People v. Garza

August 12, 1998

No. 2--97--0470
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County
)
Plaintiff-Appellee, )
)
v. ) No. 96--CF--1323
)
JESUS A. GARZA, ) Honorable
) Barry E. Puklin,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
_
JUSTICE BOWMAN delivered the opinion of the court:
On July 9, 1996, defendant, Jesus Garza, was arrested in
connection with the beating and armed robbery of Antonio Martinez.
After a bench trial, the trial court convicted defendant of armed
violence, armed robbery, aggravated battery, unlawful possession of
a weapon by a felon, possession of a firearm without a firearm
owner s identification (FOID) card, and mob action. On appeal,
defendant raises the following contentions: (1) the evidence was
insufficient to prove him guilty beyond a reasonable doubt; (2) his
sentences for armed violence and possession of a firearm without a
FOID card violate the proportionate penalties clause of the
Illinois Constitution; and (3) his armed violence conviction is
invalid because it was the product of impermissible double
enhancement.
At trial, Antonio Martinez testified that, around 3:45 p.m. on
July 9, 1996, he drove to the Union 76 gas station at the corner of
Dundee and Franklin in Elgin in order to make a call at the pay
phone there. As he was talking on the phone to his friend Delores
Espinoza, he observed a gray car drive past the gas station. He
recognized the three individuals in the car. Defendant s brother
Christian Garza (Christian), also known as "Rambo," was driving the
car. Defendant, also known as "Chewy," was sitting in the front
passenger seat, and Jose Arizmendi, also known as "Curious," was
sitting in the back seat. Martinez knew defendant and Christian
because they were members of the Latin Kings and, until a few years
before trial, Martinez had been a member of the Maniac Latin
Disciples, a rival gang. In addition, he had previously called the
Garza brothers house to speak to their 15-year-old sister.
As they drove by Martinez, the three occupants of the car
shouted names at him, such as "pussy" and "bitch." Martinez did
not respond. Thirty seconds to a minute later, he observed the car
driving back toward the gas station from the opposite direction.
It stopped next to the station in the middle of Franklin Street.
Defendant then exited the car from the front passenger seat
and began walking toward Martinez. As he approached Martinez,
defendant pulled a five-inch-long pistol from his clothing. He
cocked and pointed the pistol at Martinez and said, "[W]hat s up
now, bitch." Martinez said nothing in response but dropped the
phone and put his hands up. Although he did not make any movement
toward defendant, defendant hit him on the head with the pistol,
knocking him to the ground.
After Martinez fell to the ground, Arizmendi and Christian
exited the car. They and defendant proceeded to punch and kick
Martinez. Martinez could not tell if defendant was hitting him
with the gun during this time, but at some point defendant dropped
the gun. Martinez attempted to retrieve it, but Arizmendi
immediately grabbed it. While Martinez was on the ground, one of
his three attackers tore the gold chain and medallion Martinez was
wearing from his neck. Defendant, Christian, and Arizmendi then
ran to their car and drove away.
After firemen treated Martinez for his injuries, he
accompanied police officer Chad Van Mastrigt to the Elgin police
station. At the station, he was shown three photographic lineups.
In the first lineup he identified Christian as one of his
attackers; in the second he identified Arizmendi, and he selected
a photograph of defendant from the third lineup.
Martinez denied that Espinoza visited his house on the day of
the beating. Although he testified that she came to his house a
few days later, he denied talking to her about the beating.
Martinez also admitted that he is a convicted felon.
Delores Espinoza testified that, during the afternoon of July
9, 1996, Martinez called her from a pay phone. She knew Martinez
because he was a Maniac Latin Disciple in July 1996, and her
brothers were in the same gang. She denied being a member or
associate of a gang.
While Espinoza was talking to Martinez on the phone, in
addition to his voice, she heard "a lot of people yelling" and
saying things to provoke Martinez. She recognized one of the
voices as "Chewy s." She heard "Chewy" call Martinez a "bitch" and
ask him if he wanted to fight. In response, Martinez yelled,
"pussy-ass Kings" and "bitch."
Later that day, Espinoza gave a taped statement to police.
