Find Legal Information

FIFTH DIVISION
May 11, 2001

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Respondent, Hugo G., a minor, was adjudicated a delinquent forcommitting armed robbery and two counts of battery. He wassentenced to 4 years' probation, 60 days in the juvenile detentioncenter and 100 hours of community service. The court also imposedthe following conditions of probation pursuant to the JuvenileCourt Act of 1987 (705 ILCS 405/5-715 (West Supp. 1999)): (1) TASCand Interventions counseling; (2) no loitering between 27th Streetand Kedvale and 28th Street and Kedvale; (3) no association withgang members; and (4) a 7 p.m. curfew.

On appeal, respondent contends that: 1) the petition foradjudication of wardship was defective where it failed to containan allegation regarding where the offense occurred; 2) the evidenceat trial failed to prove beyond a reasonable doubt that the offenseoccurred in the State of Illinois; 3) the State failed to provebeyond a reasonable doubt that respondent was adjudicateddelinquent for committing armed robbery and battery under anaccountability theory; and 4) the trial court abused its discretionby imposing certain restrictive conditions of probation. For thereasons that follow, we affirm.

The following facts were adduced at respondent's adjudicationhearing. On June 14, 1999, at approximately 3 p.m., Juan Gonzalezwas with his family eating at a restaurant on 26th Street. Gonzalez could not recall the name or exact address of therestaurant. Gonzalez was never asked in what city or town therestaurant was located. While eating, Gonzalez noticed two menstaring at him. Gonzalez testified that he thought they werestaring at the chain around his neck. Once Gonzalez and his familyfinished their meal and left the restaurant, they entered theirvehicle. While he was inside the car, Gonzalez saw a group of fourto six people walking toward the vehicle. Gonzalez identifiedrespondent as one of the individuals he saw at that time. Gonzaleztestified that he saw one of the individuals flash a gang sign. One of the individuals, whom Gonzalez could not identify, threw abeer bottle at the car window. After the bottle was thrown, themen approached Gonzalez and his family. Gonzalez testified thatwhen he got out of the car to protect his family from harm, theindividuals began to hit him with bottles and sticks. Gonzalezspecifically recalled that respondent hit him with a stick. Uponseeing her husband being attacked, Gonzalez's wife, NolenoilaBaldonis, attempted to help him, but she was hit also. The attacklasted approximately three or four minutes. Gonzalez testifiedthat during the attack, his gold chain, bracelet and watch werestolen. Gonzalez was unable to identify who took the items fromhim. When the police arrived, the individuals fled, butrespondent, who was 14 at the time, and another individual, wereapprehended at the scene.

On cross-examination, Gonzalez testified that respondent hithim with a bottle rather than a stick. Gonzalez further testifiedthat he told the police that an individual named Roger threw abottle at him. Gonzalez testified that everything happened veryfast and that there was a lot of excitement. Gonzalez thentestified that he saw respondent throw a bottle but did not knowwhether he hit him with it.

Gonzalez's wife, Nolenoila Baldonis, testified that she waswith her husband and children at a restaurant on 26th Street.Baldonis, like Gonzales, could not recall the name or exact addressof the restaurant and did not testify as to the town or city. After eating, they entered the car to leave. Baldonis testifiedthat before she closed the car door, she heard glass fall. She gotdown and then realized that someone had thrown a bottle at the backof the car. Baldonis did not see who threw the bottle. Baldonistestified that when Gonzalez got out of the car, he was attacked byfour to six individuals. Baldonis identified respondent as one ofthe individuals present at the scene and testified as follows:

"A. The guys attacked him to hit him.

Q. Okay; when you say 'the guys,' about how many ofthem were there?

A. There were like (6) or (4), (5) or (6). I'm notsure.

***

Q. What was the minor doing at that time?

A. I didn't see him do anything.

Q. Okay.

A. I didn't notice since there were several.

Q. Was he one of these people, though?

***

A. Yes; he was one of them.

Q. And, what exactly were they doing to your husband?

A. They were hitting him with large tubes."

When Baldonis got out the car in an attempt to defend her husband,she was also attacked. Baldonis testified that the attackers stoleher wallet, which contained $500.

