author: JUSTICE HARTMAN

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellant, v. SPECIALTY COATINGS COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—87—3852
    Opinion filed March 7, 1989.
    Rehearing denied March 29, 1989.

      Stephen B. Frew and Cynthia A. Meister, both of Kiesler & Berman, of Chicago, for appellant.
    Kevin M. Forde and Katrina Veerhusen, both of Kevin M. Forde, Ltd., of Chicago, for appellees.
    Don E. Glickman, of Rudnick & Wolfe, of Chicago (Thomas W. Brunner, James M. Johnstone, John W. Cavilia, and Wiley, Rein & Fielding, of Washington, D.C., of counsel), for amicus curiae Insurance Environmental Litigation Association.
    James T. Price, Terry W. Schackmann, and Stephanie A. Mathews, all of Spencer, Fane, Britt & Browne, of Kansas City, Missouri, for amicus curiae Illinois Manufacturers’ Association.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, United States Fidelity and Guaranty Company (USF&G), appeals from circuit court orders denying its motion for judgment on the pleadings against defendants, Specialty Coatings Company (Coatings) and Specialty Chemical Company (Chemical) (sometimes collectively defendants) and granting defendants’ motion for partial summary judgment. The issues raised for review include whether: (1) USF&G is collaterally estopped from relitigating the meaning of certain clauses of its insurance policy sold to defendants; (2) the policy’s pollution exclusion clause bars coverage for defendants; (3) underlying claims amount to damages under the policy language; (4) a “potentially responsible party” (PRP) letter triggers USF&G’s duty to defend; and (5) a toxic waste dump owned by third parties can be construed as “property used” by defendants under the policy. For reasons which follow, we affirm.

On June 8, 1974, USF&G issued to Coatings and on June 8, 1975, issued to Chemical comprehensive general liability insurance (CGL) policies, and both defendants became named insureds on a single CGL policy which was renewed continuously through 1987. Coatings produces industrial coatings; Chemical manufactures sealants and adhesives.

Based upon their CGL policy, defendants tendered to USF&G the defense of three separate legal claims lodged against them, for which USF&G denied coverage, declined to defend and filed an action in 1984, amended in 1985, seeking a declaration that it had no such legal obligations. USF&G moved the circuit court to enter a judgment declaring that the terms of the CGL policy did not obligate it to defend or indemnity defendants for the three separate claims, consisting of the following:

(a) An amended complaint filed September 30, 1983, by the Attorney General of Illinois against defendants and 12 other defendants (People v. Cross), alleging, among other things, that between March 1975 and December 1978, defendants delivered, at their Illinois facility in Elk Grove, to the Cross pail and drum recyclers 55-gallon drums and five-gallon pails of industrial wastes; Cross disposed of the wastes by open dumping at its property in Kankakee County where Cross took the wastes; and a pollution hazard was thereby created, in violation of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. IIIV2, pars. 1012, 1021). The State sought civil penalties and an injunction requiring defendants to: (1) undertake and complete remedial action necessary to eliminate land and water pollution at the site; (2) identify and analyze wastes at the site; (3) refrain from further violations of the act; and (4) post a performance bond.

(b) A PRP letter from the United States Environmental Protection Agency (USEPA), notifying Coatings that it was a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C.A. §§9606(a), 9607(a) (1983)) for the costs of cleaning up the Cross site by virtue of its waste disposal agreement with Cross. Liability under CERCLA may be established irrespective of fault, knowledge or intent. Parties such as Coatings are referred to as “generators.” (See Buckeye Union Insurance Co. v. Liberty Solvents & Chemicals Co. (1984), 17 Ohio App. 3d 127, 130-31, 477 N.E.2d 1227, 1232.) The USEPA filed no complaint against Coatings in this action, but scheduled a meeting to discuss possible settlement of the matter.

(c) A third-party action against defendants and others (Midco action or Midco complaint), wherein third-party plaintiffs, American Can Co. et al., asserted the USEPA’s suit against them for contributing to chemical waste pollution of surface and below-ground water and soil between 1975 and 1979 at two industrial dump sites in Gary, Indiana, designated “Midco I” and “Midco II,” among other allegations. USEPA sought injunctive and other equitable relief against third-party plaintiffs and reimbursement of funds spent for investigative, response and cleanup activities at the site. (42 U.S.C.A. §§6973, 9604, 9606, 9607 (1983).) Third-party plaintiffs thereafter sought contribution for any judgments entered against them, contending defendants, among 90 others, were liable as past or present generators who contributed to or arranged for the “storage, handling, treatment, transportation or disposal” of hazardous wastes at the Midco sites. Again, under the statute, strict liability is imposed without regard to fault, knowledge or intent.

USF&G’s second amended complaint requested the circuit court to enter a judgment declaring that it bore no duty to cover, defend or indemnify defendants for the three claims, because the claims: (1) alleged no “property damage” as defined by the policy; (2) alleged no “occurrence” as defined by the policy; and (3) were barred from coverage by operation of the policy’s “pollution” and “property used” exclusions. Defendants’ answer to the second amended complaint asserted three “first additional defenses” that USF&G failed to state a cause of action as to each claim submitted by defendants for coverage. USF&G’s reply denied each additional defense.

USF&G moved for judgment on the pleadings, to which defendants responded with a motion for partial summary judgment, seeking an adjudication that USF&G had a duty to defend them in the underlying claims. Following a hearing, the circuit court denied USF&G’s motion and granted defendants’ motion as to count I of the second amended complaint and, in a memorandum opinion, found that the People v. Cross claim alleged sufficient facts to establish both “property damage” and an “occurrence” under the policy. The court also concluded that neither the “pollution” nor “property used” exclusion in the policy precluded coverage for the claim submitted by defendants. The circuit court subsequently granted defendants’ motion for partial summary judgment as to counts II and III of the second amended complaint; denied USF&G’s motion for judgment on the pleadings; and found no just reason to delay enforcement or appeal from the orders affecting all three counts. (124 111. 2d R. 304(a).) This appeal followed.

I

As a preliminary matter, defendants contend that previous litigation to which USF&G was a party conclusively decided in defendants’ favor the issues of whether the policy’s pollution exclusion clause bars coverage for the underlying claims and the underlying claims seek recovery for “property damage” as defined in the policy. USF&G is claimed to be collaterally estopped from relitigating those questions here. Defendants’ failure to raise collateral estoppel at the trial level prevents us from now considering this theory. Board of Education of Township High School District No. 211 v. Kusper (1982), 92 Ill. 2d 333, 342-43, 442 N.E.2d 179.

II

No disagreement as to material facts presented by this appeal appears; therefore, we need only determine whether, pursuant to the motions for judgment on the pleadings and for partial summary judgment, either party is entitled to prevail as a matter of law. Katz v. American Family Insurance Co. (1987), 163 Ill. App. 3d 549, 551, 516 N.E.2d 795; Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 927, 427 N.E.2d 317.

An insurer’s duties to defend and to indemnify are not coextensive; the duty to defend is broader and arises when the underlying complaint, compared with relevant policy provisions, alleges facts covered or potentially covered by the contract. (Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp. (1988), 166 Ill. App. 3d 550, 553, 519 N.E.2d 1180; United States Fidelity & Guaranty Co. v. Continental Casualty Co. (1987), 153 Ill. App. 3d 185, 189, 505 N.E.2d 1072.) Only where the complaint allegations clearly exceed policy coverage may an insurer justifiably refuse to defend. (Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp., 166 Ill. App. 3d at 553.) Liability insurance policy ambiguities are to be construed in context with the predominant purpose of the contract, which is to provide coverage to the insured. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378-79, 400 N.E.2d 921; Illinois Central Gulf R.R. v. Continental Casualty Co. (1985), 132 Ill. App. 3d 310, 313, 476 N.E.2d 1266, appeal denied (1985), 108 Ill. 2d 565.) A comprehensive general liability policy is especially susceptible to such a construction because its purchaser presumably believed that it would afford broad coverages. (Dora Township v: Indiana Insurance Co., 78 Ill. 2d at 379.) Interpretation in the insured’s favor is particularly appropriate if the ambiguity arises in an exclusion, since the insurer there attempts to limit the insured’s coverage. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 371, 522 N.E.2d 758.

USF&G initially insists that its CGL policy’s pollution exclusion bars recovery for damages alleged in the underlying claims. The exclusion states in relevant part:

“This insurance does not apply:
* * *
(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

In construing the pollution exclusion language against the factual background alleged in the underlying actions, that there was a discharge, dispersal, release or escape of pollutants and resulting environmental contamination must be assumed. (International Minerals, 168 Ill. App. 3d at 375.) That being so, we must next consider whether the exclusion applies.