She told police that the voice she recognized during the phone call
belonged to "Chewy." Although she testified at trial that in July
1996 she thought that "Chewy" was Jose Arizmendi s nickname, she
admitted telling police that "Chewy" was defendant. Also, after
testifying that she had known defendant only for about a year, she
admitted telling police in 1996 that she had known him for three or
four years.
Espinoza further testified that, after leaving the police
station on July 9, she visited Martinez s house. Martinez showed
her his gold chain and medallion and stated, "[Y]ou thinking I m
gonna let those motherf------ take my chain." He also told her
that his attackers did not have a gun. Espinoza testified that she
subsequently told "Officer Schultz" what Martinez had said, and he
told her that she could just change her statement when she
testified.
Espinoza acknowledged that she had been adjudicated a
delinquent minor and, shortly after July 9, 1996, had spent time in
a youth home. She admitted that she saw Jose Arizmendi at the
youth home, but stated that they were prevented from talking
because Espinoza had been subpoenaed to testify in connection with
defendant s trial.
Elgin police officer Chad Van Mastrigt testified that on July
9, 1996, he was dispatched to the Union 76 station. The station,
which included a convenience mart, was open to the public, had
places for parking, gas pumps, and two public pay phones. When
Mastrigt arrived at the station, Martinez was being treated for
head wounds by the fire department. Mastrigt spoke to Martinez
about the beating but did not find any weapon in the area and was
unable to find any witnesses to the events Martinez described.
Mastrigt then accompanied Martinez to the police station, where
Martinez identified defendant, Christian, and Arizmendi from three
different photographic lineups he was shown at the station.
Elgin police officer Jeffrey Adam testified as a gang expert.
He stated that, based on his contact with defendant, Christian, and
Jose Arizmendi, he knew that all three were members of the Latin
Kings. According to Adam, "Chewy" was defendant s nickname, not
Jose Arizmendi s.
Adam also testified that, based on his contact with Martinez,
he knew that Martinez was a member of the Maniac Latin Disciples.
According to Adam, Martinez was not an active member of this gang
in July 1996 because he had fallen out of favor with the gang for
cooperating with police, but he became an active member again about
a month before trial. The Union 76 station was in Maniac Latin
Disciple territory. Adam also testified that Espinoza was a member
of the Lady Disciples, although she was not an active member at the
time of trial because the gang was defunct.
In addition to this testimony, the State presented a
stipulation that defendant had been convicted of a burglary, a
Class 2 felony, in 1994.
After the State rested its case, the trial court denied
defendant s motion for a directed verdict. Defendant then began
his case in chief with the testimony of Christian Garza. Christian
testified that on July 9, 1996, he was driving a car in which
defendant and Arizmendi were passengers. Defendant was riding in
the front passenger seat. After stopping at a car repair shop and
his girlfriend s house, Christian drove on Dundee toward his house.
As they were driving past the Union 76 station, they heard
Martinez, who was using a phone at the station, scream at the car.
No one in the car said anything to Martinez, but Christian drove to
the entrance of the station to see what Martinez wanted.
Defendant, who was angry, then exited the car to talk to Martinez,
who was still yelling.
Christian testified that, as defendant approached Martinez,
Martinez swung the phone receiver at defendant and hit him in the
head. On cross-examination, however, he testified that the phone
cord was only 18 to 24 inches long and that defendant was standing
three to four feet from Martinez when Martinez struck him with the
receiver.
Christian further testified that, after Martinez hit defendant
with the phone receiver, defendant hit Martinez in the face with
his hand. Martinez then tripped and fell to the ground, and
defendant, who had positioned himself on top of Martinez, continued
"pounding on his face." Defendant then jumped back in the car,
where Christian and Arizmendi had remained, and they drove to
defendant s girlfriend s house. According to Christian, defendant
did not have a gun during the fight. Christian admitted that, as
a juvenile, he had been convicted of aggravated battery.
Similarly, defendant testified that, as they drove past the
Union 76 gas station, they saw Martinez at a pay phone and Martinez
began yelling at them. They drove into the parking lot of the gas
station, and defendant exited the car and walked toward Martinez.
Defendant explained that, when he stopped at the gas station, he
knew that there was going to be a fight between him and Martinez
because Martinez had been harassing his family. Defendant was
angry because Martinez had called his house and asked to speak to
defendant s sister. When he saw Martinez, he planned to beat him
up to keep him away from his sister.
