possessed the requisite intent when he committed them. The evidence of his guilt was overwhelming and the omission of the instruction would not have affected the jury’s verdict; accordingly we will not reverse defendant’s conviction because of that error. People v. Tribbett (1968), 41 Ill. 2d 267, 242 N.E.2d 249; People v. Blackman (1976), 44 Ill. App. 3d 137, 358 N.E.2d 50.

III

The jury was also instructed that:

“A drugged person is criminally responsible for his conduct unless his drugged condition renders him incapable of acting intentionally.”

Additionally, over defense objection, they were instructed that: Defendant contends that it was error to offer this repetition of the prior instruction. But although repetitive instructions are not favored and should be avoided (People v. Griswold (1968), 100 Ill. App. 2d 436, 241 N.E.2d 212), we find no basis for reversal on this ground alone. Nor do we agree with defendant’s contention that the second instruction improperly shifted the burden of proof on that issue to him. The instruction was drawn directly from the applicable statute. (Ill. Rev. Stat. 1979, ch. 38, par. 6—3(a).) Moreover the jury instruction on armed robbery informed the jury that the State had the burden of proving that defendant was capable of acting intentionally at the time of the occurrence. Thus, taken as a whole, the instructions to the jury did not tend to mislead them as to the burden of proof and we find no prejudice arising from the giving of the second instruction on the defense.

“Intoxication or drugged condition is a defense only if it negatives the existence of the mental state which is the element of the offense.”

IV

Finally defendant contends that the trial court abused its discretion by allowing the State to introduce evidence of his prior conviction for robbery. Prior to trial defendant made a motion in limine to exclude evidence of the conviction. At the hearing on the motion the defendant was permitted to introduce the transcript of testimony heard before another judge on his bond hearing. This testimony was elicited from defendant’s wife, his parole officer, a social worker, and two members of his church congregation. Their testimony indicated that defendant had previously been convicted of robbery and had served nine months in the penitentiary. He was released in February 1975 but was arrested again May 15 of that year on the charges at issue in this cause. During that period defendant was using drugs and alcohol. He was released on bond in September 1975. At that time he became associated with the Bethany Tabernacle Church, where he attended church functions every day of the week. He found work and used the income to support his wife and child, with whom he again began to live.

At the hearing on defendant’s motion the trial judge was also informed that defendant had not been arrested since the bond hearing and was currently employed. The court denied defendant’s motion but noted that defendant would be permitted to examine all the witnesses he wished at trial to rehabilitate himself after any State impeachment. Immediately before defendant testified at trial the motion was renewed and was again denied by the court.

As our summary of the trial evidence establishes, defendant was permitted at trial to introduce substantial evidence of rehabilitation. The jury was informed that he no longer drank or used drugs, he was working steadily, supported his family, and had a good reputation for truth and honesty in his community. Defendant cites only two instances in which the court restricted this testimony: he was not permitted to testify how he obtained his employment and was not permitted to state whether he still associated with the people with whom he had associated before being arrested. In the context of all the evidence that he was permitted to present concerning his rehabilitation we do not find these limitations significant.

The trial judge is afforded considerable discretion in determining whether evidence of a prior conviction which may be introduced should in fact be allowed into evidence. (People v. Evans (1981), 92 Ill. App. 3d 874, 416 N.E.2d 377; see People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Here the defendant had been released from custody within four years of trial, a period well within the 10-year limitation on such evidence. Although the prior conviction was for a similar crime, the prejudicial effect of this fact was minimized by the fact that defendant did not deny committing the acts alleged in the charge of armed robbery at issue. Moreover the trial judge afforded defendant broad latitude in introducing evidence at trial concerning his claimed rehabilitation. Accordingly, we do not find that the trial court abused its discretion in denying defendant’s motion.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.