On cross-examination, Baldonis testified that Gonzalez was nothit with a baseball bat, but with something similar to a policeofficer's nightstick. Baldonis further testified that everythinghappened so fast that she did not recognize any of the faces of theindividuals involved in the attack.

Following the close of evidence, the court adjudicatedrespondent delinquent for committing two counts of armed robberyand two counts of battery. In so finding, the court ruled thatrespondent was identified by both witnesses as one of theindividuals involved in the attack. The court also found thetestimony of Gonzalez and Baldonis to be credible.

At the sentencing hearing, respondent's probation officerrecommended that respondent return to custody for TASC and Interventions counseling. The probation officer made thisrecommendation because he was informed by respondent's mother thatrespondent's friends were often at her house allegedly drinking andsmoking marijuana with respondent. The probation officer alsovisited respondent's home during school hours and found him withother minors who were alleged gang members.

Defense counsel argued that counselors from the YMCA also hadbeen to the home and did not witness any drinking or smoking andthat they had been trying to get respondent enrolled in school.

Following respondent's referral to TASC and Interventionscounseling, respondent returned to court for sentencing. Duringthe sentencing hearing, respondent's counsel made a motion for anew trial or, in the alternative, a motion for reconsideration andargued that the testimony of Gonzalez and Baldonis wasinconsistent. Defense counsel also argued that because Baldonistestified that she did not see respondent do anything, the evidencewas insufficient to find respondent guilty. The trial court deniedthe motion.

Respondent's probation officer testified that respondent'smother requested a curfew for her son. The probation officerfurther recommended that respondent be barred from loitering on thecorners of 27th Street and Kedvale or 28th Street and Kedvalebecause these areas are known hangouts for the Two Six Gang. Thetrial court then imposed the following conditions of probation:

"You have to go to school everyday. You have to follow your mother's rules at home, cooperate with theTASC drug program, attend any counseling that'srecommended, not be involved in gangs or hang around withpeople who are in gangs, stay off the corner of 27th andKedvale, and, also, 28th and Kedvale.

Even though you live two blocks away, find some other way to get around. If you do these things, atthe end of five years and, perhaps sooner, your case willbe closed."

The order containing the specifications of the sentence ofprobation phrased the geographical limitation as prohibiting"loitering" on the corners of 27th and 28th and Kedvale.

The court also imposed a 7 p.m. curfew which would remain ineffect until the probation officer indicated it was no longernecessary. The trial court scheduled a progress report forNovember 17, 1999, which was not made a part of the record onappeal. Respondent's timely appeal followed.

Respondent first contends that the petition for adjudicationof wardship is fundamentally defective because it fails to containan allegation of where the offense occurred. The State respondsthat respondent is actually making an argument as to venue. Asrespondent failed to address venue prior to the appeal, the Stateasserts that he has waived his opportunity to be heard on theissue. Notwithstanding waiver, the State argues that the petitionfor adjudication satisfied the statutory requirements.

Respondent bases his contention upon section 111-3 of the Codeof Criminal Procedure of 1963 (Code), which requires that acharging instrument must set forth, inter alia, "the date andcounty of the offense as definitely as can be done." 725 ILCS5/111-3(a)(4) (West 1996). Although respondent concedes that oursupreme court, in In re S.R.H., 96 Ill. 2d 138, 143, 449 N.E.2d 129(1983), held that section 111-3 of the Code does not apply tojuvenile proceedings, he nevertheless asserts that the continuedvalidity of this holding is questionable in light of section 5-101(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-101(3) (West 1999)). Section 5-101(3) of the Act states asfollows:

"In all procedures under this Article, minors shall have all the procedural rights of adults incriminal proceedings, unless specifically precluded bylaws that enhance the protection of such minors." 705 ILCS 405/5-101(3) (West 1998).

The State, on the other hand, asserts that respondent'scontention concerns a question of venue rather than the sufficiencyof the petition. The State claims that because any objection tovenue is considered waived unless made prior to trial andrespondent failed to file any pretrial motions alleging impropervenue, he has waived the issue on appeal. The State further arguesthat, notwithstanding waiver, it is no longer required to provethat the alleged offense occurred in any particular county inIllinois (720 ILCS 5/1-6(a) (West 1996); People v. Gallegos, 293Ill. App. 3d 873, 878, 689 N.E.2d 223 (1997)); therefore, theallegations in the petition were sufficient.

