text:
      In re A.D.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Lloyd Rankin, Respondent-Appellant).
    Fourth District
    No. 4—88—0407
    Opinion filed July 27, 1989.

      Diana Lenik, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Lloyd Rankin appeals from the order of the circuit court of Champaign County which found his minor daughter, A.D.R., neglected pursuant to section 2 — 3 of the Juvenile Court Act of 1987 (Act of 1987) (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3). The sole issue before this court is whether the trial court’s finding was against the manifest weight of the evidence. It was not.

On April 4, 1988, the State filed a two-count petition for wardship in the circuit court of Champaign County which alleged A.D.R., the only child of Lloyd and Rhonda Rankin, was a neglected and abused minor. Count I alleged neglect due to an environment injurious to the minor’s welfare when she resides with her mother and father. Count II alleged abuse due to a substantial risk of physical injury to the minor created by a parent, by other than accidental means, and the acts of the parent would be likely to cause impairment of the emotional health and/or impairment of the bodily functions of the minor.

A shelter care hearing was held on April 4 in the circuit court. The State called three witnesses, and Rhonda testified on her own behalf.

The first witness, Sergeant Susan Welch of the Urbana police department, testified she responded to a domestic disturbance call at the Rankin home on March 26, 1988. Sergeant Welch stated Rhonda had been beaten and bruised about the face. Rhonda told Sergeant Welch her boyfriend had been in the apartment and beaten her 15 minutes beforehand. Lloyd, however, told Sergeant Welch that Rhonda arrived at the residence 15 minutes beforehand and told Lloyd her boyfriend had beaten her.

The second witness, Sergeant Everett Krueger of the Urbana police department, testified he responded to a call at the Rankin home on March 31, 1988. When he arrived he found Rhonda lying on the floor in the apartment. He said he also saw the minor in the apartment, and she appeared to be in very good health. Rhonda was transported to Carle Hospital, where she gave conflicting accounts concerning her injuries. Lloyd told Sergeant Krueger an account which conflicted with Rhonda’s. Sergeant Krueger also stated he witnessed Lloyd strike Rhonda, apparently without provocation, while the couple walked along a street in the summer of 1987.

The third witness, Debra Tullis, supervisor in the division of child protection for the Illinois Department of Children and Family Services (DCFS), testified next. Tullis interviewed Rhonda on March 31, and Rhonda said she had not been beaten. Tullis also stated she interviewed Lloyd on March 31, and he told her Rhonda had been beaten by her boyfriend.

Rhonda testified on her own behalf, stating she was beaten by her boyfriend on March 26 and fell down in her home on March 31. At the conclusion of the hearing, the court found probable cause for the minor to be placed in temporary custody with DCFS.

An adjudicatory hearing was held on April 20, 1988. The first witness to testify was Dr. Jens Yambert. According to Dr. Yambert, Rhonda’s medical chart at Carle Hospital, where Dr. Yambert practices, showed that from April 1981 through April 1988 Rhonda made 62 emergency room visits. Dr. Yambert stated Rhonda’s explanations for her injuries, nine of which he treated in the emergency room from 1984 to 1988, were inconsistent with her injuries. Dr. Yambert believed Rhonda was the victim of multiple batterings. Dr. Yambert testified Rhonda was not suffering from any physical abnormalities that would have caused her injuries.

Patricia Metzler, a registered nurse at Carle Hospital, testified next. She stated she was working in the emergency room on March 31, 1988, when Rhonda was admitted. Metzler stated Rhonda said her girl friend had beaten her.

Diane Kouzmanoff, a neighbor of the Rankins, also testified. Kouzmanoff stated she heard strange noises coming from the Rankin apartment on March 26. She knocked on the door but received no answer, so she called the police. She also stated she heard strange noises coming from the Rankin apartment before March 26.

Sergeant Welch also testified. She stated she responded to a domestic disturbance call at the Rankin home on March 26, 1988. During that visit, Sergeant Welch received the two previously mentioned conflicting stories from Rhonda and Lloyd concerning Rhonda’s bruises. Rhonda also initially told Sergeant Welch that she was alone with the minor in the apartment; however, upon inspection of the premises, Sergeant Welch found Lloyd in the bathroom. Sergeant Welch told Rhonda she thought Lloyd had beaten her. Rhonda responded by indicating she had done something to deserve it, she had hit him before he hit her. Sergeant Welch also stated she could not locate Steve Anderson, Rhonda’s alleged boyfriend, or any information about him.

