text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GENEVA, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1663
    Opinion filed April 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogan, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State's Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Diann Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, John Geneva, was convicted of aggravated criminal sexual assault, criminal sexual assault, unlawful restraint, and aggravated battery. The trial court sentenced him to serve concurrent terms of 15 years, 10 years and 3 years, respectively, on the first three convictions and sentenced him to a five-year term for aggravated battery, that term to be served consecutively. Defendant alleges the following errors on appeal: that the trial court abused its discretion in denying defendant’s motion for a new trial based on newly discovered evidence; that the State failed to prove him guilty of aggravated criminal sexual assault beyond a reasonable doubt; that the trial court improperly convicted him of aggravated criminal sexual assault and the lesser included offenses of criminal sexual assault and unlawful restraint; that the trial court improperly considered that complainant was injured as an aggravating factor when sentencing defendant to a term of five years for aggravated battery; that the trial court improperly sentenced defendant to a consecutive term for aggravated battery; and that the trial court abused its discretion in imposing the total sentence.

The following testimony was elicited at trial. Complainant testified that she met defendant in the summer of 1984 and that they dated until October 1985.

On February 21, 1986, defendant called complainant at work and asked if she wanted to go out dancing with friends. She agreed to go and agreed to pick defendant up at his house because his car was not working. Complainant arrived at defendant’s house at approximately 6 p.m. When defendant came out of the house, he was carrying a shovel. Defendant told her he had to drop the shovel off at a friend’s house. Defendant put the shovel in the trunk and got in the driver’s side of the car. Complainant stated that he normally drove her car. She also noticed that he had a gun. When she asked him what the gun was for, defendant said he had to drop it off at a friend’s house.

Defendant drove toward the Melrose Park Inn. Previously, defendant had told complainant that they were going to a hotel to a party before going dancing. Defendant registered at the motel, parked the car, and told complainant to get out. He directed her to room 238 and followed her up the stairs to the room.

When they arrived in the room, defendant told complainant to get comfortable and to watch some television. She took off her shoes, sat on the bed and began to watch television. Defendant went into the bathroom. When he came out a few minutes later, he was fully clothed, but complainant recalled that he looked like a different person.

Complainant testified that defendant told her to take her clothes off and when she refused, he threatened to hurt her. She then heard clicking noises, similar to metal hitting metal. She stated that defendant pushed her on the bed and started taking her shirt off. She began crying and screamed at defendant. Defendant told her to shut up so other people could not hear her screams. Defendant then removed their clothes. He placed the gun on the floor at the foot of the bed. It was the same gun she had seen when defendant first got into her car.

Complainant stated that defendant knelt on her shoulders, pushed her face toward him and tried to force her to have oral sex with him. Complainant refused and kept turning her head away. Defendant got on top of complainant and had vaginal intercourse with her. He then turned her over and had anal intercourse with her. Complainant was crying, and defendant told her to be quiet. When she tried to scream, defendant put his hand over her mouth.

After the act, complainant put her shirt on and noticed that she was bleeding from between her legs. Defendant brought complainant her clothes and told her to hurry up because they were running late. Complainant did not know to what defendant was referring. Complainant finished dressing in the bathroom and put a piece of toilet paper in her underwear to stop the bleeding. Defendant directed her to be quiet and threatened to hurt her if she screamed or said anything when they left. He then messed up the bed and walked out of the room. They were in the motel room for approximately one half hour. She noted that as they left she saw the outline of the gun behind defendant’s trousers.

They entered the car, and defendant began to drive north on Mannheim Road. Complainant asked him why he was doing this to her, and he replied that he loved her. When complainant looked out the window, defendant told her to stop in case people saw her crying.

When they reached Irving Park Road near O’Hare airport, defendant pulled the car onto the shoulder. He got out of the car and took the keys from the ignition. He opened the trunk of the car and removed the shovel. Complainant stated that defendant pulled her out of the car and pushed her down to a ditch. He told her that “[i]f it’s not there, it’s your fault. We are running late.” Complainant did not know to what he was referring. Defendant attempted to dig a hole in the ditch but was unsuccessful as the ground was frozen.

Defendant told complainant to stand by a nearby tree. When she asked him if they ever were going out with friends, defendant replied that they were not and that he “had this planned out pretty good.” Complainant asked if he was going to shoot her. Defendant replied, “No, I don’t want people to know it’s my bullet inside of you because I love you.” Complainant told defendant she wanted to go home. She then took her shoes off so she would be able to run if she had the opportunity to do so. Defendant squatted on the ground with his left hand on the back of complainant’s coat. He told her that they would leave after the last set of cars passed. When complainant saw the last car go by, she told defendant that she wanted to leave. She then felt what appeared to be defendant punching her in the stomach. She saw a knife lying on the ground, and she tried to grab it and throw it over the fence. Before she was able to do so, defendant tackled her and threw her to the ground.

Complainant testified that she ran out into the street, but no cars would stop. She attempted to get into her car, but defendant pulled her out and hit her head on the roof of the car. He tried to pull her into the ditch, but she held onto the bumper and screamed. She stated that defendant began to break down. He kissed her cheeks and told her that they both needed help. She then realized that defendant had stabbed her in the stomach. She told defendant to get away from the car. He started the car and offered to drive her to the hospital. He asked if she wanted her shoes, and she replied that she did. When defendant went in the ditch to get her shoes, complainant got into the car, locked the doors and drove to Westlake Community Hospital.

Susan Sacco, a registered nurse at Westlake Hospital, treated complainant in the emergency room at 7:20 p.m. Sacco testified that complainant said that her ex-boyfriend raped and stabbed her. The emergency room staff pumped her stomach to ensure that she had no internal bleeding. Complainant’s blood pressure dropped, and she complained that she was nauseated and proceeded to vomit. Sacco prepared the Vitullo kit to test for any evidence of blood or semen on vaginal slides. Complainant had not informed Sacco that she had been anally penetrated. Complainant was admitted to the intensive care unit of the hospital and remained there for two days. She was a patient in the hospital for four more days.

Officer Larry Piemonte testified that he spoke with complainant on February 21, 1986. Complainant told him that defendant had sexually assaulted her but did not specify what type of intercourse had occurred. She stated that she and defendant went to the motel because defendant had a change of clothing in one of the rooms. She also told him that defendant had a gun, but that she first observed the gun as defendant was opening the door to the motel room. When Piemonte first spoke with complainant at the hospital, he took notes and then wrote his police report at the police station.

Detective Hillard Pulikowski testified that on February 21, he talked to complainant at Westlake Hospital. Complainant told him that she and defendant were going to “Rocky’s” first, but that defendant instead drove to the motel. She told Pulikowski that she first saw defendant with a gun when she went to pick him up. Complainant told Pulikowski that defendant had raped her vaginally and anally, and that he had hurt her.

Defendant testified in his own behalf. Defendant stated that he and complainant engaged in consensual sexual intercourse that night and that they had engaged in sexual intercourse on prior occasions in complainant’s car. On the day of the occurrence, complainant called him, and despite the fact that he told her he was going out with some friends, she appeared at his door that evening. She sat in his living room for approximately 15 minutes, and they then left his house. Complainant drove the car, and they proceeded directly to the motel. Defendant exited the car and went to get a room.

In the room, they sat down on the bed and began watching television. Defendant began kissing complainant. They engaged in foreplay and then vaginal intercourse. Defendant denied having anal intercourse with complainant. He further denied that complainant asked him to stop or to leave, or that she screamed and cried. Defendant informed complainant that she was bleeding. Complainant went into the bathroom to get dressed. When she came out, they left the motel.

Defendant stated that complainant drove from the motel to the outskirts of O’Hare airport. She pulled over to the side of the road, and they exited the car. They began discussing defendant’s girlfriend. When he told complainant that he and his girlfriend had broken up but still saw each other on and off, complainant became upset.

Defendant testified that at this point, he pulled a knife from his pocket in order to clean his nails. As he was doing so, defendant told complainant that he no longer wanted to see her. Complainant began to walk away, and defendant grabbed her right arm and yanked her towards him. He stated that she fell into the knife. He dropped the knife and asked if she was all right. She responded that she did not know. He offered to take her to the hospital, but she refused and told him to leave her alone. She went to the driver’s side of her car and asked defendant to get her shoes. As he did so, she drove away. Defendant stated that he had neither a gun nor a shovel. He further stated that he never struck complainant.

After complainant left, defendant’s friend, Vito Roberto, picked him up. Defendant tried to locate complainant to see if she was all right. He and Roberto first went to Gottlieb Hospital and then to Westlake Hospital. Defendant did not enter the hospital because he was scared. He testified that when he discovered that complainant had been injured he was hurt and upset. Defendant turned himself in and was arrested on March 1, 1986.