We reject both parties' arguments. Both parties haveoverlooked section 5-520, which sets forth the pleadingrequirements for a petition brought under the Act. Section 5-520of the Act has very different pleading requirements than Section111-3 of the Code. Section 5-520 requires the petition to:

"[A]llege that the minor is delinquent and set forth (a)facts sufficient to bring the minor under Section 5-120;(b) the name, age and residence of the minor; (c) thenames and residences of his parents; (d) the name andresidence of his or her guardian or legal custodian orthe person or persons having custody or control of theminor, or the nearest known relative if no parent,guardian or legal custodian can be found; and (e) if theminor upon whose behalf the petition is brought isdetained or sheltered in custody, the date on whichdetention or shelter care was ordered by the court or thedate set for a detention or shelter care hearing. If anyof the facts required by this subsection *** are notknown by the petitioner, the petition shall so state." 705 ILCS 405/5-520 (West 1998).

Nothing in section 5-520 requires the State to allege thelocation of the offense in the petition. While respondent urges usto apply the requirements of section 111-3 of the Code todelinquency proceedings, in light of section 5-101(3) of the Act,we reject respondent's position. Although section 5-101(3) becameeffective on January 1, 1999, this particular statutory languagewas a part of the Act and its predecessor well before 1999. See Ill. Rev. Stat. 1975, ch. 37, par. 701-2(3)(a); Ill. Rev. Stat.1979, ch. 37, par. 701-2(3)(a); Ill. Rev. Stat. 1991, ch. 37, par.801-2(3)(a); 705 ILCS 405/1-2(3)(a)(West 1996). Indeed, thisparticular language was a part of the statute when our supremecourt made its decision in In re S.R.H. As such, we reaffirm theholding in In re S.R.H. that section 111-3 does not apply tojuvenile proceedings. In re S.R.H., 96 Ill. 2d at 143.

We next address the State's argument that respondent haswaived the issue for review because he failed to file a pretrialmotion alleging lack of venue. We note that the State relies onsection 1-6(a), the venue statute in the Criminal Code of 1961(Criminal Code) (720 ILCS 5/1-6(a) (West 1998)). However, theState has apparently overlooked section 5-135 of the Act, whichgoverns venue as it applies to juveniles. Section 5-135 states inpertinent part:

"(1) Venue under this Article lies in the county where the minor resides, where the allegedviolation or attempted violation of federal or State law or county or municipal ordinance occurred or in thecounty where the order of the court, alleged to have beenviolated by the minor, was made unless subsequent to theorder the proceedings have been transferred to anothercounty." 705 ILCS 405/5-135 (West Supp. 1999).

Notwithstanding the State's oversight, we reject the State'scontention that the issue is one of venue. Respondent specificallyargued that the petition failed to contain an allegation regardingthe place of the offense and explicitly referred to the error as a"pleading defect." We will review the issue as alleging a defectin the pleadings. As respondent correctly points out, "[w]henattacked for the first time on appeal a complaint is sufficient ifit apprised the accused of the precise offense charged withsufficient specificity to prepare his defense and allow pleading aresulting conviction as a bar to future prosecution arising out ofthe same conduct." People v. Pujoue, 61 Ill. 2d 335, 339, 335N.E.2d 437 (1975). This holding was extended to juvenileproceedings in In re S.R.H, 96 Ill. 2d 138, 145, 449 N.E.2d 129(1983).

An examination of the petition under this standard establishesthat it provided respondent with adequate notice of the offensescharged and that the allegations were sufficiently specific topreclude, on double jeopardy grounds, any future prosecution basedon the same conduct.

Respondent next contends that the State did not provejurisdiction in Illinois beyond a reasonable doubt where, at trial,the scene of the crime was identified only as outside of an unnamedrestaurant on 26th Street, with no city or state being named. TheState responds that jurisdiction was proven where the petition wasfiled in Cook County and it alleged violations of statutes pursuantto the Illinois Criminal Code. After oral argument, we granted theState's motion for leave to cite additional authority in furthersupport of its argument. The State relies on State v. Butler, 353Md. 67, 724 A.2d 657 (1999), to support its assertion that onlywhen the evidence presented raised a genuine dispute doesjurisdiction become an element the State must prove beyond areasonable doubt. Butler, 353 Md. At 79, 724 A.2d at 663. TheState asserts that, here, jurisdiction was never an issue; therewas no question raised as to whether respondent committed theoffense in Illinois. In our view, an examination of whethersufficient facts were presented to raise an issue of jurisdictionis unnecessary because respondent's conduct is clearly governed bythe Juvenile Court Act rather than the Criminal Code.