Sergeant Everett Krueger was the fifth witness to testify at the adjudicatory hearing. His testimony was similar to his testimony during the shelter care hearing.

The State’s final witness was Debra Tullís. Tullís stated she interviewed Rhonda on March 31. Rhonda told Tullís she fell in her home on March 31, and that on March 26 she went to the residence of her boyfriend where he beat her. Tullís also interviewed Lloyd on March 31. Rhonda was present during this interview. Lloyd stated that on March 26 Rhonda left home and when she returned she told Lloyd her boyfriend had beaten her. Lloyd also told Tullís that on March 31 he and Rhonda had been to a cookout, went home, fell asleep, and he awoke when he heard Rhonda experiencing breathing trouble. Tullís said Lloyd asked her repeatedly throughout the interview what would happen if he admitted he had a problem, and he had tears in his eyes as well. Tullís also stated she tried to locate Steve Anderson or any information about him, but was unsuccessful. Finally, Tullís stated she took custody of the minor. According to Tullís, the child appeared to be a healthy three-month-old baby.

At the conclusion of the evidence, the trial court found the minor was neglected and/or abused due to an environment injurious to her welfare when she resides with her parents. The court found for the parents as to count II of the State’s petition, which alleged the minor was abused due to a substantial risk of physical injury.

Prior to the dispositional hearing, a home and background report was prepared by DCFS. The report indicated the Rankin home was furnished adequately and was fairly neat and clean on two visits. The report also stated the minor was a happy baby. The report noted a problem of roaches in the Rankin home. Rhonda admitted there were years of physical abuse from Lloyd.

On May 25, 1988, the dispositional hearing was held. In its dispositional order, the court stated the minor was neglected and declared her a ward of the court. The court found the neglect was not the result of physical abuse of the minor inflicted by either parent. The court also found the mother is unable and the father is unfit for reasons other than financial to care for the minor. DCFS was appointed guardian with the power to place. Lloyd filed timely notice of appeal.

We initially note that cases concerning parental rights are sui generis. (In re Dalton (1981), 98 Ill. App. 3d 902, 909, 424 N.E.2d 1226, 1230.) In addition, parents’ rights and responsibilities are of deep human importance. (In re Paul (1984), 101 Ill. 2d 345, 351-52, 461 N.E.2d 983, 985.) Parental rights and responsibilities involve a fundamental liberty interest protected under the fourteenth amendment. (Santosky v. Kramer (1982), 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95.) The trial court’s finding of abuse or neglect will not be disturbed by a reviewing court unless contrary to the manifest weight of the evidence. In re T.H. (1986), 148 Ill. App. 3d 877, 882, 499 N.E.2d 988, 991; In re Custody of Brunken (1985), 139 Ill. App. 3d 232, 239, 487 N.E.2d 397, 401.

Count I of the State’s petition alleged neglect due to an environment injurious to the minor’s welfare. Section 2 — 3(2)(b) of the Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(2)(b)) states a minor whose environment is injurious to his or her welfare is an abused minor. In its adjudicatory order the trial court stated the minor was neglected and/or abused due to an environment injurious to her welfare when she resides with her parents. At the adjudicatory hearing the trial court stated it realized injurious environment is defined statutorily as abuse. The court stated a belief that the Juvenile Court Act previously designated injurious environment as neglect and believed confusion exists over legislative intent concerning injurious environment. Finally, the court stated: “I am clearly intending to find the environment is injurious to the welfare of this child, be that neglected or abused or both.” In its dispositional order the court found the minor to be neglected and stated the neglect was not the result of physical abuse, without mentioning injurious environment.

Prior cases which discussed neglect under the former statute when injurious environment was part of that concept generally agreed that neglect could not be defined with particularity, but rather each case must proceed on its own facts. (In re Christenberry (1979), 69 Ill. App. 3d 565, 567, 387 N.E.2d 923, 925.) Further, as our supreme court has elaborated, neglect “ ‘is not a term of fixed and measured meaning. It takes its content always from specific circumstances, and its meaning varies as the context of surrounding circumstances changes.’ ” In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820, 822, quoting People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 624,104N.E.2d769, 773.