The parties stipulated that if called to testify at trial, Morris Tomasec would testify that he was employed at the Melrose Park Inn on February 21, 1986. He also would testify to a receipt filled out and signed by defendant and to the receipt of $25 for room 238.

The parties further stipulated that the Vitullo evidence collection kit was packed by Sacco prior to her turning it over to Detective Pitassi. Pitassi brought that kit back to the police station, where it was put into an evidence locker. The kit subsequently was transferred to Mohammed A. Tahir, a forensic scientist, who identified seminal material on a vaginal swab, a vaginal smear, and a cervical smear.

The parties also stipulated that if called to testify at trial, Dr. Gafoor of Westlake Hospital would testify that he treated complainant. Complainant had a stab wound to the upper abdomen and several cuts on her right hand and chest. Pursuant to his orders, complainant was put on a cardiac monitor and was given an EKG, an ice-pack for her right upper-shoulder area, and two intravenous solutions. Pre-operative work and X rays were ordered.

In his appeal, defendant first contends that the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. Defendant maintains that a statement which complainant made about defendant eight months prior to the occurrence undermines her credibility and requires that this court remand for a new trial.

In order to warrant a new trial, newly discovered evidence must be of such conclusive character that it probably will change the outcome of the trial, must be material to the issue but not merely cumulative, and must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) Defendant has failed to meet these requirements.

The evidence which defendant maintains requires a new trial is the following statement made by complainant: “I can’t stand the girl that [defendant] is with now and if I can’t have him I don’t want anyone else to.” This statement simply is not of such conclusive character that it would change the outcome of the trial. Moreover, the jury heard ample evidence of the parties’ relationship and, accordingly, complainant’s statement was merely cumulative insofar as it suggests that she may have had a motive to lie. Finally, this statement is not of such character that it could not have been discovered prior to trial by the exercise of due diligence. The witnesses at the time of the statement were defendant’s brother, defendant’s girlfriend and another friend. There has been no showing that these parties were not available to defendant prior to and during the trial. Accordingly, we find that the trial court properly denied defendant’s motion for a new trial based on newly discovered evidence.

Defendant next contends that he was not proved guilty of aggravated criminal sexual assault beyond a reasonable doubt. He alleges that the State’s evidence was insufficient and that complainant’s testimony was incredible.

A reviewing court will not reverse a conviction unless, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) It is the function of the trier of fact to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Ahern (1983), 119 Ill. App. 3d 532, 456 N.E.2d 852.) When there is a conflict in the testimony, it is the duty of the trier of fact to resolve the conflict and to determine which witnesses are credible. (People v. Rynberk (1980), 92 Ill. App. 3d 112, 415 N.E.2d 1087.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the credibility of witnesses and will not reverse a criminal conviction unless the evidence is so improbable as to raise a question of reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

Moreover, a conviction for aggravated criminal sexual assault, where defendant denies the charge, will be upheld when there is either some corroboration of the prosecuting witness or where that testimony is otherwise clear and convincing. (Cf. People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) The testimony of the complaining witness, however, need not be perfect in order to be deemed clear and convincing. (People v. Powell (1985), 138 Ill. App. 3d 150, 485 N.E.2d 560.) If the victim’s testimony is clear and convincing, her testimony alone will suffice to sustain the conviction. (People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019; In re C.K.M. (1985), 135 Ill. App. 3d 145, 481 N.E.2d 883.) We find that complainant’s testimony, together with other evidence presented at trial, amply supports defendant’s conviction for aggravated criminal sexual assault. See Ill. Rev. Stat. 1985, ch. 38, par. 12—14.

Complainant testified that defendant called to invite her out and that she agreed to go out with him. She picked him up at his home and observed that he had a shovel and a gun. She willingly went with defendant to the motel because she believed that she and defendant were to meet friends there. When defendant demanded that she take off her clothing, however, she protested. She continued to protest when defendant attempted to force her to have oral sex with him and when defendant forced her to have vaginal and anal intercourse with him. Complainant noted that before these acts occurred, she heard the sound of metal clicking and that she observed defendant place his gun at the foot of the bed.

Defendant testified that he did not have a gun and that he and complainant had consensual vaginal intercourse. He denied that they had anal intercourse. Defendant argues that his version of the incident is more credible than that of the complainant and, in support of this argument, cites People v. Jackson (1989), 178 Ill. App. 3d 785, 533 N.E.2d 996, for the proposition that it is inconceivable that a rapist would take his victim to a hotel where he easily could be detected. The Jackson case, however, is distinguishable. There, a prostitute admitted she suggested to the defendant that they have sexual intercourse in a parking lot. Thus, the Jackson complainant clearly consented to the idea of sexual intercourse. Complainant here did not consent to sexual intercourse. The Jackson case does not require us to reverse defendant’s conviction.

Defendant nonetheless maintains that complainant’s testimony was not clear and convincing, and resulted more from the prosecutor’s leading and improper questions than from her independent recollection of the incident. We do not agree. Whenever defense counsel objected to leading and improper questioning, the trial court sustained those objections, and the jury was instructed to disregard the questions. Complainant presented a reasonable account of the events of February 21, 1986. The fact that there were discrepancies does not detract from the reasonableness of that account. See People v. Nelson (1986), 148 Ill. App. 3d 811, 499 N.E.2d 1055.

Defendant additionally argues that there is no evidence to suggest the use of force. However, when examining the amount of force required to sustain a rape conviction, each case must be examined on the basis of its own particular facts. (People v. Dick (1987), 153 Ill. App. 3d 670, 505 N.E.2d 1157.) Resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, such as where the assailant is armed with a deadly weapon. (People v. Nelson, 148 Ill. App. 3d 811, 499 N.E.2d 1055.) The force element of rape does not depend for its proof on actual physical damage to bodily tissue, and a rape victim is not required to subject herself to serious physical bodily harm by resisting in order to establish that intercourse was nonconsensual. Moreover, it is not required that the victim physically resist before it may be said that a rape has occurred. People v. Nelson, 148 Ill. App. 3d 811, 499 N.E.2d 1055.

Complainant knew that defendant was armed with a deadly weapon and heard clicking noises. Thus complainant reasonably could have concluded that her life was endangered. Furthermore, complainant testified that she refused to take off her clothing, and that she struggled, screamed and cried throughout the incident. Defendant held his hand over her mouth to stifle her screams and cries. Complainant’s testimony adequately established that defendant used force to sexually assault her.

Moreover, the physical evidence supports complainant’s version of the events. Complainant was treated for cuts on her chest and for injuries to her right shoulder. Further, the bloody toilet paper found in her underwear was entered into evidence. This evidence supports complainant’s testimony regarding her struggle as defendant forced her to engage in intercourse. We believe this evidence in conjunction with complainant’s testimony establishes defendant’s guilt beyond a a reasonable doubt.

Defendant contends, however, that complainant’s testimony regarding the presence of the gun was replete with inconsistencies and contradictions. Defendant points to the fact that complainant told Pulikowski, and testified at trial, that she first observed defendant’s gun when he entered her car that evening, but that she told Piemonte, the first person to interview her, that she first observed defendant’s gun when he was opening the door of the motel room. Defendant further notes that no gun was recovered in connection with this incident. Accordingly, defendant concludes that aggravated criminal sexual assault was not proved beyond a reasonable doubt.

A conviction for aggravated criminal sexual assault requires that the accused “displayed, threatened to use, or used a dangerous weapon” during the commission of criminal sexual assault. Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(1).

Complainant testified that she first saw. the gun when defendant entered her car that evening and that she next saw the gun in the motel room. She stated that defendant threatened to hurt her if she did not undress and that she then heard clicking noises similar to metal hitting metal. Defendant then put the gun on the floor. She again saw the gun as the two left the motel room. Complainant’s testimony sufficiently establishes that defendant displayed a gun during the commission of criminal sexual assault. The inconsistencies in the testimony regarding complainant’s first view of the gun do not detract from the reasonableness of complainant’s account. (People v. Nelson, 148 Ill. App. 3d 811, 499 N.E.2d 1055.) This court will not substitute its judgment for that of the trier of fact and, accordingly, will not disturb the jury’s conclusion that defendant was guilty of aggravated criminal sexual assault.

Defendant next contends that the trial court improperly convicted and sentenced defendant for both aggravated criminal sexual assault and criminal sexual assault. Similarly, he contends that the trial court improperly convicted and sentenced him for both aggravated criminal sexual assault and unlawful restraint. Defendant maintains that both criminal sexual assault and unlawful restraint are lesser included offenses of aggravated criminal sexual assault. The State counters that defendant has waived appeal of these issues by his failure to object at trial or to raise the issue in his motion for a new trial. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Nonetheless, we will address defendant’s contentions. See 107 Ill. 2d R. 615(a).

