author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK ANDREW GOSSETT, Defendant-Appellant.
    Second District
    No. 81—558
    Opinion filed June 24, 1983.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Mark Andrew Gossett, was charged by amended information in Winnebago County with four counts of murder for the slaying of Sylvia Ann Davis. (Ill. Rev. Stat. 1981, ch. 38, pars. 9— 1(a)(1), (2).) A jury convicted him of the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2), and the trial court sentenced him to the Department of Corrections for seven years.

He appeals, contending he was denied a fair trial because (1) the court refused to allow him to present testimony as to specific acts of violence of the deceased where his defense at trial was self-defense, and (2) because the court admitted in evidence a plastic head and mouth-and-throatpiece from an inflatable adult doll which was unrelated to the offense.

It was established at trial that the manslaughter victim, Sylvia Ann Davis, was a prostitute. Davis and another prostitute, Ora Jean Flint, encountered the defendant while they were driving on South Main Street in Rockford at about 1 a.m., on January 13, 1981. The defendant was driving a GMC Suburban van, which belonged to a friend, Robert Ricks. Flint testified that Davis, also driving a van, asked the defendant if he wanted a “date”; he did, and they agreed on a price of $20 for an act of intercourse. The defendant declined Flint’s offer to join them, saying he was tired and had to work in the morning. Davis then went with the defendant in his van.

The defendant testified he and Davis shared a “joint” during the short drive to the defendant’s trailer. She sat very close to him in the van, and he gave her the $20 from his wallet when she got in. He had cashed a check for $100 earlier that afternoon and still had about $90 when he gave her the $20. The defendant said he had consumed approximately 13 beers between the time he left work at noon on January 12 and 1 a.m. when he met Davis. He described himself as being ‘ ‘ semi-intoxicated. ’ ’

Defendant testified he and Davis attempted to have intercourse for about half an hour, but that he was unable to achieve an erection and that he passed out. When he awoke, he saw her take his wallet from his pants, which were hanging near the bed. He told her to “get out of there” and lunged at her, knocking the wallet to the floor. She picked up a baseball bat that was leaning against the gun cabinet in the bedroom and, using both hands, swung the bat at him while swearing and calling him a “white motherfucker.” She hit him on the neck, and his glasses were knocked off by the blow. He testified he had worn glasses since he was eight years old and could see only shapes without them. He was struck in the elbow, shoulder and head. He knocked the bat out of Davis’ hands to the floor, and put his foot on it to prevent her from picking it up. The bat had previously been cracked, and it broke into two pieces when she grabbed for it.

Davis began hitting him with the handle of the bat, and he grabbed her around the neck and wrestled her to the floor, telling her to quit and “it’s over.” When he released her, she jumped up and tried to knee him in the groin, partially succeeding, and continued to swear at him telling him she was going to kill him. He found the other piece of the bat and began striking her all over with it to get her off him, blocking her blows with his other hand. The fight ended when he swung at her head with all his might and hit her. She fell straight back into a door and the momentum carried him forward on top of her. She moaned when he rolled off her, and he searched for and ultimately found his glasses under the bed.

His nose was bleeding badly, so he got a towel from the bathroom to help stop bleeding. He then saw Davis was bleeding badly from a wound on the side of her head, so he wrapped the towel around her head. When he saw the wound, he said he knew she was going to die. He was afraid the neighbors were going to call the police after hearing all the noise from the fight, so he tried to put her pants and boots on, wrapped her in a blanket and put her in the van. He drove around for awhile, and finally left her in a park-like boat landing area. He returned to his trailer and tried to clean up the blood that was splattered extensively on the walls and floor in the hallway and bedroom area. He then gathered up Davis’ wig and the bat pieces, put them in a garbage bag that was in the bathroom and threw the bag in the garbage dumpster outside of the trailer.

Davis’ body was discovered later that morning in the boat-landing area, nude from the waist up, a blanket and leather jacket nearby. A blood-soaked towel was beneath her head. Pathologist William Rouse testified there were three lacerations of the face and head: one vertically along the left eye; one a few inches long in a midline over the top of the head slightly to the left side, and one extending from the right ear to the back of the head horizontally. The deceased’s body also bore scratches on the right cheek and under the chin, a small cut on the right side of the lower lip and inside the right cheek corresponding to the area of the teeth, and under the jaw on each side. There was a superficial scrape or brush burn over the shoulder, and two small superficial lacerations on the outer portion of the upper left arm. The back of the inner aspect of the left hand was swollen and recently bruised, consistent with a defense-type of wound. Two transverse scars of recent origin were observed on the victim’s inner right wrist. Petechia, pinpoint hemorrhages of small blood vessels, were observed in the whites of the victim’s eyes, a condition indicative of manual strangulation of an intensity which could cause death by asphyxiation if maintained long enough. The doctor concluded the immediate cause of death was herniation of the brain due to its swelling caused by trauma to the brain as the result of the skull being struck with a blunt instrument.

Absent the lacerations to the head, the brain swelling and fracture to the back of the skull, the doctor testified there would have been sufficient findings to suggest a cause of death of asphyxia due to manual strangulation. The doctor also testified he found no evidence of “contre-coup” to the head, a type of injury which would occur if a person lying on the ground were struck with a blunt object. An examination of the vaginal cavity showed a few intact sperm heads, a finding compatible with sexual contact within several days’ time, but there was no convincing evidence of fresh insemination.

The doctor neither weighed nor measured the body, but estimated it would be between five and 5V2 feet in length. The victim’s mother, Catherine Brown, testified on rebuttal her daughter was 20 years old, five foot three inches tall, and weighed 120 pounds. She testified her daughter had cut her “leader” (the witness indicated at trial the inner aspect of the right wrist just above the palm) in August 1980, and that she was unable to grasp objects in her right hand, and often required assistance in performing certain tasks, such as dressing, hair combing, and putting on earrings. Davis was able to drive, however, partially using her arm on the steering wheel. The defendant had estimated Davis weighed about 130 or 140 pounds and was about five foot seven or eight inches tall. He indicated at trial that she came up to between his chin and lower lip. He himself was six feet tall, 160 to 165 pounds.

Acting on information from Ora Jean Flint, the police promptly located the van the defendant had been driving parked next to his trailer. Ricks, the owner of the van, was present when the police arrived at the defendant’s trailer and he consented to a search of the van. Samples of blood stains observed therein were tested and found to be consistent with the victim’s blood type. The defendant admitted on cross-examination he told the police the blood stains may have been animal blood since he and Ricks had been hunting a couple of weeks earlier. Defendant also admitted on cross-examination that he asked his neighbor to tell the police she had given him the marks on his neck (which looked like hickeys), which she refused to do, and he told the police he got the marks in a fight.

After the defendant’s arrest, the police found a plastic garbage bag in a dumpster near his trailer. There was a paper garbage bag inside the plastic one which contained Davis’ wig, a portion of a taped baseball bat, two shop towels, a pair of man’s jeans, and the head of a plastic adult-size doll. A small chip of wood was found in the wig which appeared to match perfectly a piece of wood that was missing from the defendant’s trailer. The police also recovered from the trailer a shop towel similar to the ones found in the dumpster, and a rent receipt for the trailer made out in the defendant’s name. A plastic mouth-and-throatpiece that fits into the head of an adult doll was found in the defendant’s bathroom storage closet. References to this item and the doll’s head found in the dumpster were strenuously objected to by the defendant, and the defendant’s second issue is based on the court’s admission of those items into evidence over his objection.

Prior to trial, the court granted a motion in limine by the State to prevent the defendant from presenting evidence of specific acts of violence on the part of the deceased which were not directed toward the defendant and of which defendant had no knowledge at the time of the incident. The defendant had argued the purpose of the evidence would be to show that the deceased was the aggressor, not what his state of mind was at the time of the incident. As such, his lack of knowledge about these specific prior violent acts of the deceased would not prohibit introduction of that evidence. To preserve the issue, the defendant made two offers of proof during trial. In the first, Rockford police officer Richard Galvanoni testified that on April 6, 1978, he was involved in a violent episode with the deceased, Sylvia Davis. When he was assigned to work undercover vice and prostitution in the South Main area of Rockford, Davis solicited him and he advised her she was under arrest. She began kicking, screaming and hollering and resisting arrest, and it eventually took four police officers to place her in the marked police vehicle with a cage in it. He stated it was a possibility that he alone may have been able to incapacitate her with a punch, but that it is police policy in the course of an arrest not to punch or “choke out” women. He stated that Davis’ wig came off during the fracas and due to the way she was fighting and her strength, he thought perhaps she was a man dressed as a woman.

