*1 prohibit maintaining against from a suit defendants. employee 3d at 517-18. Villapiano, us, on the case hold posture
Based this before -we plaintiff’s the release Mikenas was not effective bar signed by is no action, cause of as indi subrogee employer, because release was in plaintiff cation consented or plaintiff demnified, there a court order. Plaintiff’s protected by complaint, fore, should not have been dismissed. reasons, of the circuit foregoing judgment
For reversed, proceed- cause remanded for and the Page County Du this ings opinion. not inconsistent with
Reversed and remanded.
UNVERZAGT, P.J., NICKELS, J., concur. ILLINOIS, Plaintiff-Appellee, THE OF THE STATE OF PEOPLE SCHNURR, Defendant-Appellant. ETHEL JEAN 2 — 88—1050 Second District No. 19, 1990.
Opinion filed December *3 GEIGER, JJ., REINHARD and specially concurring.
G. Weller Joseph Wiltgen, Appellate and Steven E. both of State De- Office, Elgin, fender’s of appellant. for Logli, Attorney, (William
Paul L. A. State’s of Rockford Browers and Burns, Office, Mary Attorneys Appellate Prosecutor’s Beth both State’s counsel), People. for the of the court: opinion JUSTICE McLAREN delivered Defendant, Schnurr, (Ill. Ethel Jean was convicted of solicitation 1) sentenced to 10 par. years’ Rev. Stat. ch. and was 8— her her appeals Defendant now both conviction and imprisonment. sentence. affirm. approached (Trotter) Vernial Trotter on about Octo- $1,000 husband, Emil 19, 1987, and him to murder her
ber offered in- Trotter evening, Schnurr At 5:30 that (Emil). approximately Trotter plan. evening, formed the defendant’s Later police about as device, which he wore eavesdropping was fitted with electronic hours morning to Emil’s home in the early he and defendant traveled and conversation defendant of October 20. Parts between Trotter Emil’s home and waited Trotter were recorded. entered Emil a He then returned to defend- briefly and detective. Emil dead. Moments ant’s vehicle and informed defendant that later, Trial defendant’s vehicle and arrested defendant. police stopped for solicitation and a 10- jury resulted in defendant’s conviction by term. year prison which, her own admis raises issues
Defendant first several are sion, for trial. These issues in her motion a new were raised of the eaves laid for admission (1) proper whether a foundation was re admitting testimony in (2) the court erred dropping tape; whether (3) eavesdropping tape; transcript garding accuracy Trotter testimony in refusing whether the court erred allow the court erred conviction; (4) for a whether prior probation lied to her hus previously in had admitting testimony defendant case; (5) no connection having band about matters stood admitting testimony that defendant whether the erred acknowledges his death. Defendant upon to inherit Emil’s estate post- trial and written objection raise an error both a failure to (See People v. Enoch issue. trial motion constitutes waiver these defendant 186-87.) 122 Ill. 2d to raise the failure considered waived because issues should be of ineffective assistance result post-trial the issues in the motion counsel. counsel, a assistance of To ineffective prove was deficient and performance must that counsel’s establish errors, the that, for counsel’s probability but a reasonable v. Al- (People different. have been proceedings outcome of would
527 504, find that has failed (1984), 525.) banese 104 Ill. 2d We to of the in Albanese. Defendant’s prove prong adopted either test argument the of her counsel’s regarding deficiency performance is raised that the failure to raise in a motion all post-trial objections at of drags performance objective trial counsel’s standard below do reasonableness. We not find this Defense counsel persuasive. raised 19 issues in the motion. Counsel is not to post-trial required raise trial in a motion. The inclusion of an every objection post-trial issue is a matter trial is great of such entitled to strategy; strategy 782, deference on v. Ptak Ill. (People App. review. 193 3d 789.) Defendant concedes that otherwise performance counsel’s not objectionable. conclude that defense counsel’s performance and reasonable effective. addition,
In prove defendant has failed to that she was preju Enoch, diced her counsel’s performance. the court found that the defendant failed to show ineffective assistance of counsel because that, he did not show but for counsel’s failure to file a mo post-trial tion, he would not have 202; been 122 2d (Enoch, convicted. Ill. at see also People 294, v. Williams (1989), 180 Ill. Un 300-01.) der this we find that analysis, counsel’s failure to raise the five con post-trial tested issues the motion did affect the of outcome the trial and defendant’s conviction.