When a defendant is found guilty of two offenses, one of which is a lesser offense of the other, the court shall enter judgment and impose sentence on only the more serious offense. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) Both criminal sexual assault and unlawful restraint are lesser included offenses of aggravated criminal sexual assault. (See People v. Boyer (1985), 138 Ill. App. 3d 16, 485 N.E.2d 460; People v. Allman (1989), 180 Ill. App. 3d 396, 535 N.E.2d 1097.) Accordingly, defendant’s convictions for those offenses were improper. We vacate defendant’s convictions and sentences for criminal sexual assault and unlawful restraint.

Defendant argues that in light of the impropriety of his convictions for criminal sexual assault and unlawful restraint, this court must remand the matter for resentencing. We disagree.

A remand for resentencing is not required on the conviction which is affirmed when a separate sentence has been imposed for each offense. (People v. Poe (1984), 121 Ill. App. 3d 457, 459 N.E.2d 667.) When there is no indication from the record that a vacated conviction had any bearing on the sentence for the affirmed conviction, it is not necessary to remand the cause for resentencing. People v. Einstein (1982), 106 Ill. App. 3d 526, 435 N.E.2d 1257.

Our review of the record reveals no indication that the sentence for aggravated criminal sexual assault was in any way influenced by the two other convictions. The trial court imposed sentences which were within the permitted range for each offense. This court cannot conclude, solely from the trial court’s simultaneous imposition of separate sentences for multiple convictions, that the sentence imposed for one offense has been influenced by the imposition of sentence for the other offenses. (See People v. Martin (1984), 121 Ill. App. 3d 196, 459 N.E.2d 279.) Accordingly, we will not disturb defendant’s sentence for aggravated criminal sexual assault.

Defendant also contends that the trial court improperly considered complainant’s injury as an aggravating factor when sentencing defendant to a term of five years for aggravated battery. In support of this contention, defendant argues that the following comment reflects the trial court’s improper focus on this factor: “It’s a very difficult sentence, sir, but we have a victim who was injured, stabbed. Could have been dead. Isn’t.”

Generally, the trial court is in the best position to evaluate sentencing factors, and its sentencing determination will not be disturbed absent an abuse of discretion. (People v. Moore (1983), 115 Ill. App. 3d 266, 450 N.E.2d 855.) The trial court properly may consider the particular circumstances of the individual case when fashioning its sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Moreover, it is proper to consider certain aggravating factors, including the fact that defendant’s conduct caused or threatened serious harm. Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(a)(1); People v. Childs (1981), 101 Ill. App. 3d 374, 428 N.E.2d 185.

Defendant nonetheless argues that it is improper to consider in aggravation a factor which is implicit in the charged offense. (See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Thus defendant concludes that because an injury is implicit in the offense of aggravated battery, the trial judge should not have considered it.

Here, the trial court considered that complainant was injured and could have died as a direct result of defendant’s commission of aggravated battery. The harm threatened or inflicted during the commission of an aggravated battery is not a static factor, but rather is one which varies from case to case. Aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, par. 12—4(e)), with a permissible sentencing range of three to five years (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(6)). While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and therefore, may be considered as an aggravating factor in determining the exact length of a particular sentence. (People v. Childs, 101 Ill. App. 3d 374, 428 N.E.2d 185.) We believe the sentencing range permits the trial court to consider fluctuating terms such as the degree of harm caused by a defendant’s conduct. Thus, we find that the trial court properly considered that complainant was harmed when imposing sentence on defendant. We hold that defendant’s five-year term for aggravated battery was proper.

Defendant next contends that the trial court erred in ordering defendant to serve his five-year term for aggravated battery consecutively to his 15-year term for aggravated criminal sexual assault. He argues that these sentences should be modified to run concurrently. We agree.

A court shall not impose a consecutive sentence unless “it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(b).) Consecutive sentences should be imposed sparingly. People v. O’Neal (1988), 125 Ill. 2d 291, 531 N.E.2d 366.

Here, at the time of the commission of the crimes, defendant was 22 years old. At the time of the sentencing, he was 24 years old. Defendant had no prior criminal record. Both of his parents testified in mitigation at the sentencing hearing and demonstrated a strong and supportive family. We do not believe that consecutive sentences are necessary to protect the public.

In view of our holding regarding the imposition of a consecutive sentence, it is unnecessary to consider defendant’s final contention that the trial court abused its discretion in imposing a total term of 20 years’ imprisonment.

In sum, defendant’s convictions for aggravated criminal sexual assault and aggravated battery, and the accompanying sentences of 15 and 5 years’ imprisonment, are affirmed. The sentence for aggravated battery is modified to run concurrently with the sentence for aggravated criminal sexual assault. Defendant’s convictions for criminal sexual assault and unlawful restraint are vacated.

Judgments affirmed in part and vacated in part.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    MARY ZITO, Petitioner-Appellee, v. JOHN ZITO, SR., Respondent-Appellant.
    First District (6th Division)
    No. 1—89—0476
    Opinion filed April 16, 1990.

      Nicholas M. Spina and Joseph B. Taconi, Jr., both of Chicago, for appellant.
    Joel S. Ostrow, of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court;

The respondent, John Zito, Sr., appeals from that part of a judgment of dissolution of marriage which disposed of the parties’ property.

The respondent and the petitioner, Mary Zito, originally married on August 16, 1947, but were divorced in 1961. One child was born of this marriage, John Zito, Jr., who was emancipated at the time of trial.

After the parties divorced, the petitioner and her father purchased a house in 1967; title to the house was in the petitioner’s name only, but the father co-signed the mortgage note. Both the petitioner and her father made payments on the mortgage.

On November 24, 1974, the parties remarried. The respondent moved into the petitioner’s house. At that time, the parties began paying the mortgage out of a checking account containing marital funds. Apparently, the checking account was in the petitioner’s name but contained funds earned by the respondent during the marriage and was used to pay all household bills.

In 1979, the respondent’s name was placed on the title and the parties refinanced the existing mortgage debt and added an additional debt of $18,000. The existing mortgage was retired, and the additional $18,000 was paid to the petitioner’s brother to settle a pending lawsuit in which the brother claimed an interest in the property flowing from the father, who had died. The petitioner and respondent both signed the new note secured by the new mortgage and continued to make the new mortgage payments from the same checking account.

Several improvements were made to the house during the parties’ second marriage. A family room, a garage and driveway, a patio, and a sprinkler system were added. Also, the roof and central air conditioning were replaced, and part of the electrical system was rewired. Finally, the kitchen was remodeled and the house was tuck-pointed. Although the only evidence in support of these improvements was the parties’ testimony (no documentation was offered), and although their testimony differed as to the value of the improvements and the source of funds for payment for the improvements, the trial judge concluded that the respondent, by his personal efforts, had made a special contribution to the house totalling $18,400.

The parties’ separate tax returns for 1986 and 1987 were prepared by the same accountant. These returns showed that each party took deductions for one-half of the mortgage interest and one-half of the real estate taxes for each year shown.

The petitioner filed a petition for dissolution of marriage on May 23, 1986. Following the entry of an ex parte order of protection, the court entered a default judgment against the respondent and ordered him to vacate the marital premises. The respondent then successfully motioned to have the default vacated and filed his appearance and answer in September 1986. On October 16, 1986, the court recognized the parties’ stated desire to attempt a reconciliation and allowed them to resume cohabitation as husband and wife. However, on March 9, 1987, on the petitioner’s motion, the court set the case for trial.

The petitioner testified that in September 1986, before the parties’ temporary reconciliation, she found 22 bundles of cash totalling $22,000 in a box in the basement. She had her son’s mother-in-law, Norine Silvestri, come to the house and take pictures of the bundles. Mrs. Silvestri testified that she took several pictures of the money, which were admitted into evidence. The petitioner further testified that, when the reconciliation was being discussed, she questioned the respondent about the cash, and he indicated that the money was his and that he intended to move it. He put the money in a can, and two days later the can was gone. The respondent subsequently told the petitioner that he had taken the money.

The respondent testified that the petitioner at one time asked him about $22,000 in cash that she found in the house. However, he denied any knowledge or ownership of the money and denied ever seeing or taking the money from the home.

The petitioner filed a pretrial memorandum in accordance with the circuit court rules and, following trial, filed a written closing statement pursuant to the court’s instruction to both parties. The respondent did not file either a pretrial memorandum or a closing statement. In the judgment order, the judge made particular note of the fact that the respondent had not filed a pretrial memorandum or a closing statement. What has been called a “closing statement” by the judge and the parties, we interpret to mean a written closing argument.