As he approached Martinez, defendant said, "[W]hat s up."
Martinez replied "[W]hat s up" and threw the phone receiver at him,
hitting him on the side of the face. Defendant then put his hand
in front of his face, but Martinez "came at" him. Defendant
punched Martinez in the face so hard that he fell to the ground.
He then kicked Martinez a few times and punched him in the face.
Martinez attempted to hit defendant, but he could not because
defendant was on top of him. Defendant then ran back to the car.
According to defendant, he did not have a gun, and Christian
and Arizmendi remained in the car during the fight. Defendant also
denied taking Martinez s gold chain and medallion.
After defendant s testimony, the defense rested its case. As
rebuttal, the State presented a stipulation that, if called to
testify, Officer Van Mastrigt would testify that when defendant was
arrested there was no visible injury to his face.
The trial court found defendant guilty of armed violence,
armed robbery, robbery, two counts of aggravated battery, unlawful
possession of a weapon by a felon, possession of a firearm without
a FOID card, and mob action. It entered judgment on all counts but
one of the aggravated battery counts and the robbery count. It
found that one of the aggravated battery counts merged with the
verdict on the armed violence count and that the robbery count
merged with the verdict on the armed robbery count. The trial
court sentenced defendant to 15 years imprisonment for the armed
violence conviction, 6 years for armed robbery, 4 years for
aggravated battery, 5 years for unlawful possession of a weapon by
a felon, 2 years for possession of a firearm without a FOID card,
and 3 years for mob action. The sentences were to run
concurrently. The trial court denied defendant s motions for a new
trial and for reduction of sentence.
Defendant s first contention on appeal is that the evidence
was insufficient to sustain his convictions. The relevant inquiry
when reviewing a sufficiency of the evidence argument is whether,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. People
v. Dunskus, 282 Ill. App. 3d 912, 918 (1996). A reviewing court
will not reverse a conviction unless the evidence is so improbable
as to create a reasonable doubt with respect to defendant s guilt.
People v. Collins, 106 Ill. 2d 237, 261 (1985). A conviction may
be upheld based on the testimony of a single witness, if positive
and credible, even if this testimony is contradicted by the
defendant. People v. Grano, 286 Ill. App. 3d 278, 290 (1996).
Defendant first argues that the evidence was insufficient to
support his conviction of armed robbery. According to defendant,
it was error for the trial court to "ignore" testimony by him,
Christian, and Espinoza, and choose to believe instead Martinez s
testimony about the gold chain. A reviewing court, however, cannot
substitute its judgment for that of the trier of fact with respect
to the weight of the evidence and the credibility of the witnesses.
People v. Draheim, 242 Ill. App. 3d 80, 88 (1993). The trier of
fact is in the best position to assess the credibility of the
witnesses, to determine the weight to be given to their testimony,
and to resolve any conflicts in their testimony. People v.
Schoenneman, 237 Ill. App. 3d 1, 4-5 (1992).
Based on these principles, we refuse to overturn the trial
court s determination that Martinez s testimony about the facts on
which the armed robbery conviction was based was more credible than
the testimony of defendant, Christian, and Espinoza. In addition,
we note that the trial court s credibility determinations are
supported by the record.
As the trial court found, defendant s and Christian s
descriptions of the confrontation were inconsistent with each
other. While Christian testified that Martinez fell to the ground
during the fight because he tripped, defendant testified that he
punched Martinez so hard that it caused him to fall to the ground.
Defendant s and Christian s testimonies were also inconsistent with
Espinoza s testimony. Although they testified that Christian and
Arizmendi remained in the car during defendant s fight with
Martinez and did not yell anything at him, Espinoza testified that
she heard "a lot of people yelling" during her conversation with
Martinez.
Other aspects of defendant s and Christian s testimonies also
suggest that Martinez s description of the attack was the more
credible version. For example, defendant and Christian testified
that Martinez dealt the first blow in the fight by hitting
defendant in the face with the phone receiver. The phone cord,
which was only 18 to 24 inches long, however, would have prevented
Martinez from reaching defendant with the receiver if, as Christian
testified, defendant was standing three to four feet from Martinez
at the time of the blow. The fact that defendant had no visible
facial injuries when he was arrested later that day also undermines
the claim that Martinez struck him in the face with the phone
receiver.