Defendant’s first is contention that the State to dem failed onstrate a proper foundation for the admission of the eavesdropping tape. original The tape was sent the to Federal Investiga Bureau of tion (FBI), order, to pursuant i.e., court for “cleansing,” removing static to enhance the sound of tape. the The court allowed the cleansing of the tape the condition “that Mr. Berry coun [defense bewill when the present made, are copies exchanged mutually sel] between you argues Defendant now that admission of [trial counsel].” the tape was error the because State did not demonstrate that no changes affecting were made the of integrity the Defendant tape. 452, cites 92 Nieves Ill. 2d for the proposition once some evidence tampering disturbing the of a re integrity cording introduced, the State must lack show a of alteration. Nieves dealt with section of the 7(b) Code Criminal Proce 108A— dure which provides recordings that all con eavesdropped versations must be made to the the judge issuing available eaves dropping order the immediately order; after expiration the the court is to (See then seal the Ill. recordings. Rev. Stat. ch. par. 7(b).) supreme Our court determined that the purpose 108A— this requirement was “to prevent tampering, alteration or editing at (Nieves, to 92 Ill. 2d tapes.”
and the of the preserve integrity *** that, issue immediacy, The then held the “[w]here and evidence challenges if a defendant the some integrity presents *** State, to the challenge, the burden should shift support Nieves, must have not been altered.” tapes the State show that 2d at 462. now must prove State of the Assuming, arguendo, applicability tape was altered. standard, any defendant has failed introduce evidence Nieves tape. of the defendant has shown integrity While challenge FBI, she has not shown evidence any was sent tape The integrity tape the FBI fact tape. disturbed *6 The closest challenge not a to its away specific integrity. was sent is stating a the was challenge tape’s integrity defendant comes to of he to the van that the first words she Trotter as returned spoke This, however, was the first words heard on the tape. were not tape to the and is insufficient conjunction challenge raised in in of eavesdropping find no error the admission the any event. We tape. motion is whether post-trial
The next issue not raised the that testimony it was error to before the foundational place jury of was an accurate reflection eavesdropping tape of the transcript that the tran testimony the contents of the The court admitted tape. Lar tape the of the from Karen reproduced content script accurately son, of the Rockford tape, Pirages the Officer who transcribed Defend transcription, in the and Trotter. who assisted department, the of a accuracy transcript acknowledges ant evidence v. Dogoda the transcript. (See People for admission of necessary Ill. 3d 198, 202; (1989), 187 Rogers Ill. (1956), 9 2d accu However, that evidence the 126, 132-34.) argues the as evidence jury was offered to substantive transcript of the racy merely a foundation. and not as the transcripts Before argument unpersuasive. find this
We the court ad and the tape played, to the jury were distributed the as followed: jury monished the give until I you at them
“THE Don’t look COURT: statement, please. the receiving a transcript gentlemen, and you’re
Ladies in consideration aiding you purpose for the limited tape and shortly hear tape going of the you’re the contents is the other any purpose, considered for not be should The as guide considered or should be transcript, [sic]. and if you is a factor. When controlling should be and tape transcript, between the and conflicting tape find facts evidence.” transcript should not considered as be to the court admonition, this was tendered conclude which limited nature by defendant, jury inform the adequate and of the accuracy value of Given the fact transcript. to, be could do no more to limit transcript must attested court the jury’s consideration of the tes- transcript. argues timony accuracy have regarding transcript should been given However, cite jury’s outside defendant can no au- presence. for this thority position, adopt this and we see no reason to new rule. We find no error in the testimony. admission of foundational
The allegation next not raised in the motion that the post-trial limiting erred in defendant’s cross-examination of Vemial Trot- ter. regarding Defendant elicited from Trotter Trotter’s testimony murder, armed robbery, convictions of attempted burglary. How- ever, when defendant Trotter if were asked he for his probation latest conviction, burglary the State’s was sustained objection by court. Defendant now that the court’s lim- ruling erroneously bias, ited her right reveal Trotter’s or possible prejudice, ulterior motive. bias, interest,
Cross-examination to show or to testify motive falsely is a matter of right. (People v. Triplett this right is Questioning unfettered. cannot be re petitive unduly and the rise harassing, give evidence must to an inference witness has something to lose or his testi gain therefore, mony; the evidence must not be remote or uncertain. *7 Triplett, 2d at 108 Ill. 475-76. us,