Parental autonomy is not absolute. The State has a role as parens patriae, the ultimate protector of the rights of minors. The parents’ rights may be secondary to the State’s strong interest in protecting children where the potential for abuse or neglect exists, and the State may separate the parents from the child in such situations. (Lehman v. Stephens (1986), 148 Ill. App. 3d 538, 547, 499 N.E.2d 103, 109-10.) However, proceedings for adjudication of wardship represent a significant intrusion into the sanctity of the family which should not be undertaken lightly. In re Harpman (1985), 134 Ill. App. 3d 393, 396-97, 480 N.E.2d 873, 875.

The trial court, after receiving extensive evidence, determined the minor was neglected and/or abused due to an injurious environment. While A.D.R. was never physically abused, Rhonda was subjected to repeated physical abuse from Lloyd. The record reflects Rhonda made over 60 hospital emergency room visits from April 1981 to April 1988, the date of the adjudicatory hearing. The trial court noted some of the injuries Rhonda sustained may have been accidental; however, it did not believe all were accidental. Indeed, a witness saw Lloyd strike Rhonda. We find the abuse of Rhonda by Lloyd created an environment injurious to the minor’s welfare. In light of the deference given the trial court in these matters, we conclude its finding of abuse due to an injurious environment is not against the manifest weight of the evidence.

The respondent father urges us to follow the holdings of In re Harpman (1985), 134 Ill. App. 3d 393, 480 N.E.2d 873, In re Principal (1978), 65 Ill. App. 3d 706, 382 N.E.2d 662, and In re Baby Boy Butt (1979), 76 Ill. App. 3d 587, 395 N.E.2d 1. In Harpman, this court found the trial court’s authority to adjudge wardship on the basis of neglect is limited to minors who are actually neglected and does not extend to those who are thought to be subject to neglect in the future. (Harpman, 134 Ill. App. 3d at 397, 480 N.E.2d at 875.) This court construed section 2 — 4 of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 4), which has been recodified as section 2 — 3(1) of the Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3(1)). Harpman found the petition for wardship there failed to set forth sufficient facts to state a cause of action for neglect. On appeal after remand (In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242), this court found the State amended its petition to allege abuse, based on the father’s sexual abuse of his female children by a prior marriage. This changed the cause of action from one of neglect by reason of not providing proper care for the minors to one of abuse by reason of maintaining an environment injurious to the minors’ welfare. This court affirmed the trial court’s denial of the motion to dismiss and its finding that the parents’ three minors were abused by reason of an injurious environment.

In Principato, the court held the trial court’s finding of neglected minors was contrary to the manifest weight of the evidence. (Principato, 65 Ill. App. 3d 706, 382 N.E.2d 662.) Respondent father argues the instant case is very similar to Principato because in that case the parents had gone through a traumatic period in their marriage, the husband had been physically abusive to the wife and, in addition, there were allegations of drug abuse. Principato, however, can be distinguished from the instant case. The physical abuse by the husband toward the wife was only during the fall of 1976, and the parties were divorced by February 1977. In the instant case, the physical abuse by Lloyd against Rhonda continued for apparently at least seven years, and the parties remained married throughout those seven years. In addition, the children in Principato were cared for by their grandparents when their mother was not at home.

The final case respondent urges us to follow is Baby Boy Butt (76 Ill. App. 3d 587, 395 N.E.2d 1). In Baby Boy Butt, the court found the two minor children were not neglected even though the mother was found guilty of involuntary manslaughter for the death of a third child. The court also stated, however, that the details of the mother’s conviction could be considered to the extent the details were relevant to the issue of neglect.

Baby Boy Butt is easily distinguished from the instant case. The children in Baby Boy Butt were not neglected because the deceased child was the only child the mother had difficulty with, and the child was a stepdaughter of the mother while the other children were her natural children. Also, the mother claimed the problems between her and her stepdaughter were due to interference by the paternal grandmother and her husband, the stepdaughter’s natural father, who favored the stepdaughter over the other children. In addition, the mother had a warm and loving relationship with her natural children. In the instant case, the record does not indicate any special relationship between A.D.R. and either parent or any strained relationship between the abused mother and the abusive father. Indeed, the record reflects both the couple’s desire to remain married and the integrity of the marriage through seven years of apparent abuse by Lloyd.