The judge’s memorandum order made findings of fact and conclusions of law in classifying and distributing the property. He held that the petitioner, by “clear and convincing evidence,” had overcome the presumption that she intended to make a gift to her husband of a one-half interest in the marital home and classified the home as nonmarital property belonging to the petitioner. The respondent contends that the judge erred in classifying the marital residence as nonmarital property of the petitioner.

The respondent does not contest that before the transfer of title to him the property was the nonmarital property of the petitioner. Rather, he says, when “a spouse owning separate nonmarital property performs the affirmative act of *** transferring title into a form of joint ownership *** such act creates the ‘rebuttable presumption’ of that party’s intention to change the character of the property to marital.” (In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 572-73, 440 N.E.2d 1028, 1030.) This presumption of transmutation may be rebutted by clear and convincing evidence that no gift to the marital estate was intended. In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125; Bruin v. Bruin (1966), 72 Ill. App. 2d 51, 219 N.E.2d 68.

The trial judge found that the respondent relied solely on the presumption of transmutation to establish that the house became marital property, and that the petitioner established by clear and convincing evidence that the conveyance was for convenience and necessity in order to obtain $18,000 with which to settle the petitioner’s brother’s claim on the property. We must express disagreement with this finding of the trial judge. The petitioner testified that her husband’s name was put on the title when they both refinanced the existing mortgage; the funds from the new mortgage were used to pay off the old mortgage and to pay her brother $18,000. She did not testify that her husband’s name was put on the title in order to settle her brother’s claim. We find it most significant that she was never asked any questions about her intent at the time her husband’s name was put on the title. We do not believe that the petitioner’s evidence was clear and convincing to rebut the presumption that she intended to make a gift, and, most important, the petitioner is wrong when she states that the respondent “paid no consideration when his name was placed on the title.” The respondent provided consideration when he executed the mortgage note obligating himself to repay the money.

The petitioner relies on In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316, and In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 499 N.E.2d 1042. Both cases are factually inapposite. In Benz, the wife testified specifically that it was never her intent to make a gift. She also established that she had resisted transferring the property held in her name to a joint trust with her husband for a period of time, that her husband kept “pestering” her to place the property in a marital trust and that she finally agreed in order to keep peace in the family because her husband had become increasingly verbally abusive. In Leff the husband, who was a doctor, testified that he put property in his wife’s name only to protect himself from a possible malpractice suit. He expressly said that he did not intend the property to be a gift.

We repeat that in this case the petitioner significantly was not asked any questions about her reason for putting her husband’s name on the title. The petitioner testified that part of the funds raised through the refinancing were used to settle her brother’s asserted interest in the property, but no evidence was offered to show that the petitioner could not obtain the additional funds without adding the respondent’s name to the record title on the property. Moreover, strengthening the presumption of a gift, the testimony of both parties indicated that they paid the monthly payments on both the original and the refinanced mortgages from marital funds, and their separately filed tax returns showed that they each claimed one-half of the mortgage interest and real estate taxes as deductions in 1986 and 1987. Most important, however, we repeat, the respondent assumed an obligation under the new mortgage. For these reasons, we judge that the trial judge abused his discretion in concluding that the petitioner had overcome the presumption of a transmutation of the interest in the house by clear and convincing evidence. The marital residence should have been classified as marital property.

The respondent next argues that the judge abused his discretion by failing to consider the petitioner’s dissipation of assets in dividing the marital property. We agree with the petitioner’s argument that the respondent waived his claim of any alleged dissipation of marital assets by the petitioner. The trial judge made express reference to the fact that no claim of dissipation had been made by either party.

The respondent’s argument centers on the five separate accounts totalling $11,350 about which the petitioner testified. In the pretrial memorandum filed by the petitioner she claimed that all of the funds in the accounts were her property alone. At no time did the respondent suggest to the court that the petitioner used the funds for a nonmarital purpose or otherwise raise the issue of dissipation. The respondent failed to file a required pretrial memorandum (see Cook County Cir. Ct. R. 13.4(h)(iv)), despite the judge’s specific instruction that he do so. Such a memorandum would have put the court and the petitioner on notice that the respondent intended to charge dissipation or, at least, to claim that he was entitled to one-half of the funds in the accounts. To illustrate, the petitioner did file a pretrial memorandum that listed $22,000, which the husband had removed from the house, as a marital asset; she thus put the court and the respondent on notice that she was claiming half of that property. We conclude that the respondent’s failure to file a pretrial memorandum claiming an interest in the accounts and his failure to argue the matter constitute a waiver. For these reasons, we must reject the respondent’s claim that the judge erred.

The judge ordered that the respondent be reimbursed the sum of $18,400 representing “special contributions” he had made to the house. It is at least highly probable that such an order would not have been made if the judge had held that the residence was marital property. Our holding that the residence is to be properly classified as marital property requires that we vacate that part of the order that the respondent be reimbursed for special contributions and that the case be remanded to the trial court for further proceedings.

In sum, that part of the judgment holding that the residence was nonmarital property of the petitioner is reversed; that part of the judgment ordering reimbursement to the respondent of $18,400 is vacated. In all other respects the judgment is affirmed. This cause is remanded to the trial court for any further necessary proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, vacated in part and remanded.

LaPORTA, P.J., and McNAMARA, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN JASTRZEMSKI, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3103
    Opinion filed April 17, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Martin Jastrzemski was convicted of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1) and sentenced to 30 months’ probation. He now appeals, raising as issues (1) whether the gun found under the hood of his car was “on or about his person,” as required under the statute; and (2) whether his out-of-court statement that the car belonged to him was properly admitted at trial despite the State’s failure to disclose the statement during pretrial discovery. We affirm.

On June 9, 1988, police officer Roy Hupke pulled over a car with a broken brake light. Defendant had been driving the car, and one person was seated next to him in the passenger’s seat. A check of defendant’s driver’s license revealed.that defendant was driving on a suspended license. Hupke then arrested defendant and placed him in the back of the squad car. Hupke searched the car and found a bottle containing codeine capsules on the passenger-side floorboard of the front seat. Hupke then searched the engine compartment and found a loaded revolver wrapped in a shirt and scarf and placed between the battery and the passenger-side fender. While transporting defendant to the police station, Hupke asked defendant whether the car belonged to him, and defendant answered that it did.

At trial, it was stipulated that defendant had previously pleaded guilty to the felony offense of theft and that judgment was entered on that plea. The trial court found defendant guilty of unlawful use of a weapon by a felon and sentenced him to 30 months’ probation.

I

Defendant maintains first that because the gun was found in the engine compartment of the car it was not “on or about his person” as required under section 24 — 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1). He relies principally on People v. Cook (1977), 46 Ill. App. 3d 511, 361 N.E.2d 81, for the proposition that a gun under the hood of a car is not “immediately accessible.” A gun that is not “immediately accessible,” defendant argues, is also not “on or about [defendant’s] person.”

Although we have found no cases directly on point, we reject defendant’s argument generally, and his reliance on People v. Cook, in particular. In People v. Cook, a gun was found underneath the hood of the defendant’s car and the defendant was subsequently convicted of unlawful use of a weapon by a felon. The appellate court reversed the conviction, reasoning that the gun was not “on or about [the defendant’s] person” because it was not “immediately accessible.” (Cook, 46 Ill. App. 3d at 513.) Because the court relied on cases construing section 24 — 2(b)(4) (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 2(b)(4)), which excludes weapons “not immediately accessible” from the scope of sections 24 — 1(a)(4) and 24 — 1(a)(10) and is not at issue in this case, we decline to follow the court’s rationale.

In particular, we do not believe that a weapon must be “immediately accessible” within the meaning of section 24 — 2(b)(4) to sustain a conviction under section 24 — 1.1. Instead, we believe that a weapon is “on or about [the defendant’s] person” for purposes of section 24 — 1.1, where it was found underneath the hood of a car driven by the defendant and, as in this ease, there is also evidence that defendant owned the car and knew where the gun was hidden. This conclusion is supported by People v. Clodfelder (1988), 172 Ill. App. 3d 1030, 527 N.E.2d 632. In that case, a rifle was found near the back of a station wagon driven by the defendant. As in this case, the defendant was convicted under section 24 — 1.1. The defendant admitted that he owned the station wagon and knew where the rifle had been placed. On appeal, the defendant argued that the rifle was not “on or about his person” because he would have had to lean over his seat to reach the weapon. The court disagreed, specifically rejecting any contention that a weapon is not “on or about [the defendant’s] person,” merely because the defendant could not reach the weapon without changing positions. (People v. Clodfelder, 172 Ill. App. 3d at 1033.) The court stated: “Here, defendant was *** the owner of the gun. He knew where it was placed. We hold the evidence to be sufficient to support a determination [that] he constructively possessed the gun ‘about his person.’ ” People v. Clodfelder, 172 Ill. App. 3d at 1034. See also People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936 (recovery of a gun from the defendant’s car rather than his person did not exclude him from the scope of section 24 — 1.1).