Defendants contend that the policy language does not make the exclusion applicable to them since the exclusion language does not specify whether it applies only when the insured actively discharges, dispenses, releases or causes to escape pollutants, which defendants are not charged with, or that the exclusion was intended to apply even when the polluting acts were performed by a third party, as here. They maintain that the rules of construction previously enunciated require the ambiguities to be recognized along with the resultant conclusion in favor of coverage, namely, that only where the insured engages in the actual conduct creating pollution does the exclusion apply. Because of this fact, defendants conclude, insofar as they are charged with no more than delivering the waste to third parties at their own dock for disposal, the exclusion does not apply, citing Niagara County v. Utica Mutual Insurance Co. (1981), 80 A.D.2d 415, 439 N.Y.S.2d 538, and Covington Township v. Pacific Employers Insurance Co. (M.D. Pa. 1986), 639 F. Supp. 793; see also Thomas J. Lipton, Inc. v. Liberty Mutual Insurance Co. (1974), 34 N.Y.2d 356, 314 N.E.2d 37, 357 N.Y.S.2d 705, American Motorists Insurance Co. v. General Host Corp. (D. Kan. 1987), 667 F. Supp. 1423, and United Pacific Insurance Co. v. Van’s Westlake Union, Inc. (1983), 34 Wash. App. 708, 664 P.2d 1262.

It is not clear from the circumstances of this case, and from the underwriting history of the exclusionary clause to which we will later refer, that the parties intended the exclusionary clause to apply whether the insured was an active polluter or not. Certainly, those engaged in manufacturing processes would be expected to have sought other or additional insurance had they known that the mere act of engaging an independent agency such as a waste disposer in the ordinary course of having industrial wastes removed from their property would result in the denial of insurance coverage. There is nothing in the record to show whether such additional insurance was even available when defendants purchased their USF&G policy. This ambiguity must be resolved against USF&G in consonance with the authorities previously cited.

Yet another ambiguity in the policy language is identified. At bar, the circuit court found the release of toxic contaminants in the present case “sudden and accidental,” in accord with Reliance Insurance Co. v. Martin (1984), 126 Ill. App. 3d 94, 467 N.E.2d 287, appeal denied (1984), 101 Ill. 2d 587. Reliance adopted an interpretation of “accidental” similar to the term “occurrence,” as defined in the policy: “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis added.) “Sudden” also was found to mean “neither expected nor intended.” (See 126 Ill. App. 3d at 97-98.) Reliance thus rendered any time factor inherent in the term “sudden” irrelevant and concluded that where the resultant damage was neither expected nor intended, the pollution exclusion did not apply. 126 Ill. App. 3d at 98.

Defendants urge this court to rule similarly that “sudden and accidental” means “unintentional or unexpected” only, and cite numerous decisions reaching the same conclusion based upon their findings that “sudden” is an ambiguous term which must be construed against the insurer. (United States Fidelity & Guaranty Co. v. Thomas Solvent Co. (W.D. Mich. 1988), 683 F. Supp. 1139, 1156-57; New Castle County v. Hartford Accident & Indemnity Co. (D. Del. 1987), 673 F. Supp. 1359, 1364; United States v. Conservation Chemical Co. (W.D. Mo. 1986), 653 F. Supp. 152, 203-04; National Grange Mutual Insurance Co. v. Continental Casualty Insurance Co. (S.D.N.Y. 1986), 650 F. Supp. 1404, 1410-12; City of Northglenn v. Chevron U.S.A., Inc. (D. Col. 1986), 634 F. Supp. 217, 222; Broadwell Realty Services, Inc. v. Fidelity & Casualty Co. (1987), 218 N.J. Super. 516, 534-35, 528 A.2d 76, 85; Jackson Township Municipal Utilities Authority v. Hartford Accident & Indemnity Co. (1982), 186 N.J. Super. 156, 165, 451 A.2d 990, 994-95; Allstate Insurance Co. v. Klock Oil Co. (1980), 73 A.D.2d 486, 488, 426 N.Y.S.2d 603, 605; Buckeye Union Insurance Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App. 3d at 134, 477 N.E.2d at 1235.

Defendants also maintain that the phrase “sudden and accidental” restates the definition of “occurrence,” thereby negating any temporal significance implied by “sudden,” relying upon United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 683 F. Supp. at 1157, Pepper’s Steel & Alloys, Inc. v. United States Fidelity & Guaranty Co. (S.D. Fla. 1987), 668 F. Supp. 1541, 1549, Fireman’s Fund Insurance Cos. v. Ex-Cell-O Corp. (E.D. Mich. 1987), 662 F. Supp. 71, 76, Payne v. United States Fidelity & Guaranty Co. (S.D. Fla. 1985), 625 F. Supp. 1189, 1193, CPS Chemical Co. v. Continental Insurance Co. (1984), 199 N.J. Super. 558, 568-69, 489 A.2d 1265, 1270, Kipin Industries, Inc. v. American Universal Insurance Co. (Ohio App. August 12, 1987), No. C — 860658, slip op. at 4, and United Pacific Insurance Co. v. Van’s Westlake Union, Inc., 34 Wash. App. at 713-14, 664 P.2d at 1266.

Antipodally, USF&G places great emphasis upon the fact that Reliance was the only case in Illinois construing the policy language at the time of the instant decision, but since that time International Minerals has been decided, which disagreed with the Reliance policy language construction. USF&G urges that we now follow International Minerals and other authorities which have construed similar language in the same way. We decline to do so for reasons which follow.

We note, first, an important factual difference between the present case and International Minerals, namely, that the insured in the latter case was charged with active polluting conduct, unlike defendants in the case before us. Further, we are persuaded that defendants and amicus curiae Illinois Manufacturers’ Association (IMA) correctly depict the historical background of the exclusionary clause, that interpreting “sudden” to mean “abrupt” and “instantaneous” contravenes the insurance industry’s announced intent in adding the pollution exclusion to the general liability policy. Prior to the insertion of the pollution exclusion in the early 1970s, “occurrence-based” coverage embraced not only the usual accident, but also exposure to conditions which continued for an unmeasured period of time. The expressed intent underpinning the insertion of the pollution exclusion clause was submitted for approval to various State insurance commissioners by representatives of the insurance industry, such as the Mutual Insurance Rating Bureau (MIRB), an association serving the insurance industry. For example, MIRB, which assisted in the draft of the exclusion endorsement, in a submission to the West Virginia Commissioner of Insurance, explained that the intent of the clause was to clarify “that the definition of occurrence excludes damages that can be said to be expected or intended." (Emphasis added.) Pendygraft, Plews, Clark, & Wright, Who Pays for Environmental Damage: Recent Developments in CERCLA Liability & Insurance Coverage Litigation, 21 Ind. L. Rev. 117, 154 (1988), citing Anderson & Luppi, Environmental Risk Insurance: You Can Count on It, 1987 Risk Management 68.

The exclusionary clause also was intended to decrease claims for pollution-related losses by providing companies with an incentive to improve manufacturing and disposal processes. The wording demonstrates, however, that any unintentional or unexpected contamination would still be covered as an “occurrence” under the policy. Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J. at 534, 528 A.2d at 84-85; see also Kipin Industries, Inc. v. American Universal Insurance Co. (Ohio App. August 12, 1987), No. C— 860658, slip op. at 4; United Pacific Insurance Co. v. Van’s Westlake Union, Inc., 24 Wash. App. at 713-14, 664 P.2d at 1266; Hurwitz & Kohane, The Love Canal — Insurance Coverage For Environmental Accidents, 50 Ins. Couns. J. 378, 379 (1983). Cf. Claussen v. Aetna Casualty & Surety Co., 676 F. Supp. at 1573.

We are persuaded that, under the facts alleged in the underlying actions, the policy language,' and the historical background of the exclusionary clause, the ambiguities identified by defendants must be construed against USF&G. There was no error, therefore, in the circuit court’s finding that the pollution exclusion clause in USF&G’s policy did not justify its declination to defend against the lawsuits involving defendants.

Ill

USF&G argues that it owes no duty to defend the claim asserted by the USEPA in the PRP letter because the policy obligates it to defend “suits” only, and that, absent the filing of an actual complaint, no “suit” exists. The pertinent policy provision states:

“[T]he Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgment or settlements.”

Defendants rely upon Fireman’s Fund Insurance Cos. v. Ex-Cell-O Corp. (662 F. Supp. at 75), which held that a “suit” “includes any effort to impose on the policyholders a liability ultimately enforceable by a court.” The Ex-Cell-0 court relied, in part, upon United States Aviex Co. v. Travelers Insurance Co. (1983), 125 Mich. App. 579, 586, 336 N.W.2d 838, 841, in which the court found an insurer’s duty to defend where only “threats of legal action” were asserted against the insured. Presuit legal services also were identified as part of a defense against liability being claimed that made it virtually certain that a lawsuit would be filed, in Liberty Mutual Insurance Co. v. Continental Casualty Co. (1st Cir. 1985), 771 F.2d 579, 586.