The second offer of proof was the testimony of former Rockford police officer Gary Thurston concerning an incident involving Davis in September 1976. He was sent to a fast food restaurant to break up a fight. He. observed a crowd of about 100 to 150 people,, and Davis was standing on a hill yelling threats such as: “I’m going to kill you white motherfuckers. Dirty honky motherfuckers are all going to get killed.” Officer Thurston testified:

“[Thurston] A. I told her three times that she had to move on, be quiet and move on, or she was going to be arrested. Each time she told me to get fucked. The third time I placed her under arrest. At that time I grabbed her by the arm. She subsequently kicked me in the crotch, bit me in both hands, knocked off my glasses, and grabbed my revolver. A fight ensued. She pulled on my revolver to the tensile strength of breaking the leather out of it. The only thing holding it on was just the snap over the hammer. At that time I threw her on the ground, got her in a [sic] arm lock. She again kicked me in the leg and nuts. By that time Officer McLester was at the scene, and with great effort we handcuffed her and drug [sic] her kicking to the squad car where she was subsequently locked in the back seat in the cage.
[Defense counsel] Q. During the time when she was kicking at you and punching you, what, if anything, was she telling you, Officer?
A. She was telling me that ‘I’m going to kill you, you fucking Pig-’
Q. How many times did she say that?
A. Oh, I would say more than once, because I remember quite vividly, especially when I found that my gun was being torn out of my holster.
* * *
Q. Did you see her conduct in the squad car?
A. Yeah. She was yelling out of the window different things, one of which was ‘No motherfucking pig is going to get me. Get you mother. I’m going to get you.’ ”

The court refused both offers of proof.

The defendant claims it was error for the court to have refused the offers. He urges this court to reconsider its position taken in People v. Wolski (1980), 83 Ill. App. 3d 17, wherein we upheld the exclusion of evidence that the deceased had participated in fights at school because the defendant did not know of the deceased’s propensity for aggression at the time of the incident. In Wolski, we adhered to the established rule that:

“[W]here a claim of self-defense is made, and at the time of the incident the accused knew of the victim’s reputation for violence or knew of specific violent acts by the victim, proof of such reputation or acts together with the accused’s knowledge thereof is relevant and admissible to establish the reasonableness of the accused’s apprehension of danger. [Citations.]
*** ‘[E]vidence concerning the violent temper and disposition of the deceased and his prior threats to the defendant is admissible as tending to show the circumstances confronting the defendant, the extent of his apparent danger, and the motive by which he was influenced. Such circumstances are relevant in that they tend to show the defendant’s state of mind. [Citations.]’ [Citation.]
*** [T]he law in Illinois still requires the exclusion of evidence of a victim’s propensity for aggression unless the accused knew the victim had that trait.” People v. Wolski (1980), 83 Ill. App. 3d 17, 29-30.

The defendant relies on People v. Baer (1976), 35 Ill. App. 3d 391, wherein the court acknowledged the general rule that evidence of specific prior instances of misconduct are irrelevant to the issue of the deceased’s general reputation. However, Baer concluded that where the evidence of specific misconduct is offered to establish a character trait of the victim, not his general reputation, “specific prior incidents of violent aggression by the victim may be admissible as tending to show that he was the aggressor in the incident. 1 Wigmore on Evidence sec. 198 (3d ed. 1940).” (35 Ill. App. 3d 391, 396.) Nevertheless, Baer held the evidence proffered there (an arrest for disorderly conduct) was insufficient to prove the victim had a violent nature and, thus, it was not error in that case to exclude it.

The State urges this court to adhere to its position taken in Wolski and People v. Vega (1982), 107 Ill. App. 3d 289. Vega followed Wolski in finding that the trial court properly excluded evidence of the victim’s arrest record (criminal damage to property over $150, burglary, fighting, reckless driving, unlawful possession of cannabis, battery and aggravated battery) where the defendant claimed knowledge of the victim’s trouble with the police, but not his arrest record. This court stated even if it had determined that the evidence was erroneously excluded, it would have been harmless beyond a reasonable doubt because the court had already admitted substantial evidence concerning the victim’s violent acts. That evidence included testimony that the victim “had engaged in a pattern of threats and violence toward defendant for many years, and that [the victim] had inflicted serious injuries upon others.” People v. Vega (1982), 107 Ill. App. 3d 289, 292.

The State posits that evidence of the victim’s prior acts of violence would be highly inflammatory and of no probative value. Further, such evidence would not have any “real bearing” on what occurred in the situation at issue. The State urges that if this court should decide the evidence was erroneously excluded, that it was harmless error. The State points out that three witnesses testified at trial to the victim’s general reputation for violence in the community. We note that the record reveals the three reputation witnesses were a prostitute, a former prosecutor-attorney currently officing in the same building as defense counsel, and a former Rockford police officer — not identified as such at trial — employed at the time of trial by the Department of Public Safety in Alaska.

The State argues the relevancy of the two excluded offers of proof was severely undermined by the fact both incidents occurred well before August 1980, at which time the deceased suffered a serious cut in her right wrist which limited her ability to grasp objects and perform various routine tasks. Further, the State argues the verdict would not have been different even if the jury had heard the excluded proof. It points out the defendant could not reasonably have feared great bodily harm or imminent death at the hands of the deceased given their height and weight differences and considering the evidence of the minor injuries suffered by the defendant compared with the “calamitous” injuries sustained by the deceased.

We believe the defendant’s position on this issue has merit, but that a re-examination of our decision in Wolski is not necessary since we find that case is distinguishable. As pointed out in People v. Buchanan (1980), 91 Ill. App. 3d 13, 16-17:

“One purpose of the testimony may be to show the reasonableness of the defendant’s state of mind in acting in self-defense; a second purpose may be to support the defendant’s testimony that the deceased was the aggressor. (United States v. Burks (D.C. Cir. 1972), 470 F.2d 432, 434-35.) These distinct purposes serve different functions and carry different requirements as to the defendant’s knowledge of the deceased’s character and reputation. (1 Wigmore, Evidence sec. 63 (3d ed. 1940); Annot., 1 A.L.R. 3d 571, 575-76 (1965).) When used for the first purpose, the defendant must have known the information concerning the deceased when the act of self-defense occurred. This requirement is entirely correct, flowing from the subjective use to which the testimony is put — supplying insight into the defendant’s state of mind and his beliefs regarding the danger he was in. A requirement that the defendant knew of the deceased’s propensity for violence is unrelated to the second purpose, however. Evidence that the victim was a violent person or committed violent acts helps corroborate the defendant’s testimony that the deceased was the initial aggressor; the defendant’s lack of knowledge concerning the deceased’s reputation for character does not affect the relevancy of evidence offered for this purpose.
* * *
Many decisions in Illinois focus on only the first purpose and therefore do not serve as authority regarding the second. ‘[T]he law in Illinois still requires the exclusion of evidence of a victim’s propensity for aggression unless the accused knew the victim had that trait.’ (People v. Wolski (1980), 83 Ill. App. 3d 17, 30, 403 N.E.2d 528, 538.)” (Emphasis added.)

As noted in Annot., 1 A.L.R. 3d 571, 601 (1965), 21 jurisdictions besides Illinois (citing People v. Buchanan) have adopted the view that where the issue of self-defense is raised, evidence of the victim’s turbulent character is admissible in a trial for homicide or assault to corroborate testimony as to the circumstances of the encounter whether or not the defendant had knowledge of such character trait. Annot., 1 A.L.R. 3d 571, 601 (1965), and 203 (Supp. 1982).

The rule that specific prior incidents of violent aggression by the victim may be admissible as tending to show that the victim was the aggressor in the incident was first expressed in People v. Baer. It subsequently has been approved in People v. Montgomery (1977), 51 Ill. App. 3d 324, People v. Buchanan (1980), 91 Ill. App. 3d 13, and People v. Fischer (1981), 100 Ill. App. 3d 195. As noted in Buchanan:

“Character and reputation are distinct — character pertains to what one actually is, and reputation concerns what one . thought to be. (People v. Hicks (1935), 362 Ill. 238, 243, 199 N.E. 368, 370.) Character is shown by proof of specific acts, and when the deceased’s character is being proved to support a claim of self-defense, acts of violence are admissible. People v. Baer (1976), 35 Ill. App. 3d 391, 396, 342 N.E.2d 177, 181-82.” People v. Buchanan (1980), 91 Ill. App. 3d 13, 16.

Although this court rejected Baer in its Wolski opinion, we believe Buchanan correctly distinguishes our decision in Wolski on the basis the evidence there was offered to show the reasonableness of the defendant’s state of mind in acting in self-defense. Consequently, our decision in Wolski is not apposite here and would not bar the admission of evidence of specific acts offered for the second purpose, to corroborate the defendant’s testimony that the deceased was the aggressor. Wolski is also distinguishable in that the trial court’s refusal to instruct on self-defense was upheld because we found the record there was devoid of evidence of self-defense. Such is not the case here; the jury was instructed on self-defense as well as voluntary and involuntary manslaughter.

Our decision in People v. Vega (1982), 107 Ill. App. 3d 289, impliedly recognized the different purposes for which evidence of the decedent’s violent temperament may be offered when it cited to People v. Buchanan, but we found there that the excluded evidence would merely have been cumulative where the record already contained substantial evidence of the victim’s violent acts toward the defendant and others. People v. Vega (1982), 107 Ill. App. 3d 289, 291-92.

No such saving feature appears in the case at bar. The testimony of the three witnesses as to the victim’s general reputation for violence in the community was very brief, and hardly probative of the issue of the decedent’s aggressive character. “A person’s specific acts are obviously more probative of that person’s character than is his reputation.” (People v. Robinson (1977), 56 Ill. App. 3d 832, 839.) Defendant’s testimony here was the only evidence admitted to show that the deceased was the aggressor. However, the defendant was the one “who was on trial, directly interested in the verdict, and these circumstances might very well affect his credit with the jury. He had a right to have the evidence of the disinterested witnesses which he offered heard.” People v. Dugas (1923), 310 Ill. 291, 296.