Section 5-120 governs the "Exclusive Jurisdiction" ofjuveniles under the Act and states in pertinent part:

"Exclusive jurisdiction. Proceedings may be instituted under the provisions of this Articleconcerning any minor who prior to the minor's 17thbirthday has violated or attempted to violate, regardlessof where the act occurred, any federal or State law ormunicipal or county ordinance." (Emphasis added.) 705ILCS 405/5-120 (West 1998).

Our research has revealed no case law that has addressed thisnew provision of the Act. This provision was formerly a part ofthe definitional section of the Act under the term "delinquent,"which was defined as "any minor who prior to his or her 17thbirthday has violated or attempted to violate, regardless of wherethe act occurred any federal or State law, county or municipalordinance." 705 ILCS 405/5-105(3) (West 1998). Although the Actis now restructured, this section continues to set forth the"jurisdictional facts" necessary for the institution of delinquencyproceedings under the Act. In re Greene, 76 Ill. 2d 204, 213, 390N.E.2d 884 (1979).

We must draw a clear distinction between the jurisdictionalrequirements of section 5-120 of the Act and section 1-5 of theCriminal Code. Section 1-5 provides in pertinent part:

"(a) A person is subject to prosecution in this State for an offense *** if:

(1) The offense is committed either wholly or partly within this State. 720 ILCS5/1-5 (West 1998).

A review of section 5-120 establishes that the legislature, byinserting the language, "regardless of where the act occurred," hasspecifically excluded a requirement to prove the location of theoffense. Thus, the State was not required to provide evidence ofthe location of the offense in order to establish jurisdiction Although respondent cites several cases in which there wasinsufficient evidence to prove beyond a reasonable doubt that acrime occurred within the State of Illinois, we note that each ofthese cases was governed by the Criminal Code, not the JuvenileCourt Act. People v. Strook, 347 Ill. 460, 179 N.E. 821 (1932)(proof that defendant lived "upon the North Side" or that theburglary occurred on "Chicago Avenue" could not prove beyond areasonable doubt that the offense was committed in either CookCounty or the State of Illinois); People v. Allen, 413 Ill. 69, 107N.E.2d 826 (1952) (street name and number insufficient to provelocation in the absence of evidence of the city itself); People v.Blanck, 263 Ill. App. 3d 224, 635 N.E.2d 1356 (1994) (insufficientcircumstantial and direct evidence to prove that offense occurredwholly or partly in Illinois).

The dispositive issue is whether respondent submitted to thejurisdiction of the court. Where a juvenile appears before thecourt and participates in juvenile proceedings, he voluntarilysubmits to the jurisdiction of the court. In Interest of T.O., 187Ill. App. 3d 970, 973-74, 543 N.E.2d 969 (1989). Here, respondentappeared in response to the juvenile petition alleging delinquentacts and was represented by counsel. In fact, respondent's counselfiled a motion to suppress statements and clearly stated that theoffense occurred "in the vicinity of 3815 W. 26th St, Chicago, IL." We also note that there is nothing in the record to indicate thatrespondent or his parents lacked actual notice of the chargesagainst him prior to trial. Moreover, at the time of theproceedings, respondent made no objection to the court'sjurisdiction and the record shows that he participated fully inthese proceedings. Therefore, on these grounds, we hold that hehas waived any challenge to the court's jurisdiction. In re W.D.,194 Ill. App. 3d 686, 691, 551 N.E.2d 357 (1990).

Respondent further contends that the evidence at trial did notshow beyond a reasonable doubt that he was adjudicated delinquentunder an accountability theory for armed robbery or battery. Inorder to convict a defendant on a theory of accountability, theState must establish the following beyond a reasonable doubt: (1)that the defendant solicited, ordered, abetted, agreed, orattempted to aid another in the planning or commission of thecrime; (2) that the defendant's participation took place before orduring the commission of the crime; and (3) that the defendant hadthe concurrent intent to promote or facilitate the commission ofthe crime. People v. Carrizales, 240 Ill. App. 3d 893, 608N.E.2d 30 (1992).