A contrary conclusion was reached in Detrex Chemical Industries, Inc. v. Employers Insurance (N.D. Ohio 1987), 681 F. Supp. 438, 442-43, 446. The court there construed a provision similar to the clause in USF&G’s policy and found that the word “allegations” in the clause demonstrated the traditional meaning of “suit” was intended and “suit” connotes actions brought in court. Pursuant to a motion for partial reconsideration, however, the Detrex court acknowledged that the issuance of a remedial order by the USEPA would trigger the insurer’s duty to defend. (Detrex, 681 F. Supp. at 460. See Clarke v. Fidelity & Casualty Co. (1967), 55 Misc. 2d 327, _, 285 N.Y.S.2d 503, 527.) In Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1188 n.7, the court found an administrative proposal by the General Services Administration that an employer settle an employment discrimination claim too “remote” and “speculative” to constitute a “suit” for insurance coverage purposes, but the court also recognized that adjudicatoiy proceedings before an administrative body could trigger a suit and a concomitant duty to defend.

It may be presumed that a “potentially responsible party” responding to the USEPA’s letter will be requested to undertake voluntarily such actions as the agency could choose to require through an action in the court. The fortuitous choice to first seek voluntary compliance instead of court action does not eliminate the specter of potential liability for cleanup costs and damages to be incurred by defendants. Indeed, it is the very threat of available formal legal action that is expected to motivate the recipient of a PEP letter into responding acceptably to the government’s suggestions.

From the foregoing we conclude that the circuit court properly determined that USF&G is obligated to defend actions contemplated by the PEP letter.

IV

The next issue raised is whether the circuit court erred in ruling that the “property used” exclusion was inapplicable to the case at bar. In pertinent part, the exclusion states:

“This insurance does not apply
* * *
(k) to property damage to * * *
(2) Property used by the insured.”

In its memorandum opinion, the circuit court ruled that the People v. Cross complaint “does not allege that [defendants were] ‘using’ the damaged property. There are no allegations that [defendants] owned or conducted business operations at the site.” Defendants, too, equate “use” of the subject property with “ownership” and rely upon three decisions which found insureds entitled to coverage under similar provisions because they did not “own” the tainted premises. United States Aviex Co. v. Travelers Insurance Co., 125 Mich. App. at 590-91, 336 N.W.2d at 843-44; CPS Chemical Co. v. Continental Insurance Co. (1988), 222 N.J. Super. 175, 189, 536 A.2d 311, 318; Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J. at 532, 528 A.2d at 82-83. Cf. Caisson Corp. v. Home Indemnity Corp. (1986), 151 Ill. App. 3d 130, 135, 502 N.E.2d 1168; Alderman v. Hanover Insurance Group (1975), 169 Conn. 603, 605, 363 A.2d 1102, 1105.

Defendants were alleged to have delivered wastes to collectors at defendants’ own facilities in Elk Grove; it was not claimed that defendants directed the waste disposal companies to utilize any specific method of disposal or locale for disposal. To suggest policy language interpretation that defendants “used” the Cross and Midco sites by employing the grounds for the purpose of dumping when disposal agencies, insofar as presently appears, themselves owned or selected the sites in performing their services is to create an ambiguity and then resolve it against the policyholder instead of the insurer, contrary to rules of construction.

The circuit court correctly held that the “property used” exclusion does not bar coverage.

V

Lastly, it is maintained that the underlying claims are not entitled to USF&G’s defense because none seek “damages” as that term is defined in the policy. USF&G insists that “damages” are legal damages only and, in particular, legal damages paid to compensate for property damage. In contrast, USF&G continues, the underlying claims here seek relief only as injunctive relief, civil penalties, “response costs”, or economic loss.

Defendants assert USF&G waived this argument by neglecting to raise it in the circuit court. The parties addressed the question of whether the underlying claims requested “damages,” however, during the hearings before the court and by reference to USF&G’s interpretation of the term in the July 22, 1987, memorandum opinion. There was no waiver. See Frankenthal v. Grand Trunk Western R.R. (1983), 120 Ill. App. 3d 409, 417, 458 N.E.2d 530.

It has been asserted by some authorities that “damages” do not include court-ordered equitable relief, only “payments to third persons when those persons have a legal claim for damages against the [ijnsured on account of injury to or destruction of property.” (Aetna Casualty & Surety Co. v. Hanna (5th Cir. 1955), 224 F.2d 499, 503; Verían, Ltd. v. John L. Armitage & Co. (N.D. Ill. 1988), 695 F. Supp. 950, 954; Ladd Construction Co. v. Insurance Co. of North America (1979), 73 Ill. App. 3d 43, 46-47, 391 N.E.2d 568.) Excluded, too, from coverage are the costs of complying with injunctions (Ladd, 73 Ill. App. 3d at 47), even where the same suits could have been brought for damages (Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co. (8th Cir. 1988), 842 F.2d 977, 986).

This reading of the term relies on the “accepted, technical” meaning of “damages”; however, it has been recognized that the term is “ambiguous” to the nonlegal community (Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d at 985) and that such a conclusion is “arbitrary” and grounded in “outdated distinctions” (Maryland Casualty Co. v. Armco, Inc. (D. Md. 1986), 643 F. Supp. 430, 435).

Ambiguous insurance policy terms must be construed against the insurer. (Qualls v. Country Mutual Insurance Co., 123 Ill. App. 3d at 833.) Whether a term is ambiguous depends not on how the legally trained mind interprets the word, but rather how the ordinary person understands it. (Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. of North America (1952), 411 Ill. 325, 335, 104 N.E.2d 250; see also 13 J. Appleman & J. Appleman, Insurance Law & Practice 158-59 (rev. ed. 1976).) Webster’s Dictionary imparts “damages” with a meaning much broader than that urged by USF&G:

“The estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right.” (Webster’s Third New International Dictionary 571 (rev. ed. 1971).)

(See also New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. at 1365.) In our opinion, an “insured ought to be able to rely on the common sense expectation that property damage within the meaning of the policy includes a claim which results in causing him to pay sums of money because his acts or omissions affected adversely the rights of third parties. While such claims might be characterized as seeking ‘equitable relief,’ the cleanup costs are essentially compensatory damage for injury to common property and for that reason the insurer has a duty to defend.” United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 683 F. Supp. at 1168.

Numerous jurisdictions avoid ancient distinctions between law and equity and reject outright the limited interpretation of “damages” advanced by USF&G, favoring a broader reading to include response costs and other expenditures incurred by complying with injunctive orders. United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 683 F. Supp. at 1168; Centennial Insurance Co. v. Lumbermens Mutual Casualty Co., 677 F. Supp. at 349-50; New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. at 1365-66; Township of Gloucester v. Maryland Casualty Co. (D.N.J. 1987), 668 F. Supp. 394, 399-400; United States v. Conservation Chemical Co. (W.D. Mo. 1986), 653 F. Supp. 152, 194; see also Intel Corp. v. Hartford Accident & Indemnity Co. (N.D. Cal. 1988), 692 F. Supp. 1171, 1194.

USF&G asserts that the limited construction of “damages” comports with section 107 of CERCLA, which distinguishes between recovery for cleanup costs (42 U.S.C.A. §§9607(a)(4)(A), (a)(4)(B) (1983)) and recovery of “damages for injury to, destruction of, or loss of natural resources” (42 U.S.C.A. §9607(a)(4)(C) (1983); see Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d at 986; Verlan, 695 F. Supp. at 954.) The policy itself makes no such distinction, nor does the policy direct that its terms be construed with reference to the Federal statute. (See Intel Corp. v. Hartford Accident & Indemnity Co., 692 F. Supp. at 1187.) The equitable relief and civil penalties sought by the State in People v. Cross thus fall within the ambit of coverage offered by the policy, as does the claim for contribution in the Midco complaint. See Verlan, 695 F. Supp. at 951-52.

Because defendants have not been sued for “property damage” as defined in the policy, USF&G urges it is not required to represent defendants under the policy. It further maintains that any sums payable on behalf of defendants must be “damages because of *** property damage to which this insurance applies.” The policy defines property damage as:

“(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or

(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.”