Defense counsel clearly explained the intended purpose of his offers of proof at trial, and in this appeal the defendant has submitted supportive authority sufficiently distinguishing this court’s opinion in Wolski so as to negative that decision as authority to the contrary. Accordingly, we conclude the trial court erroneously excluded the offers of proof.

We further conclude the error was not harmless beyond a reasonable doubt for some of the same reasons the State finds harmlessness. In rebutting the defendant’s affirmative defense, the State did not present any evidence of the deceased’s reputation for peacefulness as was its right after the defendant attacked the reputation of the deceased. (Davis v. People (1885), 114 Ill. 86; Kelly v. People (1907), 229 Ill. 81; McCormick, Evidence sec. 193, at 461 (2d ed. 1972).) Rather, the State presented rebuttal testimony from the deceased’s mother concerning her daughter’s limited use of her right hand, her age, her height and weight, and concerning the various tasks her daughter had difficulty performing as a result of her disability. Defense counsel elicited on cross-examination that the deceased was able to drive a van by holding her arm on the steering wheel. The deceased’s mother said she erroneously told one of the investigating officers she thought it was her daughter’s left arm that was troublesome because she was upset and nervous at the time. The State also called Doctor Rouse in rebuttal. The doctor testified further concerning the deceased’s wounds and the circumstances which would have produced such wounds.

In our view, the excluded offers of proof illustrated that despite her sex, height and weight, the deceased could fend for herself. She freely and vociferously threatened to kill whites and police officers, and fully utilized all parts of her anatomy (her feet and knees) when fighting. She was contemptuous of police authority, verbally abusive toward police officers, and resisted lawful arrest by physically attacking her captors. In arguing the harmlessness of the error, we find the State’s comparison of the respective injuries sustained by the deceased and the defendant without merit. The defense of justifiable use of deadly force against any attacker would be meaningless if, as a prerequisite to such defense, the defendant would be required to exhibit mortal wounds to himself as well. The force used is justified if “necessary to prevent imminent death or great bodily harm.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.) As noted in People v. Scott (1981), 97 Ill. App. 3d 899, 903:

“The difference between self-defense and voluntary manslaughter is in the reasonableness of the defendant’s subjective belief. If reasonable, then a jury is justified in finding the defendant acted in self-defense. If unreasonable, the jury is justified in returning a verdict of voluntary manslaughter.”

In addition to being probative of the question of aggression, the offers excluded here would have provided testimony which, if believed by the jury, would have also rendered reasonable the defendant’s use of deadly force against the deceased. It is one thing for the jury to accept the fact of the deceased’s aggression; it is another for the jury to find the defendant was justified in using the amount of force he did. The court’s erroneous exclusion of admissible evidence offered in this case to show the former fact, denied the defendant some concomitant equally corroborative and probative evidence as to the latter fact.

We conclude the error may have contributed to his conviction for voluntary manslaughter and, therefore, was not harmless beyond a reasonable doubt. People v. Adams (1981), 102 Ill. App. 3d 1129, 1133; People v. Knippenberg (1977), 66 Ill. 2d 276, 287.

Also in connection with this issue, the defendant argues it was error for the court to exclude evidence of Davis’ commitment as a juvenile offender by analogy to People v. Norwood (1973), 54 Ill. 2d 253, and Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105. In essence, those cases held the confidentiality provision of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 9(1)) should not be construed to prohibit access to records of a juvenile delinquent when the records are sought to impeach the credibility of the juvenile as a witness. The State counters that the court properly excluded evidence of the victim’s juvenile record, which was indirectly sought to be introduced through the testimony of two witnesses (a juvenile counselor and a probation officer) who were to testify about the deceased’s general reputation for violence. Such an indirect reference, the State argues, was properly excluded even under the reasoning of Baer because the defendant failed to make an offer of proof that the juvenile record involved any crimes of violence. The State finds the defendant’s citations to People v. Norwood and Davis v. Alaska inapposite where the witness sought to be impeached is deceased, and the State’s proof did not in any manner depend on her credibility. We concur with the State’s response to the defendant’s argument on this issue, and further discussion is not merited.

The defendant’s other contention in this appeal is that the trial court abused its discretion in ruling admissible the head of a plastic adult doll and mouth-and-throatpiece. The State argued the items were admissible because the head of the doll, a bloodied portion of the baseball bat which was the murder weapon, the victim’s wig and a number of other items were found together in a bag in a dumpster near the defendant’s trailer. A plastic mouth-and-throatpiece compatible with such a doll head was found in a storage closet in the defendant’s bathroom. The State posited the items were admissible because they tended to connect the defendant with the crime, and the court admitted them.

The defendant argues there was no evidence linking the doll parts to the acts upon which the murder counts were based, and that introduction of the other items found in the bag in the dumpster would have been sufficient to establish a connection with the defendant. He charges the admission of the doll parts constituted a prejudicial distraction to the jury. He contends the jury may have inferred from the items that the defendant, already shown to have engaged the services of a prostitute, may regularly have participated in “aberrant sexual practices.” The jury may thus have concluded the defendant’s sexual character led him to the commission of a homicide or that his testimony was not entitled to credibility.

The State counters that even though other items found in the dumpster also connected the defendant with the crime, it was entitled to present all relevant evidence. It notes none of the items of evidence challenged in the cases cited by the defendant had any other relevance to the case once it was determined the item was not the criminal instrumentality. (People v. Miller (1968), 40 Ill. 2d 154, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401 (medical instruments); People v. Liapis (1972), 3 Ill. App. 3d 864 (an oil can); People v. Wade (1977), 51 Ill. App. 3d 721 (a .357 magnum).) Also, the judgment of the trial court excluding an artificial penis in People v. Limas (1977), 45 Ill. App. 3d 643, was affirmed on the basis that it had not been shown that the defendant was acting in self-defense of a homosexual attack. Further, no offer of proof was made there which would have made admission of the artificial penis probative. The defendant there was trying to establish the reasonableness of the defendant’s need to defend himself. However, it was not shown where on the deceased’s body the article was found. Consequently, the court found the jury could not have inferred that the victim was reaching for the artificial penis, and its admission would only have been a prejudicial distraction from the issues in the case.

Evidence is admissible if it is relevant and material. “[T]he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidenceV’ (McCormick, Evidence sec. 185, at 437 (2d ed. 1972).) Admissibility may depend also, however, upon whether the probative value of the evidence outweighs its prejudicial effect to the defendant. (People v. Monroe (1977), 66 Ill. 2d 317.) The exercise of the trial court’s discretion regarding the admission of demonstrative evidence will not be interfered with unless there has been abuse resulting in prejudice to the defendant, and where the record establishes a sufficient basis for the trial court’s decision. People v. Jones (1982), 108 Ill. App. 3d 880, 884; People v. Spann (1981), 97 Ill. App. 3d 670, cert. denied (1982), 455 U.S. 954, 71 L. Ed. 2d 671, 102 S. Ct. 1462.

The plastic doll head and mouth-and-throatpiece were identified at trial by Rockford Detectives Colin Anderson and Roger Andersen, respectively. In each instance, the detectives perfunctorily identified the item, and, in response to a defense objection, the court cautioned that Andersen’s testimony should be limited strictly to identification, not characterization, of the mouth-and-throatpiece. Accordingly, he testified only that “[i]t’s an artificial throat and mouth commonly found that fits into the head of an artificial doll.” On cross-examination of the defendant, the prosecutor intimated that the defendant had thrown away the items that were found in the dumpster because he wanted to get rid of the evidence of the crime. The defendant denied the doll’s head was used in any manner with Sylvia Davis. He explained the doll’s head was already in the garbage bag in the bathroom and that he simply threw it away with the other items that were found in the dumpster. He testified he did not know if he had thrown away the entire doll’s head. In closing argument, the prosecutor mentioned the doll’s head again in listing the items that were found in the dumpster, but he drew no “reasonable inference” from its presence there.

In conjunction with our reading of this record, we have viewed the exhibits at issue here, and find the court did not abuse its discretion in admitting them. Evidence is admissible if it fairly tends to prove the particular offense charged, and any circumstance may be put in evidence which tends to make the proposition at issue more or less probable. (People v. Miller (1981), 98 Ill. App. 3d 453, 458.) The jury was entitled to draw its own inferences from the circumstance of the doll’s head being found with other incriminatory evidence in the dumpster, and the mouth-and-throatpiece found in the defendant’s bathroom fairly tended to connect him with the items found in the dumpster. We note these actual exhibits were not available to the jury for inspection during its deliberations, only a photograph of the doll’s head grouped with the other items recovered from the dumpster.

The judgment of the circuit court of Winnebago County is reversed and remanded for a new trial in accordance with this opinion.

Reversed and remanded.

HOPE and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS G. ZOLIDIS, Defendant-Appellant.
    First District (5th Division)
    No. 82—8
    Opinion filed June 17, 1983.
    Seiden & Shapiro, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry A. Semrow, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted and sentenced to 10 years for attempted murder. He contends on appeal that (1) the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (2) his claim of self-defense, even if insufficient to warrant acquittal, should have reduced the charge to attempted voluntary manslaughter; and (3) the sentence imposed is excessive.