In the case before was at defendant straws grasping when she asked Trotter his It probation. undisputed about is that Trotter voluntarily approached the with police information about the cooperated investigation. solicitation and their Trotter had noth ing to to gain by going police nothing the and to lose if he had sim ply told defendant “No” and never again. mentioned this episode People Paisley (1986), v. Defendant cites 149 Ill. for App. 3d the that, proposition when a witness’ impeaching credibility, is a distinction evidence of prior between convictions and evidence of bias; therefore, to the according defendant, of evidence Trotter’s prior convictions was not sufficient to impeach Trotter’s integrity. Paisley Paisley distinguishable. is The witness had current him; charge the pending against or possibility bias motive there Here, however, was evident. no charges against were Trot- pending Trotter, reason nothing ter. The had to offer and he had no to police other than to the crime. Be- report report the incident to probation would have revealed question cause defendant’s about value, There- nothing any prejudice. defendant has failed to show fore, it not error limit cross-examination of Trotter. to
Next, certain her own and testimony, defendant both Emil, Emil testi that of should not have elicited the State. been that, solicitation, year before the defendant lied approximately fied from gone him her and that she often was employment to about of her own testimony, over entire course home weekends. told Emil that the cus defendant was forced to admit that she never children, ir relationships, all from had been tody previous her five fact, she that, spoke of this often revocably spite terminated con Emil the children live with them. Defendant having to about lied oc prior that this evidence tends show she on tends matters, inadmissible being per unrelated such evidence casions about v. However, con People Garza App. 3d 723. State the entire mar tends this evidence was introduced to show that trust, one based on riage Emil and Ethel Schnurr was not love one on and hidden motives. but founded deceit misplaced. Garza held that
Defendant’s reliance on Garza estab credibility by reflect a witness’ permissible “[i]t un totally lied about a lishing that on a former occasion witness (Garza, 92 Ill. 737.) in the case 3d at App. related matter.” also us, a witness but merely Ethel Schnurr was before nature the mar The to show the attempting defendant. State was The the with her husband. State’s riage relationship and defendant’s “one lie.” The testi marriage big objected-to was that ory such, As it marriage. to show the nature of mony was relevant it tends to defend prejudice not be excluded because simply should ant; the must the relevance of evidence and trial court balance v. (See People Daniels 164 Ill. to the defendant. prejudice a trial reviewing A court will not reverse 1078.) App. of discretion to admit evidence absent abuse court’s determination (Daniels, 3d at prejudice. defendant’s admitting its discretion in the trial court did not conclude that abuse Therefore, present. no error is the testimony. testimony the introduction also contests
Defendant his death. upon inherit all of Emil’s estate she stood of a motive evidence testimony this was inadmissible contends cites argument, To this support for murder. Holtz, court held that the supreme 143. In our Holtz (1920), 294 Ill. *8 beneficiary evidence of life insurance with defendant as policies victim was joint tenancy murder ownership property insufficient, evidence, to show motive for the absence of other defendant to murder the 294 Ill. at (Holtz, 161-62.) victim. here that Holtz makes of Paul testimony inadmissible Cicero, an the intestate of Emil’s es attorney, regarding distribution However, tate in the event of his death. this court does not read Holtz to prohibit introduction of such evidence.
Erickson 89 Ill0. App. similarly this court held that existence of a life insurance had little policy sig defendant’s wife nificance in establishing (Erickson, defendant’s motive to murder her. 3d at the introduction of of the evidence policy error, was not found to be let alone reversible error. Holtz and evidence, Erickson dealt with the not the admissi sufficiency bility it;of defendant does not make as to any persuasive argument why this court should issue such a new rule. The admission of the ev idence not error.
Because none the issues above would have been decided in defendant’s favor had they preserved motion, been in a post-trial the omission of these issues did not affect defendant’s conviction. Therefore, representation counsel’s of defendant ineffective. The five issues raised in the post-trial motion are waived.
Defendant next contends that the court erred in her mo- denying tion to suppress eavesdropping tape portions of her conversa- tion with Trotter. The authorizing obtained order the prior use of an eavesdropping contending device on October that an situation existed emergency which rendered an attempt unreasonable to secure a prior night here, order the before. Defendant argues as she did in her motion to unsuccessfully suppress, that no emergency existed and that a order prior should have been obtained. We dis- agree.