Respondent argues that there was no evidence of an agreementor that he had a prior relationship with the alleged attackers orthat he planned and participated in the commission of the armedrobbery or battery.

An examination of the evidence in the case at bar establishesthat there is sufficient proof of respondent's accountability forthe crime. Gonzalez and Baldonis both made in-courtidentifications of respondent and testified that he was present atthe time the attack occurred. Although respondent argues thatBaldonis testified that she did not see respondent do anything, adefendant may be found to have aided and abetted without activelyparticipating in the overt act itself. People v. Stanciel, 153Ill. 2d 218, 237, 606 N.E.2d 1201 (1992). Respondent was closeenough to the scene of the crime and there is no evidence toindicate that he attempted to stop the attack or seek help for thevictims.

Respondent further argues that Gonzalez's testimony was notcredible where he testified at trial that respondent hit him witha stick, but then on cross-examination testified that respondentthrew a bottle. Gonzalez also testified that he told the policethat a person named Roger threw a bottle at him and that he wasunsure whether he was actually hit by the bottle thrown byrespondent. Respondent asserts that these inconsistencies inGonzalez's testimony cannot sustain a conviction. We findrespondent's argument unpersuasive. Although Gonzalez testifiedthat he told the police that another individual threw a bottle, heconsistently stated that respondent was involved in the attack. Itis the responsibility of the trier of fact to determine thecredibility of witnesses, the weight to be given their testimonyand the reasonable inferences to be drawn from the evidence. People v. Steidl, 142 Ill. 2d 204, 226, 568 N.E.2d 837 (1991). Here, the trial court observed both witnesses during theirtestimony and found them to be credible. The court further addressed the inconsistencies in Gonzalez's testimony and foundthey did not detract from his testimony, finding that it would bedifficult for the victims to plainly identify which attacker didwhat during the altercation.

Respondent also argues that the State failed to prove thatrespondent intended to commit armed robbery or battery. Todemonstrate a defendant's intent to promote or facilitate a crime,the State must show either that the defendant shared the criminalintent of the principal or that there was a common criminal design. In re W.C., 167 Ill. 2d 307, 337, 657 N.E.2d 908 (1995). Intentmay be inferred from the nature of the defendant's actions as wellas the circumstances surrounding the commission of the offense. People v. Perez, 189 Ill. 2d 254, 266, 725 N.E.2d 1258 (2000). This is a question of fact. The trial court's findings in thiscase are not against the manifest weight of the evidence. Theevidence in this case clearly shows that the entire group acted asthey did to achieve the armed robbery of the victims and that thiswas accomplished by the group as a whole.

Finally, respondent contends that the trial court abused itsdiscretion in imposing certain conditions of probation. The Stateresponds that respondent has waived this issue on appeal because hefailed to file a motion to reconsider or reduce his sentence. Ingeneral, the failure to object or file a motion to reconsider orreduce sentence operates as a waiver of the issue. However, thewritten post-trial motion requirement is inapplicable todelinquency appeals. In re W.C., 167 Ill. 2d 307, 318-27, 657N.E.2d 908 (1995). Therefore, we will address the merits ofrespondent's arguments.

Respondent argues the trial court erred in prohibitingrespondent from loitering at 27th and 28th Streets and Kedvale,associating with gang members and imposing a 7 p.m. curfew wherethere was no testimony that any gang members were involved in theincident or that the incident occurred at 27th and 28th Street. Respondent argues that the conditions banning loitering at thatlocation, banning association with gang members and establishing a7 p.m. curfew are overly broad and infringe upon his constitutionalrights.