At trial, John Perez, Jr., testified that he worked as a part-time doorman at a lounge in Crestwood, Illinois. He was not scheduled to work on March 16, 1981, but went to the lounge between 12:30 and 1 a.m. to wait for his fiancee, who was working as a waitress. The lounge closed at 4 a.m., and by that time he had consumed three or four drinks. The only employees present at closing were his girlfriend and a female bartender; there was no doorman on duty, so he, Scott Dellamano, and Richard Darge began asking the 15 remaining patrons to leave. A few left between 4 and 4:15, but defendant, whom he had never seen before, was asked approximately five times to finish his drink and leave and did not comply. The manager of the band was sitting next to defendant, and he (Perez) told them that they had to leave. He did not raise his voice when telling them this and was not upset. Finally, he took defendant’s drink away from him, although there was a small amount left in the glass. Defendant then started to leave the lounge, but returned, and he (Perez) again told him that the bar was closed. Defendant said, “Come on,” and took a swing at him but missed. At that time, defendant did not have anything in his hand, and he (Perez) was unarmed. He grabbed defendant, and they went out into a hallway where they scuffled for 40 to 50 seconds. He had defendant in a headlock when he (Perez) began falling to the ground, and he noticed that his pants were soaked with blood. Darge grabbed him, laid him on the floor, and told him to stay there. He was hospitalized for 21/2 weeks and had surgery to repair knife wounds to his diaphragm, liver, abdomen, lung, and kidney. As a result of the attack and subsequent surgery, he has numerous scars on his abdomen, chest, back, and thigh. He acknowledged that he may have been feeling his drinks, but denied that the amount he drank affected his memory of events that evening. Although he recalled telling officers that he was working that night, he did not remember telling hospital personnel that he had consumed nine to 12 cocktails while at the lounge. Darge and Dellamano also drank cocktails that night, but he (Perez) did not know whether they had beer mugs or cocktail glasses in their hands when they came into the hallway. He and defendant were alone during the altercation, and at no time did defendant fall to the floor. Defendant was behind him when he (Perez) fell to his knees, but he did not know whether defendant struck him again after the others arrived.

Officer Peterson testified that he called to the lounge at 4:15 a.m. and, when he entered, he saw defendant struggling with two or three other people who were trying to hold him. Perez was on the floor bleeding heavily from his back and leg, and there was a knife on the floor next to him. Defendant was placed under arrest, and a search revealed a leather knife sheath near his right lower back. Defendant had a bruise on his face and was examined and treated at a hospital but not admitted.

Richard Darge testified that he arrived at the lounge at approximately 3:45 a.m. on the night in question and ordered a beer. He recognized defendant, who had been in the lounge once or twice before, as well as Perez and his fiancee, the manager, and Dellamano. When he arrived, Perez was telling patrons it was time to leave. Defendant did eventually leave, but returned immediately and walked up to him and shook hands. When he and Perez again told defendant it was time to leave, he said to Perez, “Well, let’s go outside,” and started to walk out with Perez following him. There was no physical contact between them in the bar area, but when he (Darge) and Dellamano entered the hallway minutes later, Perez and defendant were fighting. They were both on their feet, and Perez had defendant in a headlock. Perez then began walking away from defendant but immediately fell to his knees. Defendant then put his arm around Perez’ neck and stabbed him three or four times in the back. He (Darge) and Dellamano tried to subdue him, but they could not get the knife out of his hand. Darge acknowledged that he and Perez were good friends but denied that Perez was intoxicated when the altercation began. Perez told defendant to leave several times, loudly enough for everyone in the bar to hear. Neither he (Darge) nor Dellamano had a beer mug in their hands when they entered the hallway, and only separated the two men when they saw defendant stabbing Perez.

It was stipulated that, if called, Dr. Gill would testify that Perez suffered 17 stab wounds to his back and extremities. Surgery was required to repair lacerations of his diaphragm, liver, omentum and pneumopericardium.

Dellamano testified that he arrived at the lounge at approximately 1:15 a.m. and consumed five or six drinks between that hour and closing. There were 10 to 12 patrons, including defendant, in the lounge at closing time. Later, he saw defendant in the hallway where he was arguing with Perez, who was trying to get him to leave. Perez and defendant grabbed each other, and they moved into a hallway out of his (Dellamano’s) sight. When he saw them again, Perez was facing defendant and holding onto him as if to keep from falling while defendant was stabbing him in the back. He (Dellamano) grabbed defendant, and Perez fell to the floor. He and Darge then wrestled defendant to the floor and disarmed him. Perez was unarmed. Dellamano admitted that Darge and Perez were his friends but denied ever seeing defendant before, arguing with him on a previous occasion, or threatening him with a beer mug. He did not have a beer mug or anything else in his hand when he entered the hallway and had not even been drinking beer that night. There were three men trying to take the knife away from defendant, and he (Dellamano) struck defendant in the face with his fist several times during the struggle. No one else hit or kicked defendant. He denied telling police that he had to pull Perez off defendant in order to break up the fight.

Defendant testified that he went to the lounge on the night in question at approximately 3:55 a.m. Before that, he was at a wedding reception from 10 p.m. until 2 a.m., at a bar at 67th and Kedzie from 2:30 to 3 a.m., and at another bar from 3 until 3:30 a.m. He consumed three or four beers at the reception and one drink at the first bar. Because that bar was a rough place, he took a knife from a tackle box in his trunk and placed it in his belt at the right side of his back before entering. He took the knife into the lounge in Crestwood because he forgot it was there until he was inside. Upon entering the lounge, he sat at the bar talking to the manager of the band. When Perez told them it was time to leave, the manager asked if he could stay until the band left, but Perez said, “I don’t give a f— who you are, you got to go.” He (defendant) started to finish his drink but then put it down, stating “F— this place, they water down their drinks anyway” and left. As he neared the door, he saw Darge and went back to greet him, and Perez then grabbed his arm and started pulling him, saying “how many times do I got to tell you, Buddy, it’s time to go.” He (defendant) pulled away and started to leave, but Perez followed him and grabbed him when they reached the hallway. When he tried to break free, Perez hit him, and in the struggle both of them fell to the floor. Perez, who was on top of him with his left forearm at his (defendant’s) throat, began punching him in the face-striking him six or seven times. Two or three people rushed from the bar and began kicking him (defendant). He recognized one of them as Dellamano, with whom he had trouble two months previously over a pinball game. At that time, he overheard Dellamano say he would have hit him (defendant) in the head with a beer mug. When Dellamano entered the hallway on the night in question, he had a beer mug in his hand, and he (defendant) was afraid he would get his head bashed in "with that mug. When the three or four people continued hitting and kicking him, he pulled out his knife and began stabbing Perez in the back but could not recall how many times he did so. During all of this time, he (defendant) was on his back and Perez was on top of him with his forearm against his throat. As a result of the beating, he had a bruised nose, two black eyes, a bloody lip, and bruises on his head, chest, back, legs, and ankles. He received treatment at the hospital for these injuries but was not admitted. Defendant acknowledged that Perez told him twice to leave and did not raise his voice in doing so. He (defendant) heard other announcements of closing time but did not recall who made them. Although he was upset that he had to leave, he was not angry. He denied stabbing Perez in the back as he fell to the ground.

It was stipulated that a nurse at the hospital would testify if called; that Perez stated he had nine to 12 V.O. and water cocktails on the night in question; that another nurse would testify that defendant suffered a facial injury, scalp contusions and abrasions, a chestwall contusion, and abrasions on his ankles; and that a police officer would testify that Dellamano stated immediately after the incident that he tried to break up the fight by pulling Perez off defendant.

Opinion

Defendant first contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. He maintains that the trial court lightly disregarded his exculpatory testimony, which was corroborated in part, unimpeached, and not inherently improbable. Furthermore, he argues, the trial court failed to remember or integrate key facts and testimony into his analysis of what occurred.

Self-defense must be affirmatively raised by a defendant; however, once some evidence is presented on that issue, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. (People v. White (1980), 90 Ill. App. 3d 1067, 414 N.E.2d 196.) The defense is raised when evidence is presented that unlawful force was threatened against the defendant; that the danger of harm was imminent; that defendant was not the aggressor; that defendant actually believed that danger existed and that the kind and amount of force used was necessary to avert that danger; and that defendant’s beliefs were reasonable. (People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499.) Should the trier of fact determine that the State has negated any one of these elements beyond a reasonable doubt, then the State has carried its burden of proof. (People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.) Moreover, deadly force may be used only where the threatened force will cause death or great bodily harm or is a forcible felony (People v. Seiber) and is not justified where the victim, even though initially the aggressor, has been disarmed or disabled (People v. Limas (1977), 45 Ill. App. 3d 643, 359 N.E.2d 1194).

In the instant case, defendant acknowledges that the issue of self-defense is a question of fact to be resolved by the trial court, and normally, on review, we will not disturb its finding unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (People v. Chatman (1981), 102 Ill. App. 3d 692, 430 N.E.2d 257.) However, defendant asserts that the trial court may not simply reject his testimony thereon as incredible where it is uncontradicted and corroborated in part (People v. Jordan (1954), 4 Ill. 2d 155, 122 N.E.2d 209) and presents a reasonable hypothesis of justification (see People v. Cortez (1975), 26 Ill. App. 3d 829, 326 N.E.2d 232). This argument assumes that defendant’s testimony was wholly uncontradicted, for it is established that the trier of fact is not required to believe an accused’s exculpatory testimony (People v. Adams (1979), 71 Ill. App. 3d 70, 388 N.E.2d 1326); rather, it must consider the probability or improbability of that testimony, the circumstances surrounding the incident, and the testimony of other witnesses (People v. Perez (1981), 100 Ill. App. 3d 901, 427 N.E.2d 229). Where the circumstances and testimony are contradictory, we will not substitute our judgment for that of the trier of fact on questions involving the weight of evidence and the credibility of witnesses (People v. Hall (1982), 104 Ill. App. 3d 1064, 433 N.E.2d 1039), since conflicts in evidence are to be resolved by the fact finder (People v. Rodriquez (1981), 100 Ill. App. 3d 244, 426 N.E.2d 586), and it is not our function to reweigh facts and redetermine from the record the credibility of the witnesses (People v. Zagnoni (1981), 96 Ill. App. 3d 676, 421 N.E.2d 1005).