We do not believe this case is distinguishable from People v. Clodfelder on the ground that the gun was hidden under the hood near the front of the car. Although defendant would have had to stop the car and open the hood to get the gun, plainly the defendant in People v. Clodfelder would also have had to stop driving and either exit the car or climb over the seat to retrieve his rifle. Moreover, as in People v. Clodfelder, there was evidence that defendant owned the car and knew where the gun was hidden. Finally, the result we reach in this case is plainly consistent with the legislature’s intent in enacting section 24 — 1.1, namely, to protect public safety by prohibiting possession of weapons by felons. See People v. Rangel, 163 Ill. App. 3d at 738-39.

II

Defendant maintains next that he is entitled to a new trial because his out-of-court statement that he owned the car was admitted into evidence even though the State failed to comply with Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)). We disagree.

Rule 412(a)(ii) requires the State, upon written motion of defense counsel, to disclose any written or recorded statements and the substance of any oral statements made by the defendant. The rule’s purpose is to protect the defendant against surprise, unfairness, and inadequate preparation (People v. Carter (1988), 174 Ill. App. 3d 369, 529 N.E.2d 349) and to give the defense the opportunity to investigate the circumstances surrounding the statement. (People v. Winfield (1983), 113 Ill. App. 3d 818, 836, 447 N.E.2d 1029.) Where there is no showing of surprise or prejudice, the trial court has discretion in allowing introduction of evidence not disclosed. (People v. Ferguson (1981), 102 Ill. App. 3d 702, 713, 429 N.E.2d 1321.) If a statement not disclosed is introduced and the defendant fails to request a continuance to investigate the statement and instead proceeds with trial, he has waived the issue for purposes of review. People v. Ferguson, 102 Ill. App. 3d at 713.

In this case, the record shows that defendant requested disclosure of oral statements and that the State at most gave defendant access to its files. At trial, the State introduced defendant’s out-of-court statement that he owned the car and defendant objected to this evidence on the ground that the State failed to comply with his discovery requests. Defendant never requested a continuance to investigate the statement, however, and did not even attempt to impeach Hupke regarding the statement. Because defendant proceeded with the trial without requesting a continuance or otherwise developing the record, we conclude that he has waived this issue for purposes of review.

We also conclude that there is an inadequate record upon which to decide this issue under the plain error rule. (107 Ill. 2d R. 615(a).) All we can conclude from the record is that defendant’s inculpatory admission might not have been disclosed, and that if defendant had seen Hupke’s report, he did not find it useful for impeachment purposes. We certainly cannot conclude that defendant did not own the car and, indeed, that is not defendant’s position on this appeal. Also, it is entirely unclear whether the State sufficiently complied with Rule 412 by providing defendant with Hupke’s police report or other document containing the admission. Finally, although we would be less inclined to agree with the trial court that the gun was “on or about [the defendant’s] person” absent proof that defendant owned the car, even if his admission had not been allowed into evidence, there was other evidence adduced at trial that defendant was in exclusive control of the car. Thus, even if we were to reach the merits of this issue, we do not believe defendant was sufficiently prejudiced to warrant a new trial.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE RIZZI

text:
    JAMES D. THOMAS, Plaintiff-Appellant, v. KENNETH DAVENPORT et al., Defendants-Appellees (John Brna, Defendant).
    First District (3rd Division)
    No. 1—88—1586
    Opinion filed April 18, 1990.

      Sandman & Levy, of Chicago (Morris A. Levy, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (E. Michael Kelly, Stephen R. Swofford, and Nancy G. Lischer, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, James Thomas (Thomas), appeals from an order of the circuit court of Cook County which dismissed with prejudice his medical malpractice action for failure to comply with the notice requirements of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). On appeal, Thomas argues that (1) the statutory time period for serving a notice of injury upon a public entity should be tolled until the plaintiff knows or reasonably should have known of his injury and that it was wrongfully caused; (2) the trial court erred in denying Thomas leave to amend his complaint; and (3) the defendant’s motion to dismiss was legally insufficient to justify dismissal of the complaint. We reverse and remand.

On July 29, 1984, Thomas was injured in a car accident and treated at a hospital in Michigan City, Indiana. On August 4, 1984, Thomas was admitted to Cook County Hospital, where he remained hospitalized until August 27, 1984. On August 9, Doctors John Brna, Kenneth Davenport and David Watt performed surgery on Thomas’ right leg. After surgery, Thomas’ right leg was placed in a full cast, which covered his leg from hip to foot and prevented him from seeing his foot and leg. After Thomas was discharged from the hospital, he noticed that his toes pointed outward at an angle. When Thomas asked Dr. Davenport or Dr. Watt during an out-patient visit why his toes were pointing out, he was told that his leg would be alright when the cast was removed.

At a subsequent outpatient visit sometime between, August 27, 1984, and January of 1985, the defendants changed Thomas’ cast. During this visit Thomas noticed that his right leg was also pointing out at an angle. Doctors Davenport or West informed Thomas that with proper exercise, his foot and leg would resume their normal shape after the cast was removed. In February 1985, when plaintiff’s cast was removed his leg had not resumed its normal alignment. At that time, Thomas first suspected that his injury was the result of medical malpractice.

On August 12, 1985, six months after this discovery, Thomas filed a notice of claim for personal injuries with the Cook County board. On August 13, Thomas filed his complaint in this action. In his complaint, Thomas alleged that he did not know or have reason to know that his condition was a result of wrongful acts or omissions of the defendants until approximately February 1985.

Defendants, Doctors Davenport and Watt and Cook County Hospital, moved to dismiss Thomas’ complaint on the basis that he failed to comply with the statutory notice requirements of the Tort Immunity Act. At the hearing on the motion to dismiss, defendants argued that the one-year statutory notice period could not be extended. Plaintiff argued that the injury was not discovered until 1985 and that the period of time for filing of the notice should be extended. The court granted defendants’ motion to dismiss on the basis that, due to the indefinite listing of the specific date on which the injury occurred, it was impossible to ascertain whether or not notice was given within the required time period. Thomas requested, but was denied, leave to amend his complaint to state a more definite date. This appeal followed.

On appeal, Thomas first argues that the statutory time period for serving notice of injury upon a public entity should be tolled until such time as plaintiff knows or reasonably should know of his injury and that it was wrongfully caused. We agree.

Section 8 — 102 of the Tort Immunity Act provides in pertinent part:

“Within 1 year from the date that the injury or cause of action *** was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve *** a written notice on the Secretary or clerk *** for the entity against whom or against whose employee the action is contemplated a written statement *** giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.” (Ill. Rev. Stat. 1985, ch. 85, par. 8— 102. (Repealed by Pub. Act 84 — 1431, art. 1, §3, eff. November 25, 1986.))

Section 8 — 103 of the Tort Immunity Act provides that if notice is not served on the local public entity within one year of the date of the accident as required by section 8 — 102, the plaintiffs cause of action is barred. Ill. Rev. Stat. 1985, ch. 85, par. 8 — 103.

In Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421, the supreme court held that the discovery rule applies to medical malpractice suits involving local governments and their employees. Thus, subject to the overall four-year statute of limitations, the one-year time period for giving notice under section 8 — 102 commences from the time a plaintiff knows or reasonably should know of his injury and that it was wrongfully caused. Rio, 104 Ill. 2d at 365.

When ruling on a motion to dismiss, the court must take all well-pleaded allegations as true. Thus, Thomas’ allegation that he discovered his injury in February 1985 and computed the notice requirement deadline from that date must be taken as true. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 404, 440 N.E.2d 942, 945.) The original date of Thomas’ admission to Cook County Hospital cannot be used as a measure since he relied on his doctors’ repeated assurances that his leg and foot would resume their normal alignment after the cast was removed. The Illinois General Assembly included the discovery rule in the limitations statute to avoid unfair results in medical malpractice and other tort cases where the then-existing statute of limitations sometimes barred a cause of action before a plaintiff could know that it existed. (Rio, 104 Ill. 2d at 363.) The present case is the type of situation that the rule was designed to prevent. We therefore conclude that the discovery rule should apply in construing the notice provisions of the Tort Immunity Act in this case. We further find that Thomas’ notice of claim, filed six months after he discovered his injury, was timely.

Thomas further argues that the trial court should have granted his motion to amend his complaint to specify the date on which his injury was discovered so that the notice time period could be accurately computed. We agree.