Citing Mraz v. Canadian Universal Insurance Co. (4th Cir. 1986), 804 F.2d 1325, and its progeny (Cincinnati Insurance Co. v. Milliken & Co. (4th Cir. 1988), 857 F.2d 979, 981; Protective National Insurance Co. v. Union Oil Co. (Cal. Super. October 29, 1987), No. C 514 463, slip op. at 3; C.D. Spangler Construction Co. v. Industrial Crankshaft & Engineering Co. (N.C. Super. January 4, 1988), No. 86 CVS 13349, slip op. at 2), USF&G contends that the statutory schemes pursuant to which injunctive relief, cleanup and response costs were requested in the Midco and People v. Cross claims distinguish equitable relief from relief for pure property damage. The Mraz court noted that sections 107(aX4XA) and 107(aX4XB) of CERCLA permit enumerated persons to be held liable for “all costs of removal or remedial action” and “any other necessary costs of response” incurred by State or Federal governments in addressing polluted sites; section 107(a)(4)(C), however, permits recovery of “damages for injury to, destruction of, or loss of natural resources.” (42 U.S.C.A. §§9607(aX4XA) through (aX4XC) (1983).) Because the underlying complaint in Mraz did not seek relief under the latter CERCLA subsection, the court determined that the contamination at the site was not an injury for which the government claimed relief, but only a “factual predicate of the cost reimbursement claim”; and “[rjesponse costs are not themselves property damages,” but rather “economic loss.” Mraz, 804 F.2d at 1328-29. We disagree.

The conclusion reached in Mraz overlooks critical language contained in the policy, namely, that the insurer promises to “pay *** all sums which the insured shall become legally obligated to pay as damages because of *** property damage.” (Emphasis added.) The plain language of the policy, therefore, demonstrates that where the genesis of the relief sought is “physical injury to tangible property” or “loss of use of tangible property,” the claim seeks relief from “property damage” as defined by the contract. (New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. at 1366; Indepen dent Petrochemical Corp. v. Aetna Casualty & Surety Co. (D.D.C. 1986), 654 F. Supp. 1334, 1359.) Moreover, whether the insured must reimburse a party for the cost of cleaning the property or undertake measures itself to cure the injury inflicted upon the environment, the basis is the same: the amount of money spent to remedy property damage caused by the policyholder.

Mraz also questioned the sufficiency of State or Federal interest in the contaminated property to allege property damage. (Mraz, 804 F.2d at 1329.) In Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co. (8th Cir. 1987), 811 F.2d 1180, 1185-87, the court found that governments may seek redress of injury to their “quasi-sovereign” interest in the environment within their jurisdictions: “[T]he improper release of toxic wastes may cause ‘property damage’ not only to the actual owner of the land, water, or air, but also to state and federal governments because of their ‘interest independent of and behind the titles of [their] citizens, in all the earth and air within [their] domain’ ” quoting Georgia v. Tennessee Copper Co. (1907), 206 U.S. 230, 237, 51 L. Ed. 1038, 1044, 27 S. Ct. 618, 619.

Additional proof that the policy envisioned a broad reading of “property damage” lies in the pollution exclusion. There, the contract states “[t]his insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of *** toxic chemicals.” The exclusion thus expressly recognizes that “property damage” results from environmental pollution. As noted in United States v. Conservation Chemical Co. (653 F. Supp. at 194), “[t]he fact that the so-called ‘pollution exclusion’ seeks to limit coverage for property damage to ‘sudden and accidental’ dispersals does not mean that damage or destruction to tangible property has not resulted from other escapes of contaminants.”

The narrow construction advanced by USF&G would require this court to deny that several years of illegal dumping at the Cross and Midco sites, producing soil and groundwater contamination, constitutes “injury to tangible property,” a conclusion directly contrary to several persuasively similar decisions (see Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co., 842 F.2d at 983; Port of Portland v. Water Quality Insurance Syndicate (9th Cir. 1986), 796 F.2d 1188, 1194; New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. at 1366; United States v. Conservation Chemical Co., 653 F. Supp. at 194; Kutscher’s Country Club Corp. v. Lincoln Insurance Co. (1983), 119 Misc. 2d 889, _, 465 N.Y.S.2d 136, 139) and would produce an absurd result. Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 181, 430 N.E.2d 708.

Invoking Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, USF&G next suggests that the underlying claims request relief for “economic loss.” The supreme court in Moorman resolved an issue not presented by this appeal: whether economic loss is recoverable in tort. USF&G’s reliance on Moorman is not readily apparent. USF&G erroneously assumes that if damage may be measured in economic terms, the damage itself is economic loss. (See Independent Petrochemical Corp. v. Aetna Casualty & Surety Co., 654 F. Supp. at 1359; but see Mraz, 804 F.2d at 1329.) Other Illinois cases cited by USF&G are factually distinct from the case at bar. Each involves the manufacture or delivery of defective products or services by the insured, who then claims that the cost of remedying the products or services amounted to property damage. E.g., CMO Graphics, Inc. v. CNA Insurance (1983), 115 Ill. App. 3d 491, 496-97, 450 N.E.2d 860; Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 690, 414 N.E.2d 1218; Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 124, 294 N.E.2d 7.

The circuit court did not err in concluding that defendants properly presented to USF&G claims for “property damage” as contemplated by the policy.

For the foregoing reasons, the circuit court orders granting defendants’ motion for partial summary judgment and denying USF&G’s motion for judgment on the pleadings are affirmed.

Affirmed.

EGAN, P.J., and BILANDIC, J., concur.

      See United States Fidelity & Guaranty Co. v. Star Fire Coals, Inc. (6th Cir. 1988), 856 F.2d 31, 35; Great Lakes Container Corp. v. National Union Fire Insurance Co. (1st Cir. 1984), 727 F.2d 30, 33-34; Centennial Insurance Co. v. Lumbermens Mutual Casualty Co. (E.D. Pa. 1987), 677 F. Supp. 342, 349; Claussen v. Aetna Casualty & Surety Co. (S.D. Ga. 1987), 676 F. Supp. 1571, 1580; American Motorists Insurance Co. v. General Host Corp. (D. Kan. 1987), 667 F. Supp. 1423, 1428; Fischer & Porter Co. v. Liberty Mutual Insurance Co. (E.D. Pa. 1986), 656 F. Supp. 132, 140; Barmet of Indiana, Inc. v. Security Insurance Group (Ind. App. 1981), 425 N.E.2d 201, 203; Waste Management of Carolinas, Inc. v. Peerless Insurance Co. (1986), 315 N.C. 688, 701, 340 S.E.2d 374, 383; Transamerica Insurance Co. v. Sunnes (1985), 77 Or. App. 136, 140, 711 P.2d 212, 214; Techalloy Co. v. Reliance Insurance Co. (1984), 338 Pa. Super. 1, 13, 487 A.2d 820, 826-27; City of Milwaukee v. Allied Smelting Corp. (1983), 117 Wis. 2d 377, 385, 344 N.W.2d 523, 527.

      The same distinction obtains in each of the foregoing cases except in Centennial; however, in that case, the issue was neither raised nor decided.

      Articles relied upon by USF&G posit that “sudden” in the pollution exclusion must be interpreted as limiting the insured’s coverage to accidents distinct in time and place, and is not a mere restatement of the “occurrence” definition. Bromwich, Pollution & Insurance, Risk Management, at 15, 17-18 (April 1971); Brockmeier, Pollution — The Risk & Insurance Problem, 12 For the Def., at 77, 79 (Sept. 1971); Pfennigstorf, Environment, Damages & Compensation, 1979 Am. B. Found. Res. J. 347, 440-41; Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo. L.J. 1237, 1252-53 (1986).


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ALLMAN et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—86—2410
    Opinion filed March 8, 1989.

      Paul B. Biebel, Jr., Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Andrea K. Muchin, and Judith C. Rice, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendants, Michael Allman and Thomas Allman, were convicted of aggravated criminal sexual assault, aggravated battery and unlawful restraint. Michael Allman also was convicted of robbery. Defendants each were sentenced to concurrent imprisonment terms of 10 years for aggravated criminal sexual assault, seven years for aggravated battery, and two years for unlawful restraint. Michael additionally received a six-year concurrent sentence for robbery. Defendants appeal, alleging that the State did not prove them guilty of aggravated criminal sexual assault, or Michael Allman guilty of robbery, beyond a reasonable doubt; that they improperly were convicted of the lesser included offenses of aggravated battery and unlawful restraint as these convictions arose from the same conduct as did the conviction for aggravated criminal sexual assault; and that the seven-year sentence for aggravated battery was imposed unlawfully.

The victims testified to the following facts. On July 2, 1984, the female victim met the male victim at his mother’s home. They stayed there for a few hours, talking and drinking beer. At approximately 9:30 or 10 p.m., they walked to a bar and split a drink. They then hitchhiked to another bar, where they each had two drinks. They then proceeded to a third bar, arriving at approximately 2:30 or 3 a.m.

There, the victims struck up a conversation with the two defendants and four other individuals. Each of the victims consumed four drinks while at the bar. Paul Joyce, one of the individuals with defendants, began to talk to the male victim. Later, Joyce danced with the female victim.

The victims left the bar at 4 a.m. The female victim had asked Joyce if she and the male victim could have a ride home. The victims entered the automobile with the two defendants, Joyce, and three men who also were with defendants. The car was driven by one of the other men. The two defendants were seated in the front. The victims were in the back seat, the female victim on Joyce’s lap.