Defendant first argues that there is no support in the record for the trial court’s conclusion that he was the aggressor and therefore not entitled to assert a claim of self-defense. We disagree. Perez testified that when defendant returned to the bar and was again told to leave, he took a swing at him (Perez). Furthermore, Darge testified that defendant said to Perez, “Well, let’s go outside,” which the trial court apparently interpreted as an invitation to fight. The trial court found these witnesses more credible and correctly concluded that an accused may not seek our a perilous situation, then assert that he acted in self-defense. (People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.) Defendant’s further argument, that the trial court should have found that Perez was the aggressor because the amount of liquor he consumed on the night in question would naturally make him belligerent, is likewise frivolous. Both Perez and Darge testified that Perez was not intoxicated, and defendant himself testified that Perez never raised his voice in telling him to leave, which is corroborated by Perez’ testimony that he was not angry or upset. Although defendant maintains that Perez’ belligerence is shown by the fact that he was not working that night and therefore had no duty to tell patrons to leave, the trial court may well have found Perez’ conduct entirely reasonable under the circumstances. There was no doorman on duty that night to help clear the lounge at closing, and the only other employees present were a waitress and a female bartender.

Defendant further asserts that the trial court could not have found his testimony with regard to how the wounds were inflicted beyond belief, since there was no expert testimony that Perez’ wounds could not have been inflicted if the men were in the position defendant described. However, we note that the trial court observed the position of the wounds inflicted, as well as defendant’s demonstration of how he — while on his back — reached under his back, pulled out the knife, and proceeded to stab Perez in the back while he was allegedly on top of defendant and pinning him down with a forearm to defendant’s throat. The court was further able to observe the size of the two men and determined that defendant’s testimony as to what happened was physically impossible. It is obvious, then, that the trial court considered the circumstances in the light of defendant’s testimony and found the latter improbable. Since we did not have an opportunity to observe either the physical evidence or the demonstration, we cannot say that its determination is unreasonable or unsatisfactory.

Defendant next argues that the trial court failed to give adequate consideration to the injuries he received. In this regard, it is clear from the record that the trial court gave due consideration to all of the evidence presented on that issue and had seen a picture of defendant taken shortly after the incident in question. It found that the injuries were consistent with those which would have been inflicted by the struggle to disarm defendant after the stabbing and inconsistent with defendant’s testimony that he was beaten and kicked by three or four people. We cannot say that this determination is unreasonable or that, given the testimony here, the existence of the injuries described raises a reasonable doubt as to defendant’s guilt.

Finally, defendant argues that his testimony shows that he was reasonable in believing that the force used was necessary to protect himself, pointing to his testimony that he was pinned to the ground and being beaten by several people. This testimony, however, is totally contradicted by the testimony of the victim and two eyewitnesses who were apparently found more credible by the trial court, and we will not substitute our judgment in this regard. Defendant also maintains that his version is corroborated by Dellamano’s alleged statement shortly after the incident that he had to pull Perez off defendant. However, Dellamano denied making that statement, and it is contradicted by the testimony of two other witnesses. Defendant further asserts that even if we accept the testimony that only he and Perez were involved in the fight, he was still justified in using force. The trial court noted that Perez and defendant were almost identical in age, height, and general build, and it could well have concluded that there was no threat of force which would cause death or great bodily harm such as to justify the deadly force employed by defendant. Moreover, the testimony is clear that defendant continued stabbing the victim in the back after he was disabled and falling to the floor. The latter circumstance in itself negates any claim of self-defense.

We also note that defendant’s argument that the trial court “cavalierly” dismissed his testimony and ignored important evidence is totally contradicted by the record before us. The trial court very clearly set forth its conclusions of law and discussed the evidence in a thoughtful, well-reasoned manner. The trial was conducted fairly and impartially, and the trial judge is to be commended for the clear and concise explanation of his ruling.

Defendant next contends that even if his claim of self-defense is insufficient for acquittal, that it should have served to reduce the charge to attempted voluntary manslaughter. However, this court has recently held that the crime of attempted voluntary manslaughter based on an imperfect self-defense does not exist in Illinois. (People v. Reagan (1982), 111 Ill. App. 3d 945, 444 N.E.2d 742.) There, the court reasoned that the specific intent necessary to sustain a conviction under section 8 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4) is the intent to commit a crime. It went on to note:

“To commit an attempted voluntary manslaughter, the defendant could not merely have an intent to kill, for that is not a crime. [Citation.] The defendant would have to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. *** If a defendant intended to kill with the knowledge that such action was unwarranted, he has intended to kill without lawful justification and could be prosecuted for attempted murder. In the case at bar, the defendant intended to defend himself, although his belief in the need to defend himself or in the need to use deadly force was unreasonable, his intent was not to commit a crime. His intent was to engage in self-defense, which is not a criminal offense.” (111 Ill. App. 3d 945, 951, 444 N.E.2d 742, 746.)

The court also stated that the compromise between attempted murder and exoneration where an imperfect self-defense claim exists is aggravated battery or aggravated assault, not attempted voluntary manslaughter.

Furthermore, even if such an offense did exist, its application is not warranted by the facts before us. Defendant’s argument assumes that the trial court rejected his self-defense claim solely because it found unreasonable his belief that force was necessary, or that deadly force was justified by the danger presented. As we noted above, however, the trial court also found that defendant was the aggressor in this incident. That finding is amply supported by the record and precludes any reliance on self-defense, regardless of the reasonableness of defendant’s beliefs. “A defendant cannot claim self-defense where the situation he encounters arises out of his own making.” (People v. Andersch (1982), 107 Ill. App. 3d 810, 819, 438 N.E.2d 482, 488.) Moreover, the testimony of Darge and Dellamano, which the court found credible, established that defendant repeatedly stabbed the victim in the back as he was falling to the floor, already seriously wounded. Such conduct negates any belief on defendant’s part, reasonable or otherwise, that his actions were necessary to defend himself.

Finally, defendant contends that the sentence imposed was excessive. He asserts that the trial court placed undue emphasis on the nature of the offense while giving little regard to factors indicative of his potential for rehabilitation. In particular, he maintains that the trial court failed to consider his stable work record and lack of prior criminal involvement in reviewing factors in mitigation.

Determination of the sentence to be imposed is a matter of judicial discretion, and where the sentence is within statutory limits, the trial court’s decision will not be disturbed absent an abuse of that discretion (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36); that is, unless the sentence fails to reflect “the seriousness of the offense and [give] adequate consideration to the rehabilitative potential of the defendant.” (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233, 243.) Because of this great deference given to the trial court’s decision, a rebuttable presumption exists that the sentence imposed is proper (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870), and the defendant must affirmatively show that the sentence was based on improper considerations (People v. Walter (1980), 90 Ill. App. 3d 687, 413 N.E.2d 542) or is otherwise erroneous in his particular situation (People v. White (1980), 86 Ill. App. 3d 19, 407 N.E.2d 572).

Attempted murder is a Class X felony, for which a sentence of not less than six nor more than 30 years is statutorily mandated. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(c)(1), 1005 — 8—1(a)(3).) Since the sentence imposed is within the lower range of the statutory limits, defendant must show that it is based on improper considerations or is somehow inappropriate in his case. We have studied the record and find that, contrary to defendant’s assertion, the sentence imposed was the result of a thoughtful, well-reasoned attempt to match the sentence to the criminal as well as to the crime. The record shows that the trial court specifically considered the applicability of each mitigating factor, including defendant’s work record and lack of prior criminal record, as well as aggravating factors, including the nature of the crime, as it is required to do. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005— 4 — 1, 1005 — 5—3.1, 1005 — 5—3.2.) Not only did the court mention the factors relied on by defendant, but it clearly accorded them great weight in imposing sentence, since it found that the exceptionally brutal nature of defendant’s conduct was indicative of wanton cruelty which would have justified an extended term of 30 to 60 years. In the light of the thoughtful consideration evident from this record, it is our view that the trial court did not abuse its discretion in imposing a 10-year sentence.

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

Affirmed.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE REINHARD

text:
    LARRY VOGA, Plaintiff-Appellee, v. ALLAN E. NELSON, Defendant-Appellant.
    Second District
    No. 82—748
    Opinion filed June 22, 1983.

      Richard Schiller, of Goldsmith, Thelin, Schiller & Dixon, of Aurora, and Jerrold R. Beger, of Schirger, Beger & Ferguson, Ltd., of Rockford, for appellant.
    Roy S. Lasswell, of Batavia, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Allan E. Nelson, appeals from a judgment entered against him and in favor of plaintiff, Larry Voga, after a jury trial, in the amount of $2,500 actual damages and $15,000 punitive damages. Defendant was found liable to plaintiff on a complaint for malicious prosecution based on a criminal complaint defendant had signed charging plaintiff with the offense of aggravated battery and from which plaintiff was discharged without further prosecution upon a finding of no probable cause at a preliminary hearing. Another suit brought by plaintiff alleging malicious prosecution based on defendant’s filing of a separate battery complaint was joined for trial and was dismissed by the court prior to the jury's deliberations. This dismissal is not an issue in this appeal.