The decision to allow amended pleadings is a matter within the sound discretion of the trial court, and its ruling on a motion to amend will not be disturbed absent an abuse of discretion. (Chesterfield Sewer & Water, Inc. v. Citizens Insurance Co. (1965), 57 Ill. App. 2d 90, 97-98, 207 N.E.2d 84, 88.) The power to allow amendments should be freely exercised so that litigants may freely present their causes of action; the most important question is whether amendment will be in furtherance of justice, and amendment of defective pleadings should be permitted unless it is clear that the defect cannot be cured thereby. (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1106, 428 N.E.2d 1061, 1067.) While recognizing that an amendment should not ordinarily be permitted to set up matters which the pleader had full knowledge of at the time of filing the original pleading where no excuse is presented for not putting its substance in the original pleading, such amendment will be allowed where justice is not served by denying leave to amend; doubts should be resolved in favor of allowing amendments. Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625.

In the present case, we find that the trial court should have allowed Thomas’ motion to amend his complaint to reflect the specific date in February 1985 on which he discovered his injury. Allowing Thomas to amend his complaint to state a more definite date would have cured the defect and allowed him to freely present his cause of action. Under these circumstances, justice would best be served by allowing the amendment.

Thomas finally argues that the defendant’s motion to dismiss was legally insufficient to justify dismissal of the complaint. Because of our resolution of the previous issues, we decline to address this issue.

Accordingly, the order of the circuit court is reversed, and this matter is remanded for proceedings consistent with this opinion.

Reversed and remanded.

FREEMAN and WHITE, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN CRUZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2053
    Opinion filed April 18, 1990.

      Nidal Z. Zayed & Associates, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Patrick J. Finley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Allen Cruz, was found guilty following a jury trial of committing the offenses of attempted murder, aggravated battery, armed violence predicated on aggravated battery, and aggravated battery while using a deadly weapon, in connection with the shooting of Marisol Gonzales. Judgment was entered on the verdict for attempted murder, and the defendant was sentenced to serve 10 years’ imprisonment in the Illinois Department of Corrections. On appeal, the defendant contends: (1) there were numerous errors which deprived him of a fair trial and which should be noticed by this court under the plain error rule; (2) he was improperly convicted of multiple offenses for the same act; (3) his sentence is excessive; (4) the trial court erroneously instructed the jury on all four counts because the jury was misled into believing there were four separate crimes committed; (5) he was not proved guilty beyond a reasonable doubt because there was insufficient evidence for proper identification; and (6) he was not proved guilty beyond a reasonable doubt of attempt (murder) because there was insufficient evidence to establish intent.

On the evening of Friday, December 5, 1986, 16-year-old Marisol Gonzales and her niece, 14-year-old Melissa Echevarria, went to a disco at Maple Lanes Bowling in Chicago. There they met a friend of Marisol’s, 20-year-old Israel Hernandez, and someone named Carlos. They danced and consumed some alcoholic beverages until the early morning hours of December 6, at which time Hernandez agreed to drive the girls home. After they left, the girls requested that they stop somewhere so they could use a rest room. Hernandez decided to take them to his father’s tavern located at North Avenue and Monticello so that they could use the facilities there. Once inside, Carlos decided to leave the group and departed. Marisol entered the ladies room first, and Hernandez returned to his car to wait for the girls. Marisol then left and told Melissa she would wait for her in Israel’s car. After Marisol entered Hernandez’ car, Hernandez noticed a Buick LaSabre slowly approach and pull up along side his car. The testimony reveals that Hernandez’ vehicle was parked on Monticello, which is a one-way street going north. The Buick pulled up along side the passenger side, indicating that Hernandez had parked on the west side of Monticello and was seated closest to the curb. The windows on the Buick were tinted, concealing the occupants until a window was rolled down. Someone leaned out the window, smiled, and then pointed a handgun at Hernandez and Gonzales. Israel alerted Marisol and pushed her down on the seat, lying on top of her as a shield. Six shots were fired into the car, and then the Buick disappeared. Marisol received one bullet in her side.

Later that day, Hernandez flagged down an unmarked police car while walking west on North Avenue and spoke to Officer Guevara. Hernandez asked Guevara if they had captured the person who shot Gonzales. Officer Guevara advised Hernandez that he was unfamiliar with the investigation but drove Hernandez to the station after Hernandez stated that he thought the gunman was a member of a street gang called the “People” and that he could identify the gunman if he examined the police photographs. Hernandez subsequently identified the defendant, Allen Cruz, upon seeing his photograph in a book containing members of the “People” street gang.

The defendant first argues that his conviction must be reversed because there were numerous errors committed at trial. Conceding that these errors have been waived due to the the trial counsel’s failure to object at trial or raise them in his post-trial motion, he urges the court to apply the plain error rule. A defendant must make a timely objection at trial and again raise the issue in a post-trial motion in order to preserve the issue for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) A failure to comply with either requirement waives review of the issue. (People v. Jackson (1981), 84 Ill. 2d 350, 358, 418 N.E.2d 739.) The waiver rule is not absolute, however, as Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)) permits a court to take notice of errors not properly preserved for review where substantial rights are affected. The plain error rule may be invoked when the evidence is closely balanced or the error is of such magnitude that the defendant is denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.) The rule does not, however, require a court to consider all errors involving substantial rights whether or not they have been brought to the trial court’s attention. (Jackson, 84 Ill. 2d at 359.) The claimed errors include references to gang affiliation and a photograph of the defendant in a police mug book, remarks made during the prosecution’s opening statement and closing argument, and an unsolicited remark made by the State’s identification witness pertaining to past bad acts of the defendant. We have read the record and do not consider the evidence to be closely balanced. Nor do we regard the alleged errors to be of such magnitude that the defendant was denied a fair trial. Thus, the points raised by the defendant are waived.

Our refusal to apply the plain error rule is also due in part to the defendant’s failure to cite any authority in contending that he has been denied a fair trial. The defendant’s brief contains only excerpts from the transcript and bare assertions. Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)), which is made applicable to criminal appeals pursuant to Supreme Court Rule 612 (107 Ill. 2d. R. 612), requires that arguments in support of issues raised on appeal contain the contentions and the reasons in support thereof with citations to authorities. Points raised but not properly briefed are waived. (People v. Adams (1969), 109 Ill. App. 2d 385, 388, 248 N.E.2d 748.) As one court explained,

“If the case is not properly presented and the court is not given the benefit of precedents there is a danger of a decision being rendered that will not be in harmony with the weight of authority. It is the duty of attorneys practicing in this court to present to the court the authorities supporting their views and to assist the court in reaching a correct conclusion.
* * *
Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research as it were, upon the court.” People v. Ortiz (1980), 91 Ill. App. 3d 466, 475, 414 N.E.2d 1072.

The defendant next contends that he was improperly convicted of multiple offenses for the same act. He urges this court to vacate his conviction for attempted murder, contending it is a less serious offense than armed violence. He further requests this court to vacate his convictions for the two counts of aggravated battery. Where the same physical act constitutes more than one offense, it is proper to enter judgment and sentence only on the most serious of the offenses. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. King (1977), 66 Ill. 2d 546, 363 N.E.2d 938.) The defendant, however, was only convicted of one offense, as judgments were never entered on the guilty verdicts for armed violence and the two counts of aggravated battery. The record clearly shows that Cruz was convicted only of attempted murder. In the absence of a judgment formerly entered or sentence imposed, there is no “conviction.” (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 5.) A jury verdict does not equal a judgment of conviction. (People v. Lashmett (1984), 126 Ill. App. 3d 340, 345, 467 N.E.2d 356.) Thus, insofar as the rule against multiple convictions is concerned, the trial judge was in compliance with King. There is no need to reach the question of which is the more serious offense.

The defendant argues next that his sentence is excessive, and he asks that it be reduced. The offense of attempted murder is a Class X felony carrying a sentence from 6 to 30 years imprisonment. (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 1005 — 8—1(3).) The trial judge sentenced the defendant to 10 years in the Department of Corrections. Reviewing courts have the authority to reduce sentences under Rule 615(b)(4). (107 Ill. 2d R. 615(b)(4).) A reviewing court cannot, however, reduce a sentence unless there has been an abuse of discretion by the trial judge. (People v. La Pointe (1982), 88 Ill. 2d 482, 492, 431 N.E.2d 344.) The trial judge’s decision regarding sentencing is entitled to great deference and weight (La Pointe, 88 Ill. 2d at 492-93), and the reviewing court cannot substitute its own judgment merely because it would have balanced the appropriate factors differently. (People v. James (1987), 118 Ill. 2d 214, 228, 514 N.E.2d 998.) The sentencing hearing revealed a criminal record consisting of convictions for possession of stolen automobiles, unlawful use of a weapon, criminal damage to property, and possession of cannabis. The defendant asserts that the trial judge did not give adequate consideration to the defendant’s rehabilitative potential. The defendant’s last prior conviction was in 1985, and the testimony shows he had been employed at his father’s tire shop for four years, earning $100 a week. We find no abuse of discretion.