Michael Allman directed the driver to proceed to Oak Lawn, where the male victim lived. At 92nd and Harlem, Michael directed the driver to pull off onto the gravel road. The men exited the vehicle to urinate. The female victim remained near the vehicle. The male victim walked away from the car but started back when he heard the female victim cry out. The female victim testified that Joyce had been touching her shoulders and breasts. The male victim put his arm around the female victim and suggested that they leave. Michael then hit the male victim on the side of the head and forced him to walk to some bushes located 20 to 30 feet away from the vehicle.

The male victim testified that Michael ordered him to give up his money. Michael threatened to kill him if he refused. When the male victim told Michael that he did not have any money, Michael went into the male victim’s pants pocket and pulled out his wallet. Defendants then pulled off his pants and boots. The male victim indicated that he could not get up because he constantly was being punched and kicked in the head.

The male victim stated that at some point he lost consciousness. He next recalled that he was pulled onto the gravel road and was placed on his stomach. He stated that someone took a shoe and tried to shove it into his anus. He could not identify who had done this. He further stated that he then felt a penis in his anus, but again could not identify who had done this. He additionally felt someone urinate on his back. He lost consciousness again and when he awakened, defendants and the other individuals were beating and kicking him and he could hear them laughing.

The female victim testified that after the male victim suggested they leave, she was hit in the back of the head and she fell to her knees. Although she could not see who hit her, both defendants were standing near her. One of the other men came over and forced her to perform oral sex on him for several minutes. During this time, she could hear the male victim screaming. Joyce and Michael then began beating her about the head and face with a hard object. Someone pulled her pants off and got on top of her. She believed that it was Michael. She felt Michael trying to penetrate her with his penis. Another man and Joyce also attempted to have sexual intercourse with her. She then lost consciousness. When she awakened, she was being beaten by both defendants, Joyce, and two of the other men. She stated that she was struck on her head, body and anus with a hard object.

After defendants and the other individuals left, the male victim got up to look for the female victim. He picked her up off the ground and they walked down Harlem to get help. Both were naked from the waist down. They eventually gained entry to a building on Harlem, and at approximately 5:15 a.m., the police and the paramedics were called.

The victims were taken by ambulance to Christ Hospital. The female victim remained in the hospital for four days and was treated for a broken finger, a fractured nose and a hole in her inner thigh. The male victim was not admitted to the hospital, but did receive sutures in various portions of his head. Both victims were examined for evidence of semen. The results of those tests were negative. The victims additionally were given blood-alcohol tests. The percentage of alcohol in the male victim’s blood was 1.53 and the percentage of alcohol in the female victim’s blood was 2.07.

While at the hospital, the male victim viewed a group of photographs brought in by Sergeant Dapkus of the Bridgeview police department. The male victim identified Joyce and both defendants. The next day, Dapkus arrested Joyce and Michael. (Thomas fled and was not arrested until a year later.) At a lineup conducted the day of the arrest, the male victim identified Michael. Dapkus took lineup photographs to the hospital and showed them to the female victim. She also identified Michael.

At trial, the victims’ testimony was corroborated by the State’s witness, Luaftha Jones. Jones was one of the individuals present that evening. Jones testified that although he was under indictment for the July 3, 1984, incident, he had agreed to testify in this case and the State’s Attorney’s office had agreed to recommend that he be incarcerated for four years.

Jones testified that the victims met defendants and four other individuals at a bar; that the group left together when the bar closed; that on the way to the male victim’s home, the group pulled off onto a gravel road; and that after the group exited the vehicle, Michael hit the male victim on the side of the head and forced him to walk over behind some bushes. Michael then forced the male victim to lie on his stomach with his hands behind his head. Jones saw Michael urinate on the male victim’s back and try to push a shoe into his anus.

Jones also testified that after Michael dragged the male victim away, one of the other men forced the female victim to perform oral sex on him. A few minutes later, defendants and Joyce began to beat the female victim and to attempt to have sexual intercourse with her. Thomas subsequently dropped a brick on her. Jones heard Michael threaten to kill the male victim and heard Thomas threaten to kill the female victim.

Defendants first contend they were not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault. Michael additionally contends he was not proved guilty beyond a reasonable doubt of robbery. Defendants maintain that the testimony of the victims regarding the incidents which occurred that night was improbable, incredible and unconvincing so as to require reversal of their aggravated criminal sexual assault convictions and of Michael’s robbery conviction. We do not agree.

Generally, a reviewing court will not reverse a conviction unless the evidence presented to the jury has been so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) In those cases involving sex offenses, the reviewing court has a special duty to scrutinize the evidence closely. (People v. Olesch (1986), 143 Ill. App. 3d 577, 492 N.E.2d 1381.) Nonetheless, a verdict of guilty is not subject to reversal simply because the jury has chosen to believe the evidence presented by the prosecutor. (People v. West (1981), 102 Ill. App. 3d 50, 429 N.E.2d 599.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving weight of evidence or credibility of witnesses. People v. Devine (1981), 101 Ill. App. 3d 158, 427 N.E.2d 1277.

In order to find defendants guilty of aggravated criminal sexual assault, the trier of fact must find that they committed an act of sexual penetration by the use of force or threat of force, and that aggravating circumstances existed during the commission of this offense. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 — 14.) A conviction for aggravated criminal sexual assault, when the defendant denies the charge, will be upheld when there is either some corroboration of the testimony of the prosecuting witness or when that testimony is otherwise clear and convincing. (People v. Graham (1978), 60 Ill. App. 3d 1034, 377 N.E.2d 179.) The testimony of the complaining witness need not be uncontradicted or unimpeached in order to be deemed clear and convincing. Graham, 60 Ill. App. 3d 1034, 377 N.E.2d 179.

We believe that here, the testimony of the victims and of Jones adequately established that the offense of aggravated criminal sexual assault occurred. They all gave substantially similar accounts of the events of that evening. Their testimony is entirely consistent. All three parties testified to virtually the same set of events in the same sequence.

The fact that there was no physical evidence of semen to corroborate the victims’ assertions does not render their testimony unbelievable. Such physical evidence is not required to sustain a conviction for a sex offense since the presence of semen is not required to prove commission of a sex crime. (People v. DuPree (1987), 161 Ill. App. 3d 951, 514 N.E.2d 583.) Moreover, neither victim testified that defendants ejaculated, only that defendants attempted various types of sexual contact. Thus, defendants’ reliance on the lack of this type of physical evidence is unwarranted.

We similarly are unpersuaded by defendants’ contention that the victims’ testimony must be discounted because the victims were so intoxicated that evening that their memories were affected and they could not accurately recall the events which transpired. Defendants note that the male victim had a blood-alcohol level of 1.53 and the female victim had a blood-alcohol level of 2.07.

We believe the jury was adequately informed of the physical condition of the victims that evening and was in the best position to evaluate the effect which their physical condition had on their ability to observe and to remember. (See People v. Stokes (1979), 71 Ill. App. 3d 773, 389 N.E.2d 1352.) The jury was aware of the level of blood alcohol in each of the victims. Moreover, the jury heard the male victim’s testimony that although he was intoxicated, he was able to remember the events of that night. The jury reasonably could have concluded that the victims’ level of intoxication did not significantly affect their ability to observe and to remember.

Defendants further contend that various discrepancies and uncertainties in the female victim’s testimony render her testimony unbelievable. We believe her testimony was sufficiently clear and convincing to sustain defendants’ convictions. Moreover, any discrepancies merely go to the weight to be accorded her testimony by the trier of fact. (See, e.g., People v. Trejo (1976), 40 Ill. App. 3d 503, 352 N.E.2d 68.) Her testimony was also substantially corroborated by the clear and convincing testimony of the male victim and of Jones.

Defendants finally contend that Jones’ testimony must be discounted because he was indicted for the same offense as defendants and had agreed to testify in exchange for a recommendation that he receive a lesser sentence. We believe that Jones’ testimony was afforded the appropriate measure of credit. The jury was informed of the arrangements which Jones had made with the State’s Attorney’s office; the jury was given the opportunity to observe Jones’ demeanor when testifying; and the jury was instructed that because Jones was involved in the crime, his testimony was to be treated with suspicion.

Although promises of leniency require that an accomplice’s testimony be regarded with some degree of skepticism, a conviction based on such evidence may stand if the testimony is of such a character as to convince a jury of a defendant’s guilt beyond a reasonable doubt. (People v. Brisbon (1980), 89 Ill. App. 3d 513, 411 N.E.2d 956.) Whether accomplice testimony, corroborated or not, is satisfactory for conviction goes to the weight of the evidence and properly is in the province of the jury. (Brisbon, 89 Ill. App. 3d 513, 411 N.E.2d 956.) The fact that the witness may have had an expectation of leniency does not alone render his testimony incredible. We find defendants’ contention that Jones’ testimony is unbelievable to be unmeritorious. Defendants were proved guilty of aggravated criminal sexual assault beyond a reasonable doubt.