Defendant raises the following issues on appeal: (1) whether the award of punitive damages was contrary to law and contrary to the manifest weight of the evidence because plaintiff failed to present any evidence of “special injury”; (2) whether the award of actual damages was contrary to law and contrary to the manifest weight of the evidence because attorney fees are not recoverable as actual damages in a malicious prosecution case and plaintiff presented no evidence of actual damages apart from attorney fees; (3) whether the total damages awarded were contrary to law and contrary to the manifest weight of the evidence because punitive damages are not recoverable in the absence of proper actual damages; (4) whether the trial court erred in refusing defendant’s tendered jury instruction on an affirmative defense and in failing to direct a verdict at the close of plaintiff’s case; and (5) whether the court erred in barring defendant from introducing evidence of plaintiff’s prosecution for aggravated battery and his incarceration for contempt of court after allowing plaintiff to introduce evidence of plaintiff’s reputation and character.

Defendant is plaintiff’s uncle. Prior to the filing of the criminal charge that gave rise to this lawsuit, there apparently had been some friction between the parties concerning matters unrelated to the events involved in the case at bar.

The events leading to this case began on October 1, 1973, when defendant swore out a complaint charging plaintiff with the offense of aggravated battery. Plaintiff and defendant presented conflicting evidence at trial as to the occurrence that led to the filing of this complaint. Defendant’s version of the occurrence was that he was driving a truck when he approached a tractor pulling a large bin. Defendant slowed down to pull around the oncoming tractor. At that time, plaintiff, who was driving the tractor, stopped it, jumped off, and as defendant drove by, threw a wrench through the open window of the truck, striking defendant on the arm.

Plaintiff’s version of this occurrence was that defendant stopped his truck and told plaintiff to move the tractor and bin out of the roadway. Plaintiff testified that he exchanged words with defendant and that defendant then jumped out of the truck carrying a jack handle. Plaintiff stated that he then dove under the tractor; that he lost a wrench while doing this; and that defendant picked up the wrench, got back in his truck, and drove away.

Defendant went to the office of the State’s Attorney of Kendall County later that day. He testified that the State’s Attorney “advised me my rights [sic]” but did not advise him to file a complaint. Defendant stated that the State’s Attorney advised him that he could file a complaint if he wanted to do so.

Dallas Ingemunson, the Kendall County State’s Attorney, testified that he had a discussion with defendant about the incident with plaintiff. He made a determination that a crime had occurred if the story related by defendant was correct. Ingemunson stated that he directed that a complaint be prepared by his secretary based on the facts related to him by defendant and that he told defendant to read the complaint. He told defendant that if it was correct he should tell the same story to the judge and sign the complaint before the judge. Defendant did sign the complaint before a judge.

After the close of all the evidence the jury returned a verdict for plaintiff.

Defendant first argues that the judgment in favor of plaintiff was improper because plaintiff failed to present evidence of “special injury.” Defendant maintains that proof of “special injury” is necessary for recovery in a malicious prosecution action.

In order to recover for malicious prosecution a plaintiff must prove: “ ‘(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.’ ” (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45, 411 N.E.2d 229.) Where the malicious prosecution action is based on the wrongful bringing of a civil suit, the plaintiff must also establish evidence of his arrest, the seizure of his property, or some other special injury which exceeds the usual expense, annoyance, and inconvenience of defending a lawsuit. (Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235, 239, 399 N.E.2d 1286; Smith v. Aaron, Aaron, Schimberg & Hess (1983), 112 Ill. App. 3d 653, 655, 445 N.E.2d 67.) However, if the malicious prosecution is based on the institution of criminal proceedings, no showing of special injury is required. (Gonzalez v. Chicago Steel Rule Die & Fabricators Co. (1982), 106 Ill. App. 3d 848, 850, 436 N.E.2d 603.) The instant case is a malicious prosecution action based on the institution of a criminal prosecution for aggravated battery. Thus, plaintiff was not required to present evidence of special injury.

Defendant cites McCutcheon v. Moran (1981), 99 Ill. App. 3d 421, 425 N.E.2d 1130, as supporting his claim that special injury must be shown in a malicious prosecution suit based on the institution of criminal proceedings. In dicta, the court in McCutcheon indicated that special injury must be alleged to support a malicious prosecution action based on the filing of a battery charge. (99 Ill. App. 3d 421, 426, 425 N.E.2d 1130.) However, the cases cited by the court in support of this proposition all dealt with underlying civil actions rather than criminal prosecutions. As stated above, the proper rule for malicious prosecution actions based on the institution of criminal proceedings is that no showing of special injury is required. Gonzalez v. Chicago Steel Rule Die & Fabricators Co. (1982), 106 Ill. App. 3d 848, 850, 436 N.E.2d 603.

Defendant also argues that attorney fees incurred in defense of the underlying action cannot be recovered as actual damages. While this may be the rule where the malicious prosecution suit is based on the wrongful bringing of a civil suit (Stopka v. Lesser (1980), 82 Ill. App. 3d 323, 325, 402 N.E.2d 781), attorney fees incurred in defending a criminal prosecution are recoverable where the malicious prosecution suit is based on the institution of those criminal proceedings. (Krug v. Ward (1875), 77 Ill. 603, 609; Thieme v. MacArthur (1936), 285 Ill. App. 242, 253, 1 N.E.2d 514; Farris v. Messimore (1920), 219 Ill. App. 582, 587; see Gaszak v. Zayre of Illinois, Inc. (1973), 16 Ill. App. 3d 50, 60, 305 N.E.2d 704; see also Prosser, Torts sec. 119, at 850 (4th ed. 1971); Restatement (Second) of Torts sec. 671(b) (1977).) Thus, it was proper for plaintiff to introduce evidence that he incurred $2,500 in attorney fees in defending the criminal prosecution that had been instituted by defendant, and it would be proper for the jury to have considered these fees in awarding actual damages.

Defendant also contends that the award of punitive damages was improper since no allowable actual damages were proved by plaintiff. Since we hold that attorney fees reasonably incurred in defending an underlying criminal prosecution are properly considered in awarding actual damages, defendant’s argument is without foundation and therefore need not be further addressed.

Defendant next argues that the trial court erred in refusing to give the following jury instruction tendered by him:

“A person who, in good faith, fairly submits facts to a prosecuting attorney and on his advise institutes criminal proceedings against another, has a complete defense to an action for malicious prosecution, although the person charged is ultimately found not guilty of the crime charged.”

Defendant contends that this is an accurate statement of the law as set out in Carbaugh v. Peat (1963), 40 Ill. App. 2d 37, 48, 189 N.E.2d 14, and that therefore this instruction should have been given.

While advice by the State’s Attorney to initiate a criminal prosecution after providing him true information has been held to be a defense to a malicious prosecution action (Pratt v. Kilborn Motors, Inc. (1977), 48 Ill. App. 3d 932, 934-35, 363 N.E.2d 452; Carbaugh v. Peat (1963), 40 Ill. App. 2d 37, 189 N.E.2d 14; cf. Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 296, 211 N.E.2d 286), the court did not err in refusing defendant’s proposed instruction here since the record discloses that the State’s Attorney did not advise defendant to initiate criminal proceedings against the plaintiff and defendant did not testify that he was advised to sign a complaint by the State’s Attorney. Defendant seems to argue on appeal that he need not have been advised to initiate the criminal proceeding by the State’s Attorney in order to have a complete defense to a malicious prosecution action, but must only have sought advice from him before initiating the proceedings. A fair reading of the cases cited by defendant does not support this argument. See Pratt v. Kilborn Motors, Inc. (1977), 48 Ill. App. 3d 932, 363 N.E.2d 452; Carbaugh v. Peat (1963), 40 Ill. App. 2d 37, 189 N.E.2d 14.

Defendant testified that the State’s Attorney “advised me my rights, [sic] but he didn’t advise me to sign a complaint.” The record does not indicate what these “rights” were, nor did defendant make an offer of proof as to what this phrase meant. Moreover, defendant did not testify that he signed the complaint in reliance on any advice the State’s Attorney gave him. The State’s Attorney’s testimony indicates that he did not advise defendant to file the complaint. He only determined that if defendant’s facts were true, a crime had occurred. He explained the filing procedure to defendant and assisted him by having a secretary type the complaint.

A jury instruction is properly refused where no evidence exists to support the theory of the instruction. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 591, 392 N.E.2d 70; Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 664, 315 N.E.2d 63.) Thus, on the basis of the lack of evidence to support the instruction, the trial court properly refused to give it. We further note that the trial court did give an instruction on defendant’s affirmative defense that he made a full and fair disclosure to the State’s Attorney of all the true facts charged in the criminal proceeding. This instruction adequately informed the jury of an affirmative defense which, if believed by the jury, would negate an element of plaintiff’s burden of proof that defendant lacked probable cause for commencement of the criminal prosecution.

Defendant also maintains that a directed verdict should have been entered in his favor based on his seeking advice from the prosecutor. Although a motion for a directed verdict does not appear in the record provided us, based on the foregoing, such a motion would have been properly denied.