The defendant next contends that it was erroneous to instruct the jury on all four counts because the instructions on the multiple offenses misled the jury into believing the defendant was charged with four separate crimes. In support of this proposition, the defendant cites People v. Tyllas (1981), 96 Ill. App. 3d 1, 420 N.E.2d 625. In Tyllas, the court was presented the same issue but refused to address it on the ground that even if the contention were valid, it was harmless error. (Tyllas, 96 Ill. App. 3d at 6.) The defendant recognizes that Tyllas did not address the issue, but cites the decision in an apparent effort to demonstrate that his contention has merit as he had no other authority for this proposition. He concedes that the issue is waived as it was not raised in his post-trial motion, but urges the court to consider the issue under the plain'error rule. We do not believe the plain error rule is warranted here, and, in any event, the defendant’s argument is without merit. See People v. Harris (1986), 146 Ill. App. 3d 632, 637, 497 N.E.2d 177.

Next, the defendant argues that he was not proved guilty beyond a reasonable doubt because the identification evidence was insufficient. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) When a defendant challenges the sufficiency of the evidence, a reviewing court must view the evidence in the light most favorable to the prosecution and then determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Collins, 106 Ill. 2d at 261.

The law is clear that a single witness’ identification of an accused is sufficient to sustain a conviction provided that the witness had an adequate opportunity to observe the accused and the witness is credible. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) In evaluating identification testimony, the following factors are considered: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. (Slim, 127 Ill. 2d at 307-08.) An identification need not be based on perfect conditions or on a prolonged period of time for observation for the identification to be valid. People v. Crawford (1980), 90 Ill. App. 3d 888, 891, 414 N.E.2d 25.

Hernandez testified that the gunman was seated in the passenger side of the Buick and that the driver, whose face he could not see, had leaned back in order to make room for the gunman. Thus, according to Hernandez, the criminal fired the weapon through the driver’s window while seated in the passenger seat. Hernandez stated that the gunman leaned over and pointed a big chrome gun out the window when he fired. Hernandez admitted on cross-examination that he was able to view the gunman for only a few seconds before taking evasive action to protect himself and Marisol. Hernandez further testified, however, that the area was illuminated by a street lamp a couple feet away on his side of Monticello and by a lighted store sign across the street. Hernandez also testified that the Buick was only four feet away when the vehicle pulled up next to his car.

Despite the fact that the Buick’s appearance was sudden, Hernandez’ level of attention must have been high, as his description of the shooting was detailed and he was able to take quick evasive action.

As to the third factor, there is not much evidence to assist the court as Hernandez never gave a prior physical description of the gunman with which this court can compare to Cruz. Hernandez testified that he had been walking west on North Avenue to a friend’s home in order to obtain a ride to the police station when he spotted Officer Guevara in an unmarked squad car. The defendant asserts that Hernandez’ identification lacks credibility because Hernandez stated he gave a description of the criminal to Guevara while Guevara testified that he was not provided with a description. A reasonable explanation for this discrepancy could be that what Hernandez meant by giving a description was his statement that he could identify the gunman who he believed to be a member of the “People.” Hernandez never testified that he provided Guevara with any physical characteristics of the criminal. Officer Guevara never asked Hernandez to describe the offender, and Hernandez never offered a description except that he thought the assailant was a member of the “People” and that he could identify him. Generally, discrepancies and omissions as to physical characteristics are not fatal and affect only the weight to be given to identification testimony. (Slim, 127 Ill. 2d at 308.) Therefore, it follows that the failure to provide any description, at least when one is not solicited, should affect only the weight of the evidence.

Hernandez displayed a reasonable degree of certainty that his identification of the accused was correct. He examined three books of photographs before pointing out Cruz as the criminal. He subsequently identified Cruz during a lineup, and he never displayed uncertainty.

The length of time between the crime and the first identification confrontation was short, as Hernandez identified Cruz from the police photographs less than a day following the incident. He then identified Cruz in a lineup the following day.

Hernandez’ credibility is questionable since, as a rival gang member, Hernandez could have been biased or even motivated to lie. Hernandez’ credibility is also questionable because he first testified that he had never seen the gunman before the shooting, and then later contradicted himself when he testified that he had seen Cruz drive around the neighborhood with other gang members looking for trouble. Such infirmities, however, go to the weight of the identification evidence. (Collins, 106 Ill. 2d at 261-62; People v. Dean (1987), 156 Ill. App. 3d 344, 352, 509 N.E.2d 618.) After considering the foregoing factors, we conclude that a rational trier of fact could have found Cruz guilty beyond a reasonable doubt.

The defendant next contends, assuming arguendo that he was the assailant, that the State failed to prove beyond a reasonable doubt that he intended to commit murder. Specific intent to kill must be established beyond a reasonable doubt in order to convict for attempted murder. (People v. Anderson (1982), 108 Ill. App. 3d 563, 566, 439 N.E.2d 65.) Such intent can be inferred from the surrounding circumstances including the character of the assault and the use of a deadly weapon. (Anderson, 108 Ill. App. 3d at 566.) The defendant, relying upon People v. Trinkle (1976), 40 Ill. App. 3d 730, 353 N.E.2d 18, argues that it cannot be inferred that the shooter intended anything more than damage to Hernandez’ vehicle. In Trinkle, the defendant, who was angry for being refused service by a bartender, fired a shot at the building. The bullet penetrated the door and wounded a patron. The court reduced the defendant’s conviction for attempted murder to aggravated battery because the court found there was, inter alia, reasonable doubt that the defendant intended to kill, as the defendant was unaware that the patron had been standing behind the door and because the defendant’s- actions were directed, not against any person, but against a building. The defendant maintains that intent to kill cannot be inferred because when Hernandez and Gonzales first noticed the gun pointed at them, they were in clear view of the gunman and, yet, the gunman did not fire. The defendant asserts that had the assailant intended to kill, at least one of the six bullets fired would have struck the passenger window. Therefore, the defendant argues that the assailant intended only to inflict damage upon Hernandez’ vehicle. The defendant further asserts that it is unreasonable to infer that the shooter knew that a bullet could penetrate the car door or that the bullet could retain the requisite velocity necessary to kill a victim after passing through a car door. The State responds that the defendant’s argument fails to take into account that at the time the weapon was discharged into the passenger door, Hernandez and Gonzales were hidden below the window.

We agree with the State. A rational trier of fact could infer that the assailant aimed his weapon at the car door because Hernandez and Marisol were lying down in the car, hidden from view. Further, there is no evidence that the gunman made a conscious choice not to fire when Israel and Marisol were still in clear view. It is equally plausible that the assailant merely hesitated or did not have enough time to take aim before Hernandez pushed Marisol down onto the seat. The court also disagrees with the defendant’s assertion that it is unreasonable to infer that the gunman knew a bullet could penetrate a car door and kill a victim. Accordingly, the court finds that a rational trier of fact could have found the requisite intent beyond a reasonable doubt.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN and RIZZI, JJ., concur.


text:
    JAMES PAPAS, d/b/a Papas Trucking and Towing, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3561
    Opinion filed April 18, 1990.
    Judson H. Miner, Corporation Counsel, of Chicago (Kelly R. Welsch, Assistant Corporation Counsel, of counsel), for appellant.
    Peter N. Kamberos and Maria Pappas, both of Kamberos & Pappas, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, City of Chicago, appeals from the judgment entered in favor of plaintiff, James Papas, d/b/a Papas Trucking and Towing, after a bench trial of his breach of contract action. Defendant argues that plaintiff failed to prove that he had a contract under defendant’s “machinery rental program” for the rental of trucks at a rate of $48 an hour because plaintiff was hired under a separate “hired truck program” which used rates established by a tariff bureau. Defendant also argues that it could not be estopped from denying the existence of a contract under this program.

Plaintiff filed a complaint against defendant which alleged in count I that in June 1980, defendant advertised for bids on a contract for work; that plaintiff entered into a written agreement with defendant’s department of purchases on August 8, 1980; that defendant failed to compensate plaintiff at the rate of $48 an hour for each eight-hour day for the rental of a tractor and trailer rig as scheduled in their contract; and that defendant instead compensated plaintiff at a rate of $27 an hour. Plaintiff alleged in count II that in June 1981, defendant advertised for bids on a contract for work; that plaintiff entered into a written agreement on June 17, 1981; and that defendant again failed to compensate plaintiff for the agreed $48-an-hour rate.