Emergency use of devices eavesdropping is covered in sec tion 108A—6 of the Code of Procedure of Criminal which pro vides in part:
“An when, emergency situation exists without no- previous tice to the law prior ju- to obtain enforcement officer sufficient dicial approval, the conversation to be overheard or recorded time, within will occur a short period use of device for the necessary protection of law enforcement officer or it will occur in a involving situation a clear and present imminent danger great death or harm to re- bodily persons (1) from: sulting kidnapping holding hostage or the of a force; the oc (2) of the imminent use of force or the threat imminent use of force or the threat of the by force cupation *9 vehicle, aircraft.” (Emphasis vessel or place, any premises, 38, 1989, 6.) Stat. ch. added.) (Ill.. par. Rev. 108A— monitored the conversation between police that the argues for receiving a sufficient basis hours after eight her and Trotter eavesdropping. to the prior seeking eavesdropping application an at approxi- the solicitation to the about spoke police Trotter first at 9:50 again to spoke police 19. He on October mately p.m. 5:30 house. Trotter to view Emil’s with defendant having gone after p.m. when he showed two after 11 p.m. met sometime finally police house, given knife, pair gloves and a to Emil’s key detectives behest, defend- Trotter, phoned police’s at the by to him defendant. of a “hit man” the services employ to her to ant to convince try an place to Trotter; attempting were reality, police known refused to hit man. Defendant in the role of the officer undercover At that Trotter kill Emil. approxi- and insisted meet else anyone phoned again Trotter 12:40 a.m. on October mately of the murder. Defendant insisted effort to the commission delay an for her alibi to immediately committed murder had to be that the meet at 1:30 a.m. Trotter agreed and Trotter work. Defendant device. eavesdropping fitted with the was then it to conclude circumstances, deem reasonable In these we device eavesdropping an definitely know that did not police that the outfitted with or even who would be evening required would be officer or even infiltrate an undercover Attempts such a device. a.m., min 12:40 approximately defeated at the murder were delay him to Emil’s Trotter and take to pick up utes defendant was before type period this 50-minute determine house. We for in the statute. provided of time” period “short no- eight had over hours’ police that the argument Defendant’s meritless. Defendant to take place tice conversation before call during phone 5:30 police provided that Trotter cause to believe to establish probable necessary with all the evidence Therefore, ac- committed. of solicitation had been the offense eavesdrop- defendant, could have authorized cording judge in- than nothing more The had police this information. based on ping whom they from a man with offense alleged an regarding formation at that time to believe had no reason They dealt. had never before evening. take necessarily place would eavesdropping that any seeking eavesdropping per- an delay not impermissibly The did that the trial court did conclude therefore mit during period. not err in denying defendant’s motion to suppress eavesdropping tape.
Defendant next contends that in refusing the court erred her ten- dered jury instructions on theft and solicitation to commit theft. Defendant argues that she presented evidence she solicited Trot- ter Emil, not to murder Therefore, but to commit the crime of theft. defendant, according to she was entitled to a jury instruction on her theory disagree. case. We general, a defendant is entitled to have the in jury
structed on his of the case theory and on the applicable any law statement of facts which the jury may properly find to have been proved. v. (People (1988), Isbell 177 Ill. App. 3d In a crimi case, nal very slight evidence given on a theory giving will justify instruction on that theory. (People Cobb 186 Ill. App. 3d 898, 906.) However, a defendant charged single with a offense cannot be convicted of an offense not charged unless the offense of which he is found is a guilty lesser-included offense of the one charged. People v. Schmidt 183.