Defendant’s final contention is that the trial court erred in barring evidence that plaintiff had been previously prosecuted for aggravated assault and that he had once been found in contempt of court. Defendant contends that the trial court improperly allowed plaintiff to introduce evidence of specific acts to show plaintiff’s good character while denying defendant the opportunity to rebut this evidence. Defendant has not challenged the propriety of character evidence in this civil case, and we therefore do not consider its admissibility. Defendant does contend that only reputation evidence, not evidence of specific acts, may be presented to show character.

The general rule in criminal cases is that where character evidence is proper, only reputation evidence and not evidence of personal opinion or specific acts is admissible. (People v. Greeley (1958), 14 Ill. 2d 428, 432, 152 N.E.2d 825; People v. Stanton (1953), 1 Ill. 2d 444, 445, 115 N.E.2d 630; People v. Goodwin (1981), 98 Ill. App. 3d 726, 730, 424 N.E.2d 425.) Initially, we point out that defendant failed to object to the allegedly improper evidence and therefore, has waived this issue on appeal. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 411, 444 N.E.2d 220.) The record discloses that plaintiff’s counsel asked plaintiff’s father if he knew plaintiff’s reputation for peaceableness. Defendant’s objection to the question was overruled. Plaintiff’s father then gave the unresponsive answer that “Larry was always a good boy.” Defendant did not ask that this answer be stricken. Similarly, when plaintiff was asked whether he had been arrested since his arrest for aggravated battery and he responded “I’ve had some traffic incidents,” defendant failed to object to the question or ask that the answer be stricken. Thus, this issue is waived on appeal. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 411, 444 N.E.2d 220; Brumley v. Federal Barge Lines, Inc. (1979), 78 Ill. App. 3d 799, 806, 396 N.E.2d 1333.

Additionally, we deem the admission of this evidence not to be prejudicial even if its admission were held to be improper. Thus, any error in admitting it would be harmless. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 414, 444 N.E.2d 220; Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 86, 392 N.E.2d 628.

Defendant further contends that he should have been allowed to rebut this evidence presented by plaintiff with evidence of plaintiff’s arrest for aggravated assault and his being held in contempt of court. A party may only introduce evidence that would ordinarily be improper to introduce, where the other party has opened up the issue, and the party seeking to introduce the otherwise improper evidence will be prejudiced unless he is allowed to introduce it. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 832, 416 N.E.2d 347; Herget National Bank v. Johnson (1974), 21 Ill. App. 3d 1024, 1027, 316 N.E.2d 191.) Since we hold that the evidence introduced by plaintiff was not prejudicial, even if its admission were held to be improper, the trial court did not err in refusing the evidence defendant sought to introduce because defendant was not prejudiced by its exclusion.

For the foregoing reasons the judgment of the circuit court of Kendall County is affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


author: PRESIDING JUSTICE WEBBER JUSTICE MILLS,

text:
      In re ROBERT HAYS—(The People of the State of Illinois, Petitioner-Appellee, v. Robert Hays, Respondent-Appellant).
    Fourth District
    No. 4—82—0772
    Opinion filed June 16, 1983.
    MILLS, J., dissenting.
    Ann E. Hymowitz and Jeff M. Plesko, both of Legal Advocacy Services Guardianship and Advocacy Commission, of Champaign, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Respondent Hays appeals from an order of the circuit court of Macon County which found him to be a person subject to involuntary admission for mental health treatment. The order was made pursuant to the emergency admission by certificate provisions of the Mental Health and Developmental Disabilities Code (Code). (Ill. Rev. Stat. 1981, ch. 911/2, par. 3 — 600 et seq.) Hays had been a voluntary patient at Mercy Hospital, Urbana, but had been transferred to the Adolf Meyer Mental Health Center, Decatur, at the time of the hearing.

The essential facts are not in dispute. Hays had voluntarily admitted himself to Mercy Hospital on October 11, 1982. This was his ninth such admission in four years. On October 12 he became violent, and a psychiatric social worker at Mercy Hospital executed the petition under section 3 — 601 of the Code (Ill. Rev. Stat. 1981, ch. dV-lz, par. 3— 601), and it was accompanied by a certificate of a psychiatrist under section 3 — 602 of the Code (Ill. Rev. Stat. 1981, ch. 9U/2, par. 3 — 602). Hays was then transferred to the Meyer Center, and on the following day the second psychiatrist’s certificate was made. Both certificates verified that Hays was a person subject to involuntary admission for treatment.

A hearing was held by the circuit court on October 19, at which Hays, accompanied by his appointed counsel, was present. The testimony of the State’s witnesses was unremarkable, simply describing Hays’ history of prior admissions, the current admission, and the events which led to the filing of the instant petition. Hays presented no evidence, and at the conclusion of the hearing, the court ordered the involuntary admission. At the commencement of the hearing the assistant State’s Attorney inquired of defense counsel, “Since the Reporter had to be absent during the first part of the testimony, would counsel waive the recording of that testimony?” Defense counsel replied in the affirmative.

A preliminary question may first be disposed of. Subsequent to the filing of the notice of appeal but prior to the filing of the common law record in this court, there was filed in the trial court a notice of discharge upon which the trial court entered a discharge order. (Ill. Rev. Stat. 1981, ch. 9IV2, par. 3 — 902(c).) The parties agree, as do we, that such an order does not render this appeal moot. In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557; In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.

Hays’ chief contention is that under his status as a voluntary admittee, there was no basis for an involuntary petition until such time as he sought release under the provisions of section 3 — 403 of the Code (Ill. Rev. Stat. 1981, ch. 91V2, par. 3 — 403). That section provides:

“A voluntary patient shall be allowed to be discharged from the facility at the earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays and holidays, after he gives any treatment staff person written notice of his desire to be discharged unless he either withdraws the notice in writing or unless within the 5 day period a petition and 2 certificates conforming to the requirements of paragraph (b) of Section 3 — 601 and Section 3 — 602 are filed with the court. Upon receipt of the petition, the court shall order a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, and to be conducted pursuant to Article IX of this Chapter. Hospitalization of the patient may continue pending further order of the court.”

It is true that prior case law supports this position. (In re Clement (1975), 34 Ill. App. 3d 574, 340 N.E.2d 217; People v. Hill (1979), 72 Ill. App. 3d 638, 391 N.E.2d 51; In re Meyer (1982), 107 Ill. App. 3d 871, 438 N.E.2d 639.) The State contends that these cases represent a misinterpretation of the Code and invites us to ignore them. The invitation is tempting since we question the rationale upon which they are based.

The primary, if not the sole, emphasis of these authorities is upon the voluntary patient’s right to request to leave. The Clement court described this as the “focal point of his voluntary status.” (34 Ill. App. 3d 574, 577, 340 N.E.2d 217, 219.) Such an hypothesis ignores the considerable power and control placed in the hands of one who, by his own admission, acknowledges an inability to function successfully in society. It makes possible the situation in which an individual may take sanctuary as a voluntary patient and by proper timing of his request to leave forestall any possible involuntary petition in response thereto. If, for example, the psychiatrists whose testimony would be essential in support of the involuntary petition were unavailable or absent for more than 15 days, under the provisions of section 3 — 800(b) of the Code (Ill. Rev. Stat. 1981, ch. 911/2,par. 3 — 800(b)) the court would have no alternative other than to release the person, no matter how dangerous he might be to himself or others. We find it difficult to believe that the legislature intended such a result.

Furthermore, we can find no express prohibition in the Code against an involuntary petition whose subject is a voluntary patient. Certainly none appears on the face of section 3 — 600. Nor by extension of logic can we find any provision whereby an involuntary petition may be defeated by a voluntary admission made subsequent to the filing of the involuntary petition. The two situations, voluntary and involuntary, appear to us to be independent. While the patient may be in control of the voluntary status, an involuntary petition indicates by its very nature that the patient is incapable of being in charge.

Nonetheless, in the interests of comity and of maintaining a consistent body of authority, we feel compelled to follow the precedents of Clement, Hill, and Meyer. The order of the circuit court for involuntary admission was therefore void for want of statutory authority. In this connection the State’s argument is that Hays has waived the point because he did not raise it in the trial court. Apart from the question as to a valid waiver by one whose mental capacity is the issue in the case, no necessity exists to challenge a void order in order to preserve the point on appeal. Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 390 N.E.2d 28; Shady v. Shady (1973), 10 Ill. App. 3d 801, 295 N.E.2d 130.

Hays’ next argument is that he has been deprived of a record for purposes of appeal by his counsel’s waiver of the presence of a reporter at the earlier stage of the proceeding as detailed above. As we understand the argument, his complaint is that lack of a complete transcript makes it impossible to determine whether he ever asked for discharge from voluntary status, or whether he did not; and further, whether counsel below raised such issues.

We regard the argument as purely circular. Hays’ principal contention is that the order of involuntary commitment is void because he never asked to be discharged as a voluntary patient. If he had, presumably the argument would be over the validity of that request, not its existence or nonexistence. The record, taken as a whole, fully sustains the inference that no such request was made.

This is not to say that either side is blameless in this situation. The respondent in a mental hearing has a statutory right to a transcript. It is so provided in section 3 — 817 of the Code. (Ill. Rev. Stat. 1981, ch. 9N/2, par. 3 — 817.) In the case of one whose mental competency is at issue, both the State and defense counsel should be extremely wary of waiver.