Michael Allman additionally contends that he was not proved guilty of robbery beyond a reasonable doubt.

The offense of robbery is committed when a defendant, by force or threat of force, causes the victim to part with property against his will. (111. Rev. Stat. 1983, ch. 38, par. 18 — 1.) Here, the jury heard the male victim’s testimony that Michael hit him, knocked him to the ground and demanded that he give Michael his money. Moreover, both the male victim and Jones testified that Michael threatened to kill the male victim if he did not give Michael his money and that Michael took his wallet. Thus, the testimony was sufficient to prove Michael guilty of robbery.

Defendants next contend that their convictions for aggravated battery and unlawful restraint must be set aside because they arose from the more serious offense of aggravated criminal sexual assault. Defendants argue that they would be unduly prejudiced by multiple convictions arising from the same series of acts.

Prejudice results to the defendant when more than one offense is carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) In such situations, it is proper to enter a judgment and sentence only on the most serious of the offenses. (Peo ple v. Sass (1979), 73 Ill. App. 3d 554, 392 N.E.2d 399.) Multiple convictions and concurrent sentences should be permitted, however, in cases in which a defendant has committed several interrelated acts so long as the convictions are not for included offenses. King, 66 Ill. 2d 551, 363 N.E.2d 838; People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333.

The Criminal Code of 1961 defines a lesser included offense as one which “(a) [i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1983, ch. 38, par. 2 — 9(a).) Thus, the greater offense must fully embrace all of the elements of the lesser offense. People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.

We will initially address whether unlawful restraint is a lesser included offense of aggravated criminal sexual assault. Although defendants failed to raise the issue at trial or in their post-trial motion, we will address defendants’ contention.

In People v. McCann (1979), 76 Ill. App. 3d 184, 394 N.E.2d 1055, the court held that unlawful restraint was a lesser included offense of rape because all the elements of the former necessarily are present in the latter. Thus, the court found that a defendant convicted of rape could not also be convicted of unlawful restraint. (McCann, 76 Ill. App. 3d 184, 394 N.E.2d 1055.) The State cites People v. Webb (1986), 143 Ill. App. 3d 427, 493 N.E.2d 52, in support of its position that a defendant may be convicted of both unlawful restraint and aggravated criminal sexual assault. The Webb court, however, discussed the issue of unlawful restraint as a lesser included offense of rape only in dicta as defendant had waived the issue for purposes of appeal. (Webb, 143 Ill. App. 3d 427, 493 N.E.2d 52.) Therefore, we need not rule within the parameters of that court’s discussion.

Moreover, were we to follow the Webb decision as it relates to this issue, we still would find that unlawful restraint is a lesser included offense of aggravated criminal sexual assault. In Webb, there were three separate and distinct instances in which the complainant was detained unlawfully, one of which did not involve sexual contact between defendant and complainant. Furthermore, these instances occurred over a period of several hours. Although each act occurred between defendant and complainant, the court concluded that each act was not a part of the same transaction. Accordingly, the court determined that it could affirm convictions for unlawful restraint and rape, and not violate the King mandate. Webb, 143 Ill. App. 3d 427, 493 N.E.2d 52.

We believe, however, that in the absence of facts such as those found in Webb, unlawful restraint is a lesser included offense of aggravated criminal sexual assault. Thus, McCann, and not Webb, controls our resolution of defendants’ contention that the convictions for unlawful restraint be vacated. Here, the sexual assault and the unlawful restraint each were an interrelated act in the same transaction. In this setting, as in McCann, unlawful restraint is a lesser included offense of aggravated criminal sexual assault. Accordingly, the King decision mandates that the convictions for unlawful restraint be vacated.

As to the charges of aggravated battery, defendants did not raise the issue either at trial or in their post-trial motion. More importantly, defendants present no argument in their brief in support of their contention that aggravated battery is a lesser included offense of aggravated criminal sexual assault and thus that those convictions must be vacated. Consequently, we deem the issue waived. Nevertheless, we find that the charges of aggravated battery are not carved out of the same physical conduct of aggravated criminal sexual assault. (See King, 66 Ill. 2d 551, 363 N.E.2d 838.) The evidence discloses that after the sexual assaults had been completed, both victims were kicked and beaten, and the female victim was struck with a brick, causing great bodily harm. Defendants were properly convicted of aggravated battery.

However, aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(e)), carrying a maximum sentence of not less than two years and not more than five years. Consequently, it was improper to sentence defendants to terms of seven years for aggravated battery. Nevertheless, we do not believe that it is necessary to remand the causes for resentencing.

Accordingly, defendants’ convictions for aggravated criminal sexual assault, and Michael Allman’s conviction for robbery, are affirmed. Defendants’ convictions for aggravated battery are affirmed, but the sentences are reduced to five years. Defendants’ convictions for unlawful restraint are vacated.

Judgments affirmed in part; affirmed in part as modified; vacated in part.

FREEMAN, P.J., and WHITE, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN SAWCZENKO, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—3272
    Opinion filed March 9, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Al Tomaso, and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Stephen Sawczenko, was convicted of residential burglary and sentenced to 12 years in the Illinois Department of Corrections. Defendant raises three issues on appeal: (1) whether the trial court erred when it denied his motion to suppress evidence; (2) whether comments made by the State during its closing argument were prejudicial so as to deny him a fair trial; and (3) whether the trial court abused its discretion in sentencing him to 12 years’ imprisonment. We affirm.

Before trial, defendant filed a motion to suppress evidence seized at 1334 N. Kildare Avenue in Chicago on September 20, 1985. Defendant argued that the search violated his fourth amendment rights because, while it was conducted pursuant to defendant’s arrest, the arrest was a pretext for the search. At the hearing on the motion, two police officers who were involved with the arrest testified, Detective James Baraniak (Baraniak) and Detective Richard Heinrich (Heinrich). Baraniak testified that he, Heinrich, Detective Silich (Silich) and Detective Perrington were investigating defendant in connection with an August 1985 residential burglary at 6201 N. Kilpatrick. Pursuant to that investigation an arrest warrant for defendant was issued on September 5. Attempts to arrest defendant at his last known address were unsuccessful because they were unable to locate him at that address. Baraniak testified that between September 17 and September 20 he and the other three detectives, whose names were also on the arrest warrant, saw defendant approximately 10 times, but they were unable to arrest defendant on any of those occasions because, in each instance, he was seen in a moving vehicle which they tried to follow but which they lost in traffic each time.

On the morning of September 20, the detectives received an anonymous telephone call informing them that defendant’s car was parked at 1334 N. Kildare. The detectives drove to that location and staked out defendant’s car from about 9 a.m. until 1 p.m. When they saw a child on the street and they asked him if he knew if defendant lived in the area, the child pointed out the apartment where defendant’s father lived. Baraniak testified that he and Heinrich went to the back entrance of the building and Silich and Perrington went to the front. When he and Heinrich arrived at the back door of the apartment, he looked through a hole in the door and he observed defendant, in his underwear, come out of the bedroom, walk to the living room window, look out and then return to the bedroom. At the same time, Silich was knocking on the front door and ringing the bell to the apartment. Baraniak knocked on the back door several times, identified himself and informed defendant that he had a warrant for defendant’s arrest. When defendant refused to open the door, Baraniak took a hammer that he found lying on the back porch and broke the lock on the door. The door led to the kitchen and the bedroom was off of the kitchen. When Baraniak entered the apartment, he saw defendant standing in the kitchen near the door leading to the bedroom. The door was open. Defendant was placed under arrest. Baraniak testified that while standing in the kitchen, he saw a gun under the bed in the bedroom, but that he thought that Heinrich saw the gun first and then pointed it out to him. Because defendant wanted to put clothes on, the detectives accompanied him to the bedroom, where they saw a duffel bag with an “Eddie Bauer” label that met the description of one of the items that had been taken during the burglary. At this point we note that the trial transcript revealed a different explanation of the circumstances leading to the seizure of the duffel bag during defendant’s arrest. At trial, Baraniak testified that he first saw the duffel bag when he was arresting defendant. He stated that defendant was standing in the kitchen near an open door that led to a bedroom. When Baraniak looked through the open doorway, he saw the Eddie Bauer bag. He then testified that the detectives entered the bedroom to get clothes for defendant and at that point the evidence was seized.