Defendant did testify that she solicited Trotter to com mit the offense of However, theft. solicitation to commit theft is not a lesser-included offense of solicitation to commit murder. For an of fense to included, be lesser charged offense must include every “[t]he element of offense, the lesser an plus additional element or elements, so that one cannot commit the offense charged without committing the lesser offense.” v. (People 204, Stroner 96 (1983), Ill. 2d Clearly, one can solicit murder without soliciting theft. defendant argues the State is not to required prove the solicita tion of a specific offense to obtain a conviction of solicitation. Ac defendant, to cording to prove a solicitation the State need only prove that some offense was solicited. The offense of solicitation con tains two (1) elements: an intent that an offense committed; be and (2) the encouragement, or request command on part of the ac cused that the offense be (See committed. Ill. Rev. Stat. ch. 38, par. 1(a).) According defendant, to whether murder or theft 8— solicited, the elements of same; the offense are therefore, the commission of one offense entails the commission of the other. We find this argument unpersuasive. The offense solicited is an es sential part of both the charging instrument and the proofs adduced at trial. The State charge could not and present evidence that defendant solicited “an offense” without what that specifying offense (See was. People George v. 67 3d App. (indict ment must include the elements of the offense intended to be
charged, apprise defendant the offense to enable him to prepare defense, identify and the offense to sustain a of ac- sufficiently plea for the same quittal prosecutions conviction bar further any offense).) addition, require In Pattern Instructions Jury Illinois in the the insertion the offense solicited solicitation instructions. Instructions, Criminal, 6.01, (See (2d Illinois Pattern 6.02 Jury Nos. defendant, to ten- 1981).) contrary ed. We note that her position, theft. specifying dered instructions offense of conclude that We to theft is not of solicita- solicitation commit a lesser-included offense tion to commit murder. are that solic similarly unpersuaded argument
We defendant’s by to to solicitation itation commit theft lesser alternative offense commit The lesser alternative offense concept murder. raised in 131-32 first v. Pedersen People J., Pedersen, In (McLaren, concurring). the context of an defendant is not entitled to instruction on solicitation commit Pedersen, charged aggravated battery theft. defendant was bit, he kneed officer to arrest punched, attempting after and resisting him. The defendant tendered a instruction on arrest jury the trial The there was which was refused court. defendant by officer; knee, and he contending punch that he did bite that, he could be found merely argued given presented, facts aggravated battery. arrest instead of guilty resisting us, not follow argument In the does case before defendant’s committed crime these lines. Defendant that she a different facts, i.e., Trotter that she did not talk to about based different be- murder, Clearly, similarity theft. there is no factual but about those defend- asserted alleged charge tween facts lesser offense ant. to define how a alternative attempting Without arise, to Pedersen. factually inapposite we find this case be might not a of- theft lesser-included conclude that solicitation of entitle the fense, nor is sufficient evidence to Therefore, refusing did not err in thereon. the court instruction *11 instructions. defendant’s her sentence. She regarding
Defendant raises several issues next a it con- trial court because believed argues first erred Therefore, minimum sentence. of carried with it a viction solicitation find a new hearing. We do not sentencing a new defendant seeks hearing necessary. concurred, stated, that a counsel
The trial court and both minimum years’ entailed sentence of six of a conviction solicitation a involves now that such conviction agree Both parties imprisonment.
535 1987, 38, 1(b); no Peo (See par. minimum term. Ill. Rev. Stat. ch. 8— 41, ple Eddington v. that the 47.) argues Defendant sentencing trial court’s of the law a new misapprehension requires A trial of a minimum hearing. disagree. misapprehension court’s it sentence new requires sentencing hearing only appears when that the sentencing court’s mistaken belief influenced the arguably 77 decision. Ill. the trial court (Eddington, 48.) Eddington, 2d at believed that incorrectly provided four-year statute minimum commit murder; sentence for to solicitation defendant was sentenced to a of years. term 20 to 40 77 Ill. 2d at The court (Eddington, 47.) in above, after Eddington, stating the rule found general was no indication that the trial court minimum used the incorrect term as a in point determining reference im ultimately sentence posed. (Eddington, 48.) 77 2d at We conclude that the misappre hension law the trial court in the case before us similarly was not as in used a reference The court point passing sentence. found factors fact aggravation, including the that Emil was a paraplegic, and also sought stated that it to use the sentence to de ter from committing others crime. us These facts lead to con clude that the not court did use the incorrect minimum sentence as a point reference in determining We, defendant’s ultimate sentence. therefore, hold that the error was harmless.