Moreover, defendant s own testimony shows that he was the
aggressor in the fight. Martinez was making a phone call in his
own gang s territory when defendant and his companions stopped,
admittedly to fight him because of Martinez s efforts to contact
defendant s sister.
Martinez s testimony, on the other hand, did not contain
similar discrepancies. Although the trial court found that his
credibility was shaken by the fact that he was a convicted felon
and had lied about his gang membership, it believed his testimony
about the beating and robbery because the facts Martinez related
were corroborated. For example, defendant s and Christian s
testimonies corroborated Martinez s testimony that defendant was
the aggressor in the fight, that defendant knocked him to the
ground, and that defendant then repeatedly punched and kicked him.
In addition, Espinoza s testimony that she heard several
voices yelling during her phone conversation with Martinez
corroborated Martinez s testimony that Arizmendi and Christian were
also involved in the attack. Although Espinoza did contradict
Martinez s testimony that defendant had a gun and that his gold
chain was stolen, the trial court was justified in finding Espinoza
unbelievable with respect to these subjects, given that she did not
include this information in her original statement to police.
Based on the record and the deference we must give to the
trial court s credibility determinations, we do not find the
evidence insufficient to sustain defendant s conviction of armed
robbery.
We also reject defendant s assertion that the evidence was
insufficient to support his conviction of armed violence.
According to defendant, his conviction of aggravated battery under
section 12--4(b)(1) of the Criminal Code of 1961 (Code) (720 ILCS
5/12--4(b)(1) (West 1994) (use of a deadly weapon in committing a
battery)) was based on the act of striking Martinez with the
pistol. Therefore, this act could not have formed the basis for
his armed violence conviction, which was predicated on the felony
of aggravated battery under section 12--4(b)(8) of the Code (720
ILCS 5/12--4(b)(8) (West 1994) (battery on or about a place of
public accommodation)). Instead, his armed violence conviction
must have been based on the acts of punching and kicking Martinez.
However, defendant contends that he was not armed at the time he
punched and kicked Martinez because he dropped the pistol after
striking Martinez with it. Because the evidence failed to
establish that he was "armed with a dangerous weapon" at the time
he performed the acts on which his armed violence conviction is
based, defendant asserts that this conviction must be reversed. We
disagree.
Since defendant and Christian denied that there was a pistol
involved in the fight, the only testimony about the pistol came
from Martinez. Contrary to defendant s assertion, Martinez did not
testify that defendant dropped the pistol immediately after
striking him with it. Instead, Martinez testified to the following
sequence of events: defendant hit him with the pistol, he fell to
the ground, Christian and Arizmendi exited the car, they and
defendant punched and kicked him, he saw the pistol hit the ground,
and Arizmendi retrieved it and ran for the car. This testimony
permitted a rational trier of fact to conclude that the gun was
dropped toward the end of the beating and that defendant was,
therefore, armed at the time he performed the acts on which his
armed violence conviction was based.
Finally, we hold that defendant s challenge to the sufficiency
of the evidence supporting his mob action conviction is without
merit. According to defendant, his conviction of mob action must
be reversed because there is no evidence that the public peace was
disturbed. In support of this argument, defendant asserts that
Officer Van Mastrigt could locate no occurrence witnesses and,
therefore, the "public" element is missing. As the State correctly
notes, however, acts constituting mob action need not occur in
public view. See People v. Dixon, 91 Ill. 2d 346, 354 (1982).
Next, defendant claims that his armed violence conviction must
be reversed because it is disproportionate in violation of article
1, section 11, of the Illinois Constitution of 1970, which
provides, "All penalties shall be determined *** according to the
seriousness of the offense ***." Ill. Const. 1970, art. I, 11.
In arguing that the penalty for armed violence based on
battery on or about a place of public accommodation while armed
with a pistol is disproportionate, defendant compares it to the
penalty for aggravated battery with a firearm and aggravated
discharge of a firearm. The mandatory minimum sentence for armed
violence is 15 years imprisonment (see 720 ILCS 5/33A--3(a) (West
1994)), while the minimum sentence for aggravated battery with a
firearm is 6 years (see 720 ILCS 5/12--4.2(a)(1), (b) (West 1994);
730 ILCS 5/5--8--1(a)(3) (West 1994)), and the minimum sentence for
aggravated discharge of a firearm is 4 years (see 720 ILCS 5/24--
1.2(a)(2), (b) (West 1994); 730 ILCS 5/5--8--1(a)(4) (West 1994)).