Detective Heinrich provided similar testimony. He testified that he participated in the investigation of defendant in connection with a residential burglary and that he was involved in the issuance of the arrest warrant and subsequent arrest of defendant. Heinrich stated that a few days prior to defendant’s arrest he saw defendant in a vehicle on a highway, but because defendant was traveling in an opposite direction, Heinrich was unable to make an arrest. He also testified that on September 20 an anonymous caller notified police that defendant’s father and sister shared a rear apartment at 1334 North Kildare, and that the detectives would find defendant’s car parked at that location. The detectives drove to that address and staked out defendant’s car for several hours, after which time they decided to go to the apartment. Heinrich testified that he accompanied Detective Jim Bryant to the back entrance to the apartment. They knocked on the door several times, announcing that they were police officers with a warrant for his arrest. When defendant refused to open the door, the detectives found a hammer and used it to break the door, which led to the kitchen. After defendant was placed under arrest, the detectives accompanied defendant to the bedroom so that he could get dressed. Heinrich stated that he believed that the door to the bedroom was open. He also testified that he thought that a gun was found while they were all in the bedroom, but he could not recall who found the gun.

In denying defendant’s motion the court commented that it believed Baraniak’s testimony, that defendant’s arrest was based on a warrant, that at the time the evidence was observed by the detectives the detectives were in a place they had a right to be, and that the arrest was not a pretext for a search of the apartment.

Our review of the trial court’s decision to deny defendant’s motion to suppress recognizes that its ruling will not be set aside unless clearly erroneous. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677; People v. Brink (1988), 174 Ill. App. 3d 804, 529 N.E.2d 1.) Defendant argues that the arrest was a subterfuge to gain access to the apartment for the dominate purpose of conducting a search for evidence. To prevail on a motion to suppress based on a subterfuge theory, defendant must prove that the motive of the police in arresting defendant at a particular place was to find evidence. (See 2 W. La-Fave, Search & Seizure §6.7(d) at 728 (2d ed. 1987).) In support of this argument, defendant points to the delay from the time the arrest warrant was issued on September 5 to defendant’s subsequent arrest on September 20 and to the fact that the detectives admitted having seen defendant on several occasions during that period of time and yet never attempted to arrest defendant. The trial court considered this argument and determined that the arrest was not a pretext to gain access to the apartment to conduct a search.

After a review of the record, we cannot say that the trial court’s determination was manifestly erroneous. The circumstances of the delay and the failure to arrest defendant during any of the numerous times that the detectives saw defendant were sufficiently explained at the suppression hearing by the testimony of Baraniak and Heinrich. Baraniak testified that although he saw defendant on approximately 10 occasions from September 17 to September 20, on each occasion defendant was sighted in a moving vehicle and lost in traffic during attempts to follow defendant’s vehicle. He also stated that they made several attempts to arrest defendant at his last known address, but that they were never able to find him there. Moreover, we note that prior to going to the apartment, the detectives staked out defendant’s car for several hours. This conduct does not support defendant’s subterfuge theory. It would seem that the detectives’ intent was to arrest defendant when he returned to his car. Also, it is not clear that the detectives knew exactly what apartment defendant was in when they staked out his car. Testimony on this matter is contradictory. Baraniak testified that when they drove to 1334 N. Kildare they had been informed only that defendant’s car was at that location. He indicated that it was not until several hours after their arrival that the detectives learned from a child on the street that defendant’s father lived in an apartment at that address. Heinrich testified that the unidentified person who called the detectives on the morning of the arrest to inform them of the location of defendant’s car also told them that defendant’s sister and father had an apartment at 1334 N. Kildare. In any event, the detectives’ conduct supports a finding that when they went to 1334 N. Kildare they did so for the purpose of watching defendant and with the intent of arresting defendant at his car when he returned to it.

Moreover, Baraniak testified that they attempted to arrest defendant at his last known address, but were unable to locate him there. Further, the testimony of Baraniak and Heinrich, though contradictory concerning when they learned of the location of defendant’s father’s apartment, was consistent to the extent that at the time they went to 1334 N. Kildare they did not know that defendant had been staying at that location. Therefore, they would have no expectation that if they arrested defendant at that apartment, they would find evidence of the crime.

For these reasons we reject defendant’s argument that his arrest was a pretext for an illegal search of the apartment. Further, not only is the legality of the seizure sustained as being pursuant to a legal arrest, but it was also proper under the plain view doctrine. A police officer may lawfully seize an item in plain view without a warrant if he views the object from a place where he has a right to be and if the facts and circumstances known to him at the time he acts give rise to a reasonable belief that the item seized constitutes evidence of criminal activity. (People v. Singer (1987), 156 Ill. App. 3d 470, 474-75, 509 N.E.2d 758; People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) Under the plain view doctrine, evidence seized by officers in the absence of a warrant is nevertheless admissible if three conditions are met. “First, police must be properly on the premises through a warrant or an exception to the warrant requirement. Second, the police must discover the evidence inadvertently, not knowing in advance the location of the evidence. Finally, it must be immediately apparent that the items observed may be evidence of a crime, contraband, or otherwise subject to seizure.” (People v. Brink, 174 Ill. App. 3d at 808, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) In addition, probable cause to search the area must exist in order to invoke the plain view doctrine. (Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149; People v. Brink, 174 Ill. App. 3d 804, 529 N.E.2d 1.) Probable cause for a search exists where the circumstances are such that “ ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” People v. Brink, 174 Ill. App. 3d at 810, quoting Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.

Applying these principles to the instant case, we find that the circumstances support a conclusion that the seizure was a proper application of the plain view doctrine. First, the detectives were properly on the premises pursuant to a valid arrest warrant. Second, the detectives discovered the evidence inadvertently. While Baraniak’s testimony at trial differed somewhat from his testimony at the suppression hearing, either explanation of the circumstances concerning the manner in which he first discovered the evidence indicates that his discovery was inadvertent. Third, it was immediately apparent that the duffel bag that the detectives saw in the bedroom met the description given by the victim of the duffel bag taken in the burglary. Finally, for this same reason, we conclude that the detectives had probable cause to believe that the items they saw in the bedroom were the items that had been taken during the burglary.

On the basis of the record before us, we conclude that the arrest of defendant was not a pretext to conduct a search of the apartment and that the warrantless seizure of the evidence was proper pursuant to the plain view doctrine. Therefore, the trial court’s denial of the motion to suppress was not manifestly erroneous.

Next, defendant contends that the State’s remarks during closing argument were so prejudicial as to deny him a fair trial. Specifically, defendant objects to two portions of the State’s remarks that were made in rebuttal to defense counsel’s closing remarks. Those comments are set out below:

“MR. QUIRK [Assistant State’s Attorney]: But look at what defendant says. Now you have got to realize that he was arrested about a year ago, back in September of ’85, this is September of ’86. He has had a whole year to think about this. Now, you figure, you know, you have the car linked up with him, caught with the proceeds, confesses. The picture doesn’t look too bright, so he has a long time to think about what he is going to do, what he is going to tell you. Well, you obviously know now, deny, deny, deny.”

Defendant also objects to the following comment:

“MR. QUIRK [Assistant State’s Attorney]: And that is what it comes down to ladies and gentlemen, he is lying to you, he has had a long time to think about it, he covered the bases, but it is not the truth.
Ladies and gentlemen, the evidence is overwhelming, and if you want to believe for one minute the Defendant, the convicted felon, just think to yourselves, if that wasn’t his stuff in the room, if he wasn’t living there, if he just happened to move in the night before, don’t you think his father, his mother, his sister, his brother, the other people that live there, his friends, would have come in there, and told you that, that he had just moved in the night before?
MR. WERKSMAN [defense attorney]: Judge, the Defendant doesn’t have to put on any evidence.
THE COURT: That is correct, the jury is instructed to disregard that line of argument.”

In order to consider whether or not these comments prejudiced defendant, it is necessary to review the evidence presented at trial. James Schmidt testified that in August 1985 he was living at 6201 N. Kilpatrick. He went out of town on August 13, and upon his return the following evening, he found that his house had been burglarized and various items were missing, including a green Eddie Bauer duffel bag and several pieces of silverware. The next morning he called the police. His sister, Heidi Schmidt, identified the silverware and the duffel bag that were taken from the home.

Jerome Malón, a Chicago police officer, testified that he lived near the Schmidt residence. On August 14, 1985, he was installing a fan in a bedroom window when he noticed a man park a black Pontiac across the street from his house. He watched as defendant exited the vehicle and walked towards 6201 N. Kilpatrick. He saw defendant walk across the lawn and toward the north end of the home, where he entered the gate to the backyard. Approximately 10 minutes later, Malón observed defendant walking toward his vehicle carrying a green bag in his hand. As defendant was driving away, Malón wrote down the license plate number of the car. Unfortunately, it was the wrong plate number that he gave to the investigating officers the next day. However, he did give them a description of defendant and his vehicle.

On August 30, 1985, Officer Malón observed defendant in the same vehicle near the officer’s home. Officer Malón approached defendant, who was sitting in his car, announced to him that he was a police officer, and tried to apprehend defendant but defendant fled from the scene in his vehicle. However, he was able to write down the correct license plate number and later gave it to the investigating officers. Officer Malón later identified defendant in a photo display as the man he saw on both occasions near his home.