More to the point, Hays is the appellant and it is his duty as such to present an adequate record to this court. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) If a full verbatim transcript were lacking, recourse to Supreme Court Rule 323 (87 Ill. 2d R. 323) governing bystander’s reports was available. Hays makes no argument that he was prevented in any manner from preparing such a report.

Although we do not condone the procedures used here, we find the issue concerning the record to be without merit under the circumstances of this case.

The order of the circuit court of Macon County is reversed.

Reversed.

GREEN, J., concurs.

JUSTICE MILLS,

dissenting:

The majority is only tem/pted.

I am persuaded.

The “interests of comity and of maintaining a consistent body of authority” are noble ones, but they should not prevail in the face of absurd consequences which flow from blind adherence to ill-reasoned dogma.

The Code does not expressly prohibit the filing of an involuntary commitment petition against a voluntary patient. Furthermore, the emergency admission by certification procedure — which was followed here — makes no mention whatever of voluntary patients, or in any way excludes voluntary patients from its ambit.

I reject the rationale in Clement, Hill, and Meyer and would disregard that body of authority.

Dissent I must.

To do otherwise is to simply turn the mental institution over to the patients!


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE RUFF, Defendant—(Lena Josephine Ruff, Defendant-Appellant).
    Fourth District
    No. 4—82—0694
    Opinion filed June 23, 1983.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Following a jury trial, defendant was convicted of one count of unlawful possession of cannabis and two counts of unlawful possession of a controlled substance (cocaine and methaqualone), violations of section 4(e) of the Cannabis Control Act and section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56V2, pars. 704(e), 1402). She was sentenced to concurrent terms of two years’ probation for each offense. The trial court also fined her $500. It is the trial court’s imposition of a fine which defendant challenges on appeal. We affirm.

Because defendant does not contest the validity of her convictions, a brief recitation of the facts will suffice.

On May 3, 1982, the police executed a search warrant to an apartment rented by defendant and her husband, Wayne Ruff. Seized during the search were 17.22 pounds of cannabis, 3.1 grams of cocaine, 62 capsules of methaqualone, and a box containing $9,500 in United States currency.

As a result of the search, both defendant and her husband were charged with unlawful possession of cannabis with intent to deliver, unlawful possession of cannabis, and two counts of unlawful possession of a controlled substance. Defendant’s husband, Wayne, was also charged with unlawful use of weapons, possession of a weapon without a firearm’s owner identification card, reckless conduct, and armed violence. These additional charges stem from Wayne’s having fired a pistol at police officers when they attempted to execute the warrant.

Defendant, at her trial, sought to prove that it was Wayne who was the active participant in the crimes. Both husband and wife testified that although defendant was aware that Wayne had been storing contraband in their home, she disapproved of the practice and had threatened to leave him over his involvement with drugs. The jury, however, convicted defendant on all counts except that charging her with unlawful possession of cannabis with intent to deliver. After defendant’s trial, Wayne entered a negotiated plea of guilty to charges of unlawful possession of cannabis with intent to deliver, two counts of unlawful possession of a controlled substance, and reckless conduct. The remaining charges against him were dismissed.

At a joint sentencing hearing, evidence was presented which established that the street value of the drugs seized from the apartment was $7,718. Relying upon section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1.1), the prosecutor recommended that a “total fine” of $7,718 be assessed against the Ruffs. Defendant was assessed the $500 fine in addition to her sentence of probation. Wayne Ruff was sentenced to the Department of Corrections and was fined $7,218. The court also ordered that the $9,500 seized with the contraband be forfeited to the county.

Before addressing defendant’s arguments, we note that the fine assessed against defendant is substantially less than that mandated by section 5 — 9—1.1. That provisions provides:

“When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.
‘Street value’ shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the cannabis or controlled substance seized.” Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-1.1.

The trial court in this case apportioned the fines against defendant and her husband so that the sum of the fines imposed equaled the street value of the drugs seized from both of them. Section 5 — 9—1.1, however, does not authorize an apportionment of fines between codefendants. It provides in no uncertain terms that a person convicted of possessing or delivering cannabis or a controlled substance shall be assessed a fine equal to the street value of the contraband seized. Defendant was convicted of unlawful possession of cannabis and two counts of unlawful possession of a controlled substance. The street value of the drugs seized from her home was $7,718. Accordingly, application of section 5 — 9—1.1 required the imposition of a $7,718 fine.

The trial court when imposing sentence stated:

“I recognize that I could sentence her to pay the total fine and revoke part of it. I am not going to do that. I am going to sentence her to pay that much of a fine.”

The court was apparently referring to its powers to revoke the fine pursuant to section 5 — 9—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—2.) That section provides:

“Revocation of a Fine. The court, upon good cause shown, may revoke the fine or the unpaid portion or may modify the method of payment.”

Although the court may revoke a fine or the unpaid portion of a fine already imposed, we do not believe that it may reduce a mandatory fine not yet levied. The court therefore erred when it imposed a fine in an amount less than the full street value of the cannabis and controlled substances seized.

However, the court’s apportionment of the fines is consistent with the prosecutor’s recommendation at the sentencing hearing that a “total fine of $7,718” be assessed against defendant and her husband. The People do not complain on appeal that defendant was fined too little; instead they urge an affirmance of the fine assessed. Following general principles of estoppel and waiver, we will therefore review defendant’s allegations of error as if the amount of the fine had properly been imposed.

Defendant complains that the fine against her must be vacated because section 5 — 9—1.1 infringes upon the court’s discretionary sentencing powers and provides no rational basis for calculating the amount of fine to be assessed. Although failing to invoke any specific constitutional prohibition, defendant impliedly argues that the statute offends due process.

The People respond that the issue has been waived by virtue of defendant’s failure to raise this argument below. (See People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) The record, however, reflects that counsel for defendant’s husband challenged the constitutionality of section 5 — 9—1.1 at the joint sentencing hearing. Accordingly, we will address the issue.

It is a settled rule of law that the legislature has the authority to set the nature and extent of penalties. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 416 N.E.2d 259.) The standard of the proper exercise of this power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public. People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.

The legislature has, by statute, made clear its intention to subject drug offenders to sharply increasing penalties based upon the amount of drugs involved. (See Ill. Rev. Stat. 1981, ch. 5QV2, pars. 701, 1100.) The mandatory fine provision of section 5 — 9—1.1 provides a rational framework in which the punishment imposed is based upon the value and hence volume of drugs seized from the offender. Although it is true that the legislature has chosen to divest the trial judge of the exercise of a certain amount of discretion in the levying of fines, the street value of the drugs seized represents only the minimum fine which may be imposed. This is not unlike the fixing of minimum mandatory prison sentences for the commission of certain serious criminal offenses. Such a practice is unquestionably within the proper domain of the legislature. People v. Moore (1973), 15 Ill. App. 3d 691, 304 N.E.2d 696; People v. Estes (1976), 37 Ill. App. 3d 889, 346 N.E.2d 469.

Defendant also complains that a mandatory fine ignores consideration of an offender’s financial resources. She urges that section 5 — 9—1.1 should be read in conjunction with section 5 — 9—1(d)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(d)(1)) which requires the court to consider the financial resources and future ability of the offender to pay the fine. Defendant contends that the trial court erred when it imposed the $500 fine without first considering her ability to pay it.

However, it is apparent from the trial court’s comment concerning its authority to revoke the fine that it was concerned with defendant’s financial resources. In addition, a trial judge need not specifically state that the defendant was determined to have financial resources and ability to pay; that finding is implicit in the imposition of a fine where the judge is aware of the facts which support such a determination. People v. Bishop (1980), 81 Ill. App. 3d 521, 401 N.E.2d 648.

Moreover, we conclude that the provisions of section 5 — 9—1 have no bearing upon a fine imposed pursuant to section 5 — 9—1.1. A fine assessed pursuant to the latter is to be levied “in addition to any other penalty imposed.” Unlike section 5 — 9—1, section 5 — 9—1.1 contains no provision requiring an examination into an offender’s personal situation. It calls for the mandatory imposition of a fine. Accordingly, a defendant’s financial resources and ability to pay are irrelevant considerations when imposing a fine pursuant to section 5— 9-1.1.

Although it is true that fines are not favored in cases where the defendant does not have the ability to pay (see People v. Oravis (1980), 81 Ill. App. 3d 717, 402 N.E.2d 297), safeguards exist for those who in good faith are unable to pay a fine. In addition to the provisions of section 5 — 9—2, already discussed, section 5 — 9—3(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—3(c)), provides that when an offender unintentionally defaults in the payment of a fine, the court may allow him additional time for payment, reduce the amount to be paid, or revoke the fine or unpaid balance. Section 5 — 6—4(d) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—4(d)) prohibits the revocation of a defendant’s probation for failure to pay a fine unless the failure is due to the offenders’ wilful refusal to pay. Thus, we are not inclined to vacate defendant’s fine even if uncertainly exists as to her ability to pay it.

For all the foregoing reasons, we conclude that section 5 — 9—1.1 of the Unified Code of Corrections is constitutionally sound. The trial court was not required to examine defendant’s financial resources — a fine levied under section 5 — 9—1.1 is mandatory. Although the $500 fine is less than that required by statute, the amount of fine assessed by the trial court has not been contested by the People. Accordingly, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.