Defendant argues that, because it is more serious to actually shoot
at someone with a firearm than to commit a battery while armed, it
is unconstitutional for the penalty for the latter to be greater.
Legislative enactments are presumed constitutional, and a
party bringing a constitutional challenge has the burden of
establishing a constitutional violation. In re S.G., 175 Ill. 2d 471, 486 (1997). The legislature has wide discretion to set the
penalties for defined offenses, and a penalty will not be
invalidated unless it clearly exceeds the very broad constitutional
limitations that apply. People v. McGee, 257 Ill. App. 3d 229, 232
(1993). Because the legislature is better able to gauge the
seriousness of different offenses, courts will not interfere with
its judgment with respect to criminal penalties unless the
punishment is cruel, degrading, or so wholly disproportionate to
the offense that it shocks the moral sense of the community.
People v. Caballero, 237 Ill. App. 3d 797, 809 (1992).
Defendant relies on several cases in which courts have found
a penalty disproportionate because an identical offense was
punished less severely. See, e.g., People v. Lewis, 175 Ill. 2d 412 (1996); People v. Christy, 139 Ill. 2d 172 (1990); People v.
Beard, 287 Ill. App. 3d 935 (1997). In People v. Lewis, 175 Ill. 2d 412, for example, the supreme court held that it was
unconstitutional to punish armed violence more harshly than armed
robbery because the elements of these offenses were the same. The
defendant in that case had been charged with both armed robbery,
for which there was a mandatory 6-year minimum sentence, and armed
violence based on robbery with a category I weapon, for which there
was a 15-year mandatory minimum sentence. The supreme court found
that these were identical offenses because the commission of a
robbery with a handgun also constitutes armed violence. Because
armed violence based on the commission of a robbery with a handgun
was punished more harshly, the court held that this penalty
violated the proportionate penalties clause. Lewis, 175 Ill. 2d at
418.
In the case before us, by contrast, the offenses defendant
asks us to compare are not identical. Proof that an offense
occurred on or about a public place of accommodation is not
required for a defendant to be convicted of aggravated battery with
a firearm or aggravated discharge of a firearm. Likewise, proof
that a firearm was discharged is not required for an armed violence
conviction predicated on a violation of section 12--4(b)(8). See
720 ILCS 5/12--4(b)(8), 12--4.2(a), 24--1.2(a)(2), 33A--2 (West
1994).
Accordingly, cases involving a comparison of identical
offenses do not govern the outcome of this case. As defendant
acknowledges, this case involves the comparison of different
offenses. Thus, a "cross-comparison" analysis applies. See People
v. Davis, 177 Ill. 2d 495, 504 (1997). Under this analysis, we
must determine whether conduct that creates a less serious threat
to the public health and safety than other conduct is punished more
harshly. See Davis, 177 Ill. 2d at 504-05.
Contrary to defendant s argument, the degree of harm is not
the only factor to be considered in determining the seriousness of
an offense. See People v. Lee, 167 Ill. 2d 140, 146 (1995). The
legislature may choose to punish a particular crime more harshly
based on other factors, such as the frequency of the crime, the
need to halt an increase in the commission of that crime, or the
high risk of bodily harm associated with the crime. Lee, 167 Ill. 2d at 146.
Here, the legislature could have reasonably concluded that,
because of the risk of bodily harm to members of the public, it was
necessary to punish armed violence based on battery on or about a
place of public accommodation more severely than aggravated battery
with a firearm or aggravated discharge of a firearm. Although, of
course, there is a high risk of bodily harm associated with
discharging a firearm, a battery committed by an armed individual
also carries with it a high risk of injury, and the risk that
someone will be injured in the course of that battery is multiplied
when the battery occurs in public. In other cases, we have upheld
the legislature s efforts to attach severe penalties to offenses
committed in public because of its legitimate interest in
protecting public safety. See People v. Buie, 217 Ill. App. 3d
786, 789 (1991) (a battery that occurs in public poses a greater
threat to the community than battery that is not committed in
public and therefore is a valid aggravating factor); see also
People v. Cole, 47 Ill. App. 3d 775, 780 (1977). Because we cannot
conclude that the penalty for armed violence based on a battery on
or about a place of public accommodation is " 'so disproportionate
to the offense that it shocks the moral sense of the community or
is cruel or degrading' " (People v. Johns, 153 Ill. 2d 436, 449
(1992), quoting People v. Bryant, 165 Ill. App. 3d 996, 1000
(1988)), we hold that it does not violate the proportionate
penalties clause.