The trial court is given a great deal of discretion inchoosing the conditions of probation to be imposed upon aparticular defendant. People v. Kimbrell, 291 Ill. App. 3d 605,607, 684 N.E.2d 443 (1997). In assessing the appropriatedisposition for a minor, the trial court has the discretion tochoose among the various alternatives provided for in the Act;however, delinquency proceedings should be considered protectiverather than punitive in nature. In re J.C., 260 Ill. App. 3d 872,884, 632 N.E.2d 127 (1994). Section 5-715 of the Act sets forthseparate conditions that the trial court may impose as conditionsof juvenile probation and states the following, in relevant part:

"(2) The court may as a condition of probation or of conditional discharge require that the minor:

* * *

(r) refrain from entering into a designated geographic area except upon terms as the court findsappropriate. The terms may include consideration of thepurpose of the entry, the time of day, other personsaccompanying the minor, and advance approval by aprobation officer, if the minor has been placed onprobation, or advance approval by the court, if the minorhas been placed on conditional discharge;

(s) refrain from having any contact, directly or indirectly, with certain specified persons orparticular types of persons, including but not limited tomembers of street gangs and drug users or dealers;

* * *

(u) comply with other conditions as may be ordered by the court." 705 ILCS 405/5-715 (West Supp.1999).

"[A] probation condition (whether explicitly statutory or not)is reasonable if the trial court believes the condition would be agood idea and the record contains no indication that the court'simposition of the condition is clearly unreasonable." In re M.P.,297 Ill. App. 3d 972, 976, citing People v. Ferrell, 277 Ill. App.3d 74, 79 (1995).

In support of his assertions that the conditions of hisprobation had no connection to the offenses or to the advancementof his rehabilitation, respondent relies on In re J.G., 295 Ill.App. 3d 840, 692 N.E.2d 1226 (1998). In J.G., the trial courtmodified its order regarding a juvenile's conditions of probationto include banishment from the Village of Skokie, almost ninemonths after he was found delinquent. The respondent contended onappeal that banishing him from Skokie was an improper condition ofhis probation because it was not related to his criminal acts or tothe victims. After reviewing the statutes, cases and purposes ofthe juvenile probation act, this court held that banishing therespondent from Skokie had nothing to do with his delinquent actsor rehabilitation and reversed the trial court. J.G., 295 Ill.App. 3d at 843-44. The record established that the respondent wasbarred from entering Skokie because his girlfriend lived there andher parents wanted to keep him away from their daughter. None ofthe victims of the crime resided in Skokie nor did respondentcommit any delinquent acts there. Consequently, this court heldthat the condition was unreasonable and an abuse of discretion. J.G., 295 Ill. App. 3d at 844. We find J.G. distinguishable fromthe instant case.

Here, the record contains no indication that the trial court'simposition of conditions of probation was clearly unreasonable. The record demonstrated that the trial court took intoconsideration the testimony of respondent's probation officer, whowitnessed respondent associating with known gang members at a timewhen he should have been in school. While respondent argues thatthere was no evidence that the individuals involved in the attackwere gang members, we disagree. Gonzalez testified that one of theattackers flashed a gang sign. We also note that the armed robberytook place between four and five blocks from the street corners onwhich defendant was ordered to avoid loitering.

Respondent also urges us to find that (1) prohibiting him fromloitering on the corners of 27th and 28th and Kedvale, (2)prohibiting him from associating with gang members; and (3)imposing a 7 p.m. curfew infringe upon his rights of association,assembly, expression and the personal liberties protected bysubstantive due process. Our supreme court recently held that acity "gang loitering" ordinance was violative of substantive dueprocess because persons suspected of being involved in street gangsunder the terms of the ordinance were deprived of their right tofreely walk the streets and associate with friends. City ofChicago v. Morales, 177 Ill. 2d 440, 687 N.E.2d 53 (1997), aff'd,527 U.S. 41, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999). We findrespondent's reliance on Morales and similar cases to be misguided. Here, the value to the public of the imposition of these conditionsof probation, far outweighs any impairment of respondent'sconstitutional rights. See In re M.P., 297 Ill. App. 3d at 977. We hold that respondent's commission of armed robbery and batterydictates that restrictions be placed upon his liberty for thesafety of the public and for the advancement of the rehabilitationof respondent, who was 14 at the time the offenses occurred. Wealso note that the court took into consideration respondent'srecent consumption of alcohol and marijuana and that his motherspecifically requested a curfew. Thus, adjudged in accordance withthe appropriate standard of review and the specific statutoryauthorization of section 5-715 of the Act (705 ILCS 405/ 5-715(West Supp. 1999), we hold that the trial court did not abuse itsdiscretion by imposing these conditions of probation in this case.

Accordingly, the judgment of the circuit court of Cook Countyis affirmed.

Affirmed.

THEIS, and REID, JJ., concur.