Defendant alleged in an affirmative defense that plaintiff was hired under the hired truck program, which paid $27 an hour for truck rentals from February 1981 through August 1981 and $32.50 an hour from September 1981 to April 1983.

Plaintiff testified at trial that he submitted a bid in May 1980 to defendant’s purchasing department of $20 an hour for trailers and $28 an hour for tractors with drivers for a total of $48 an hour. He submitted bids for an-eight-hour shift for a transport trailer and for a tractor. The other terms of the bid were that plaintiff paid for fuel, insurance, depreciation and the driver. After he submitted his bid, he received a letter and a contract. Plaintiff no longer had a copy of that letter in his possession, but a letter he received dated July 1, 1981, from defendant’s department of purchases, contracts and supplies was similar to the 1980 letter and stated in part:

“Under separate cover we are sending you our short form agreement No. CN 1808 covering the rental of construction equipment on which you quoted June 9, 1981.
The various departments and agencies will contact you direct [sic] as and when they have need for your equipment on a rental basis.
Payment will be made at the rates set forth on your proposal of June 9,1981, which represents the prices you quoted.
Each department will issue a sub-order (Form CF-GS-3) direct [sic] to you showing all details of any equipment they may be renting from you. From this sub-order you may then prepare an invoice in triplicate (on City Form No. CP-45) and forward direct [sic] to the Using Department for auditing and certification. ***
Nothing herein is to be construed as an obligation on the part of the City to hire any equipment whatsoever, and nothing is to be construed as an obligation on the part of the Contraetor to furnish any equipment when and if called.” (Emphasis added.)

The agreement dated August 8,1980, from defendant stated in part:

“Construction equipment as required on rental basis of when, as, and if needed during the period of July 1, 1980 to June 30, 1981 in accordance with your quotation on file in the office of the Purchasing Agent, dated 6/9/80 full maintenance and insurance for equipment rented with or without operator.
* * *
The City reserves the right to cancel this contract upon notification, by a 30 day notice.” (Emphasis added.)

Plaintiff further testified that he received a telephone call from the department of streets and sanitation to report to work on approximately February 12, 1981, and that he dispatched two trucks. After each day of work, plaintiff completed a form entitled “hired equipment daily activity report,” which stated the times and locations worked. These forms were used by plaintiff to prepare an invoice at the end of the month. At the end of February 1981, plaintiff submitted a bill to defendant but he did not receive payment as expected the next month. He contacted the purchasing department at the end of March; James Arnold told plaintiff that he would receive his money but that defendant was late in making payments.

The first time plaintiff received payment was in June for work performed in February through April but he was not paid the amount billed. He received back his invoice dated February 1981 with the rate changed from $48 to $27 and the number of hours changed from 90 to 88 hours. Subsequent invoices were also altered. Plaintiff complained in June to James Arnold and Mr. Buczkowski of the department of purchasing regarding his payment for work performed in May. He was told that defendant did not have any money but that he would be paid. Plaintiff also spoke to Bob Nolan and Leonard Rendak in the controller’s department and was told that he was to be paid the $27 rate. In June he complained to Commissioner Donovan of the department of streets and sanitation about the shortage and was told that he would be paid. He continued to complain to all these departments.

Plaintiff further testified that he submitted a bid in June for the period July 1, 1981, through June 30, 1982, at the same $48 total hourly rate. He received the July 1, 1981, letter and an agreement dated July 17, 1981, from the department of purchases. (The 1981 agreement was almost identical to the 1980 agreement.) Plaintiff continued to work for defendant through 1981 and into 1982.

John Halpin testified for defendant that he was deputy eommissioner of the department of streets and sanitation from October 1981 to September 1985. In the hired truck program, the rates were those set by a tariff bureau, and trucks were hired only when needed.

Leonard Rendak, an auditor in defendant’s comptroller’s office, testified for defendant that from February 1981 through April 1983 he was in the internal audit department and audited the hired truck payroll. Plaintiff was one of the vendors on the hired truck payroll from 1981 to 1982 and possibly 1983. Plaintiff was paid in 1981 and 1982 for dump and semi dump trucks at the tariff rate of $27 an hour, which was increased to $32.50 an hour. Sometimes the rates of pay on plaintiff’s invoices were different from what the payroll indicated. All the truck vendors on the hired truck payroll were paid from the same schedule of rates. Rendak applied the tariff rates to plaintiff’s trucks and reduced the rates noted on plaintiff’s invoices from $48 an hour to the appropriate rates. Plaintiff asked him numerous times in 1981 and 1982 why he was not receiving the higher rate, and Rendak explained that he was getting paid the tariff rate.

Robert Nolan testified for defendant that he had worked for defendant’s controller’s office and that plaintiff complained to him about his rate of pay. Nolan told plaintiff that he was being paid the appropriate rates under the hired truck payroll.

Richard Stark, Jr., testified for defendant that he was an assistant commissioner with defendant’s department of streets and sanitation. From December 1979 through October 1987, he kept track of the trucks and equipment in the hired truck program. The commissioner was responsible for hiring under the program and pursuant to the commissioner’s advice, Stark would sign up a vendor. In either late 1980 or early 1981, he had a meeting with plaintiff and with the commissioner, who asked Stark if there was room for plaintiff’s trucks. Stark added plaintiff to the “hired truck roll.” Stark told plaintiff the rate of pay, and plaintiff never complained to him about the rate of pay.

During 1981 to 1983, Stark was not allowed to hire a vendor from the machinery rental book because the vendors charged different rates for trucks and defendant’s policy was not to pay different rates for the same job. Truckers were not allowed to be paid from the machinery rental book and were hired according to the tariff rates. Rather, heavy machinery such as bulldozers and cranes were hired from the machinery rental book. A trucker who was hired under the rental book would have an individual contract number; a suborder form would not be issued to a vendor that was hired on the hired truck payroll. Plaintiff was never issued a suborder form.

Marian Zintak of defendant’s comptroller’s office testified for defendant that, from February 1981 through April 1983, he worked in the department of purchasing auditing all payments of contract and purchase order type vouchers and processing payments to vendors under the machinery rental program. Plaintiff had a machinery rental contract. A truck vendor on the hired truck payroll would not be issued a suborder form.

Plaintiff testified that he had a conversation with Stark in 1980 or 1981 in the commissioner’s office, but the rate of pay was not mentioned.

The trial court found in favor of plaintiff.

Defendant argues that plaintiff did not establish a valid contract for $48 an hour under the machinery rental program and that defendant could not be estopped from denying the existence of a contract under the program. Defendant argues that plaintiff did not establish that his offer to rent trucks for $48 an hour was accepted by defendant or that defendant made an enforceable promise to plaintiff in return for his bid. Defendant argues that the form plaintiff received was not an acceptance of plaintiff’s bid because by its terms defendant did not agree to rent any equipment from plaintiff; rather, defendant only agreed to rent his equipment “when, as and if needed” from July 1, 1980, to June 30, 1981 (and then in the second letter from July 1, 1981, to June 30, 1982). Defendant argues that a promise which promises nothing is not sufficient to make a contract enforceable. Plaintiff responds that the contract was akin to a requirements contract and that the promise to rent on an as needed basis was not illusory and constituted sufficient consideration.

An illusory promise promises nothing and leaves the alleged promisor’s future action subject to his own future -will. (1 A. Corbin, Contracts §145, at 627-28 (2d ed. 1963).) Although defendant did not promise that it would hire plaintiff’s trucks, defendant promised that if it did hire them during a particular period, it would pay the rate that plaintiff bid. (Cf. Dwyer v. Graham (1983), 99 Ill. 2d 205, 209, 457 N.E.2d 1239 (only tenancy at will created by lease agreement that permitted tenants to lease “as long as desired”).) Defendant’s promise was not illusory.

An acceptance must give in return for the offer exactly the consideration requested. (1 S. Williston, Contracts §73, at 238 (3d ed. 1957).) Plaintiff did not make bids for rental on particular dates but offered rates which it would charge if defendant rented trucks during a particular period. The agreements sent by defendant accepted plaintiff’s bids of rates by ordering construction equipment as needed “in accordance with your quotation on file.” That payroll and auditing forms and procedures were consistent with hiring plaintiff under the hired truck program is irrelevant to the issue whether defendant accepted plaintiffs offer.

Defendant also argues that it was not clear but if the trial court applied estoppel against it, the application was erroneous because estoppel against a public body is disfavored and may be raised only to prevent fraud or injustice. The trial court found that defendant accepted plaintiffs bid and did not find that defendant was estopped from denying that plaintiff had a contract under the machinery rental program. Therefore the issue of estoppel need not be addressed.

The judgment of the trial court is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.