Defendant also argues, however, that his conviction of armed
violence must be reversed because it was based on impermissible
"double enhancement." The State responds that defendant waived
this issue by failing to raise it before the trial court and by
failing to include it in a posttrial motion. Waiver aside, we find
that there was no double enhancement and refuse to reverse
defendant s armed violence conviction on this basis.
"Double enhancement" occurs when an aggravating factor used to
enhance an offense or penalty is used again to subject the
defendant to further enhancement of an offense or penalty. People
v. Thomas, 171 Ill. 2d 207, 223 (1996). According to defendant,
the fact that his battery of Martinez occurred on or about a place
of public accommodation was used twice, once to enhance the charge
against him from battery to aggravated battery and again as a basis
for his armed violence charge because the underlying felony for his
armed violence charge was aggravated battery under section 12--
4(b)(8) (battery committed on or about a place of public
accommodation).
In support of his double enhancement argument, defendant
relies on People v. Haron, 85 Ill. 2d 261 (1981), and People v.
Bragg, 126 Ill. App. 3d 826 (1984). In both of those cases, the
courts held that aggravated battery under section 12--4(b)(1) (use
of a deadly weapon in committing a battery) may not serve as the
predicate felony for an armed violence conviction. This is
because, under those circumstances, the involvement of a deadly
weapon is used twice, once to enhance the battery offense from a
misdemeanor to a felony and again as the basis for the armed
violence charge. See Haron, 85 Ill. 2d at 278; Bragg, 126 Ill.
App. 3d at 834-35.
When an armed violence charge is premised on aggravated
battery under a section other than section 12--4(b)(1), however,
courts will not find double enhancement. For example, in People v.
Hugues, 230 Ill. App. 3d 192, 199-200 (1991), the court held that
there was no double enhancement when the defendant s armed violence
conviction was predicated on a battery causing great bodily harm in
violation of section 12--4(a). See also People v. Miller, 284 Ill.
App. 3d 16, 21-23 (1996); People v. Damnitz, 269 Ill. App. 3d 51,
61-62 (1994).
In this case, there was no double enhancement. An examination
of defendant s indictments indicates that the predicate felony for
his armed violence conviction was aggravated battery under section
12--4(b)(8) (battery on or about a place of public accommodation).
He was also charged separately with aggravated battery under
section 12--4(b)(8). The trial court did not enter judgment on
this aggravated battery charge, however, because it found that it
merged with the verdict on the armed violence count. Although
defendant was convicted of aggravated battery, this conviction was
based on the aggravated battery charge under section 12--4(b)(1)
(use of a deadly weapon in committing a battery).
Contrary to defendant s argument, therefore, the fact that the
battery occurred on or about a place of public accommodation was
not used as an aggravating factor twice. It was used only once, as
the basis for the felony on which the armed violence conviction was
predicated. Thus, there was no double enhancement.
Although we affirm defendant s convictions of armed violence,
aggravated battery, armed robbery, unlawful possession of a weapon
by a felon, and mob action, we reverse his conviction of possession
of a firearm without a FOID card. In People v. Davis, 177 Ill. 2d 495, 508 (1997), the supreme court held that the penalty for
violations of section 2(a)(1) of the Firearm Owner s Identification
Card Act (430 ILCS 65/2(a)(1) (West 1994)) violates the
proportionate penalties clause of the Illinois Constitution when
compared to the penalty for unlawful use of a weapon by a felon.
Based on this case, the State concedes that defendant s conviction
of possession of a weapon without a FOID card must be reversed.
The judgment of the circuit court of Kane County is affirmed
in part and reversed in part.
Affirmed in part and reversed in part.
THOMAS and HUTCHINSON, JJ., concur.