Defendant next sentencing seeks a new hearing because the trial court allegedly incorrectly concluded that defendant eligible Assuming, receive extended-term arguendo, sentence. defend ant sentence, was not for an eligible extended-term defendant has attempted even to show error court’s affected the sen tence actually imposed. (See 114 Ill. 2d People White enhancement, without years’ Even defendant faced im up prisonment; she received sentence years. Clearly, imposed exaggerated by was not court’s consideration the enhancement therefore, We, provisions. need not remand for resentencing. trial finally judgment Defendant contends that court’s be amended. sentence order must The mittimus this case de clares that defendant was guilty found “Solicitation Commit Murder that she was convicted solicita [sic].” tion, murder, commit crime solicitation to which did not exist at her time of conviction. we see no prejudice defend ant as it argument from the mittimus reads. Defendant’s some one her confuse conviction with conviction the later-enacted may (Ill. 1.1) Murder” Stat. ch. par. “Solicitation Rev. 8— weak; same, titles are not the and “Solicitation of Murder” did *12 536 1, 1988,
not until well after the date defend- July become effective addition, a minimum ant’s crime. In solicitation murder carries to 10 years. of 15 sentenced years; sentence we will result. Because possibility any There is little confusion no will not remand this cause for issuance of find we prejudice, new mittimus. reasons,
For the of the circuit court Winne- judgment these is affirmed. bago County
Affirmed. REINHARD, concurring:
JUSTICE specially in the of the of the circuit judgment While I concur affirmance court, I “lesser offense” em do not believe that the term alternative useful purpose defendant and McLaren serves ployed any Justice by I am give the a lesser offense instruction. in whether analysis means the term “lesser alternative offense” uncertain what precisely 195 People in v. Pedersen as first coined Justice McLaren by 121, J., his (McLaren, concurring), nor is creation App. Ill. 3d 131-32 in on enlightening the non-included offense” Pedersen term “lesser in Rather, authority supreme I of our court rely this subject. appropriate Bryant (1986), 113 Ill. 2d which states People v. not on a offense which is to an instruction lesser analysis respect charged, to the as follows: a lesser-included offense offense offense must a broad foun “To the extent that the lesser have greater, in instrument we believe charging dation out main outline of the in case set the indictment this here. The property offense the defendant proposed lesser obvious foundation damage building to the allege all the ele expressly the indictment did charge; that not, view, in our fatal under of the lesser offense is ments in cases consolidated in two Notably, these circumstances. charg in offense, theft, was named Dace, simply the lesser at the instruments, and, taken with evidence introduced ing trials, instruc was found sufficient warrant defendants’ Ill. at (113 offenses.” tions on the lesser 102-03.)Applying 104 Ill. 2d v. Dace (See People also not have a foundation here, commit theft does solicitation to analysis thereof, theft, the elements charging in the instrument because in mentioned the information. were never in have holding Bryant may that this I further out point would (1988), 126 Ill. 2d v. Schmidt into question been called stated, charged single wherein court “where an accused is with a charged unless it offense he cannot be found of an offense guilty Pedersen, 184-85; (126 a lesser included Ill. 2d at see offense.” Thus, (Reinhard, J., 3d at 134 under Schmidt dissenting).) the defendant here is not entitled to an instruction on solicitation to commit theft it was neither nor is it a lesser-included charged because offense. Whether is a conflict between and Schmidt is a Bryant question supreme which the case. may address a future *13 GEIGER, concurring:
JUSTICE specially Subject to the I in Justice following exception join spe- Reinhard’s cial concurrence.
Like Reinhard, I disagree Justice with Justice McLaren’s term offense”; rather, “lesser alternative I it believe that is more appropri ate to look to the criteria set forth in People Bryant v. of People consideration Schmidt 126 Ill. 2d
179.
I
emphasize
would
that in the context of determining whether the
defendant was entitled
offense,
instruction
a lesser
Bryant court did
simply give
a traditional included offense analy
sis
offense charged by
Rather,
the charging instrument.
Bryant
looked to whether the lesser offense had a broad
foundation in the charging instrument and whether the evidence pre
sented at trial could have
a
rationally sustained
conviction
lesser offense and an acquittal
greater.
See
As Justice Reinhard points the later Schmidt decision stated defendant could be convicted of charged offense or a lesser-included offense of charged (126 offense I9ll.2d at 184-85). However, in it doing so made Bryant no mention of or the Bryant discussion of the meaning “included offense” in this context. Con find, I sequently, would not as Justice implies, Bryant’s Reinhard apparently interpretation broad of “included offense” is moribund.
Since the record this fails to appeal satisfy requirements set forth in or the Schmidt broader test in I Bryant, concur that the trial court should be affirmed.