Detective Baraniak testified that he was assigned to investigate the burglary which occurred at 6201 North Kilpatrick. The day after the burglary, he spoke with the victim, James Schmidt, and with Officer Malón, who gave him the license plate number of defendant’s vehicle. Baraniak was able to ascertain that the vehicle belonged to defendant, whose address was listed as 3134 North Kimball. On September 5, the officer brought a photo display to Officer Malon’s house from which Malón identified defendant.

In addition to the testimony that Baraniak gave at the suppression hearing, he testified at trial that the reason the officers were watching the car in the 1300 block of North Kildare was in anticipation that defendant would go to his vehicle and could then be placed under arrest. At the time of defendant’s arrest, he was standing in the kitchen near an open door that led to a bedroom. While defendant was being placed under arrest, Baraniak looked through the door and saw a green Eddie Bauer duffel bag on the floor in the bedroom. The officer immediately noticed that the bag fit the description of property which had been taken in the burglary on Kilpatrick Street.

During defendant’s processing at the police station, defendant told the officers that he resided at 1334 North Kildare, which was the apartment where the arrest was made. Defendant also admitted that he was at 6201 North Kilpatrick on August 14, 1985. He said he had taken the green Eddie Bauer duffel bag and silverware from the home.

Defendant testified at trial that he did not burglarize the home at 6201 North Kilpatrick. He stated that he could not remember where he was on August 14, 1985, but that he resided with his mother at 4448 West Cortez. Defendant testified that he was at his father’s house on North Kildare the day of the arrest because he fought with his mother the previous day. Defendant further stated that he never saw a green Eddie Bauer duffel bag or silverware in the bedroom of the apartment and defendant denied ever seeing Officer Jerome Malón prior to his arrest. He stated that he did not drive his car to the vicinity of 6201 North Kilpatrick on August 14 or on August 30, 1985. Defendant finally said that he occasionally loaned his car to his brother. However, on cross-examination defendant was not sure if his brother was using his car on the day of the burglary.

Before closing arguments were heard, the court explained to the jury that closing arguments were not evidence and that the jury should not consider anything said by counsel as evidence.

Initially, we note that defendant may have waived the issue of improper trial comments on appeal. The rule is well settled that the failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch, 122 Ill. 2d at 186.) In the instant case, although defendant objected to some of the comments that he now challenges on appeal, he did not raise this issue in his motion for a new trial. Such conduct constitutes a waiver of the right to raise this issue on appeal.

However, assuming arguendo that this issue was preserved for appeal, we are not persuaded that the comments constitute reversible error. Several principles guide our consideration of this issue. First, we recognize that the trial court’s determination of the propriety of the argument will generally be followed absent a clear abuse of discretion; and to constitute reversible error, the remarks must have substantially prejudiced defendant such that absent those remarks the verdict would have been different. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) Also, we review the State’s comments with the understanding that the State is allowed great latitude in making a closing argument. (People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970.) The verdict will not be disturbed on appeal where the challenged comments do not constitute a material factor in the conviction or where they are of such minor character that prejudice to defendant is not a probable result. People v. Neumann (1986), 148 Ill. App. 3d 362, 499 N.E.2d 487.

Applying these principles to the instant case, we first consider that portion of the State’s rebuttal argument that referred to defendant as a liar. It is useful to understand the context in which those comments were made. The statements were made after defense counsel’s closing argument which referred to the jury’s responsibility for determining the credibility of defendant. Defense counsel also referred to Baraniak's testimony regarding defendant’s alleged confession and suggested that Baraniak had “played with the truth.” This portion of defense counsel’s argument raised the issue of defendant’s credibility and implied that Baraniak had lied. A defendant cannot complain of statements made in rebuttal which were invited by the defendant’s own argument. (People v. Neumann, 148 Ill. App. 3d at 374.) Moreover, during trial the jury heard Baraniak’s testimony that defendant had confessed and the jury also heard defendant’s testimony that he had never made such a confession. Therefore, it was clearly evident to the jury, even before the State’s comment, that either Baraniak or defendant had not told the truth when testifying. Given this conflicting testimony, we may go so far as to determine that the State’s comments were fair comments on the testimony and reasonable inferences that could be drawn therefrom.

We also consider the extent of the evidence produced at trial establishing defendant’s guilt. First, there was eyewitness testimony by Officer Malón, who observed defendant park his car near the Schmidt residence, watched defendant walk toward the house and then saw defendant go through a gate in to the backyard. Malón testified that a few minutes later he saw defendant return to his car carrying a green bag in his hand. About two weeks later, Malón again saw defendant in the same area and driving the same car. At this time, Malón was able to determine the correct license plate number of the car. Baraniak later learned that the vehicle was registered to defendant. Moreover, the items that had been taken from the Schmidts’ house were found in the apartment at which defendant was arrested. In view of the overwhelming evidence of defendant’s guilt, we find that the State’s refer-enees to defendant as a liar did not constitute a material factor in defendant’s conviction and are not of such character as to prejudice defendant to the extent of denying his right to a fair trial.

Defendant also challenges the State’s rebuttal comment on defendant’s failure to produce his family or friends as witnesses. Immediately after this comment defense counsel objected and the court instructed the jury to disregard the statement. Also, prior to closing arguments the court instructed the jury that closing arguments were not evidence. Curative instructions such as these have been determined to cure prejudice. (People v. Neumann, 148 Ill. App. 3d 362.) Furthermore, as with the other comment challenged by defendant, given the considerable evidence of defendant’s guilt we cannot say that the comment constituted reversible error.

Finally, defendant contends that the trial court abused its discretion when it sentenced him to 12 years’ imprisonment. Defendant argues that we should reduce the sentence or vacate it and remand the cause for a new sentencing hearing. He claims that the court erred by considering improper factors and by failing to consider his rehabilitative potential, and the court used its sentencing power to penalize him for exercising his right to a jury trial. The standard of review of a sentence claimed to be excessive is whether the trial court abused its discretion, and absent such abuse, a sentence may not be altered on review. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Migliore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.) While the trial court is mandated by the Illinois Constitution to determine a penalty according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, §11), it is also true that because the trial court is in the best position to determine the proper punishment, its decision is accorded great weight and deference. People v. Migliore, 170 Ill. App. 3d 581, 524 N.E.2d 677; People v. Wallace (1988), 170 Ill. App. 3d 329, 524 N.E.2d 677.

Guided by these principles we now review that portion of the record pertaining to sentencing to determine the facts the trial court had before it when setting defendant’s sentence. The presentence investigation revealed that in June 1981 defendant was convicted of theft and sentenced to six months’ supervision and ordered to pay $60 in restitution. In October 1981, defendant was convicted of burglary and possession of stolen property and sentenced to 36 months’ probation. At the sentencing hearing the State asked the court to consider the following evidence presented at trial: (1) on the day of the burglary, defendant was seen fleeing the vicinity of the crime by a witness who was a Chicago police officer; (2) this police officer saw defendant in a car just two weeks later in the same vicinity and observed the license plate number of the car which subsequently was determined to be registered to defendant; and (3) at defendant’s arrest the items that were taken during the burglary were found in the apartment in which defendant was arrested. The State also referred to defendant’s criminal history that included a conviction for theft in June 1981, and a conviction for burglary the following October. In mitigation, defense counsel noted that defendant was 23 years of age, commented that the burglary was not a violent crime, and pointed out that defendant stayed out of trouble while on probation for the October 1981 burglary conviction.

In sentencing defendant to 12 years, the court considered the evidence presented at trial, the presentence investigation and the matters offered by the State in aggravation and by defense counsel in mitigation. Specifically, the court relied on the following considerations: (1) the evidence showed that defendant had the proceeds of the burglary in his apartment at the time of his arrest; (2) there was an independent identification of defendant by a neighbor of the victim, who was also a Chicago police officer; (3) defendant’s testimony was “blatant perjury”; (4) the professional manner in which defendant conducted the burglary, which was well planned; (5) defendant’s failure to respond to the authority of the police officers at the time of his arrest; and (6) defendant’s criminal history. The court also commented that a long period of incarceration was necessary to protect the public and that a short term of incarceration would be inconsistent with the ends of justice and would deprecate defendant’s criminal conduct.

In reviewing the trial court’s sentence, we note that, as a court of review, we cannot substitute our judgment merely because we might have balanced the sentencing factors differently. (People v. Wallace, 170 Ill. App. 3d 329, 524 N.E.2d 677.) Under the facts of this case, we find that the court properly weighed the relevant sentencing factors and did not abuse its discretion in sentencing defendant to 12 years’ imprisonment for residential burglary.

Judgment affirmed.

JOHNSON and McMORROW, JJ., concur.