The Baby Boy Butt court quoted In re Nyce (1971), 131 Ill. App. 2d 481, 487, 268 N.E.2d 233, 237, the finding which Harpman reiterated, that the scope of section 2 — 4 of the Act (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 4) was limited to minors who are actually neglected and it does not extend to those who are thought to be subject to neglect in the future. (Baby Boy Butt, 76 Ill. App. 3d at 593, 395 N.E.2d at 5.) This quote was also recited in In re Brooks (1978), 63 Ill. App. 3d 328, 338, 379 N.E.2d 872, 880. In Nyce, however, the mother was thought to be immature but never had custody of the child. In Brooks, the court stated the primary consideration in a child neglect case is the welfare of the child and “[w]hen faced with evidence of prior abuse by parents, the juvenile court should not be forced to refrain from taking action until each particular child suffers an injury,” and thus “[i]t was not unreasonable for the trial court to conclude that Yvette [the minor in issue] was subjected to an environment of physical abuse and that it was in Yvette’s best interests to adjudicate her a ward of the court.” (Brooks, 63 Ill. App. 3d at 339, 379 N.E.2d at 881.) The Brooks court also noted that section 4 — 8(2) of the version of that act applicable there (Ill. Rev. Stat. 1975, ch. 37, par. 704 — 8(2)) indicated physical abuse of a child may constitute neglect. (Brooks, 63 Ill. App. 3d at 337, 379 N.E.2d at 879.) We note section 2 — 21(2) of the Act of 1987 indicates physical abuse of a minor may constitute abuse, neglect, or dependency. (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 21(2).) In Brooks, there were three children. Two were abused but the third, Yvette, was not. All three children were natural children of the abusive mother, so she had complete responsibility for and control over them. The abusive father in the instant case also has some responsibility for and control over his abused wife and the minor child who was not physically abused. While Brooks involved abuse to one child as a basis for finding neglect as to another, this case involves physical abuse of a spouse. While the facts of Brooks are different, it is not unreasonable for a trial judge to conclude continuing physical abuse by one parent to another will cause emotional damage to a child and thus constitute neglect. Here, there were seven years of physical abuse by Lloyd of Rhonda. The court need not wait until A.D.R. herself becomes the victim of physical abuse nor wait until the repeated beatings of her mother cause so much emotional damage that A.D.R. is permanently affected.

After extensive review of the record, we conclude the minor was not receiving care necessary for her well-being and thus the evidence supports a finding of neglect under section 2 — 3(1) of the Act of 1987.

The trial court’s finding of neglect and abuse of the minor was not against the manifest weight of the evidence. Therefore, the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY THOMAS BRAY, Defendant-Appellant.
    Fourth District
    Nos. 4—88—0667, 4—88—0668 cons.
    Opinion filed July 27, 1989.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, Gwendolyn W. Klingler, and Neil Flynn, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Two causes have been consolidated on appeal as they involve the same defendant and the same issue. In both causes, defendant was serving a sentence of probation following a negotiated plea of guilty. The State filed petitions to revoke probation, and defendant admitted the allegations in the petitions. The circuit court of McLean County revoked defendant’s probation in each cause, and sentenced defendant to concurrent terms of five years’ imprisonment in the Department of Corrections. Defendant appeals.

The sole issue raised in this appeal is whether the five-year sentence was improper, as it violated the terms of defendant’s plea agreements. The pertinent facts follow.

The complaint in cause No. 84 — CF—18 was filed on January 24, 1984, and charged defendant with commission of a burglary. (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1.) Defendant negotiated a plea agreement in which he would plead guilty to the burglary charge and, in return, the State would nol-pros a pending charge of delivery of a controlled substance and other misdemeanor alcohol-related offenses. The agreement provided for a maximum sentence of three years’ imprisonment in the Department of Corrections. However, defendant was free to seek a lesser sentence.

At the hearing on the plea agreement, the court told defendant that the statutory penalty for burglary, a Class 2 felony, is three to seven years’ imprisonment. Thus, the agreement limited the court to imposing the minimum possible term of imprisonment should the court so decide. The court asked defendant if he would be requesting probation. Upon hearing defendant’s affirmative answer, the court gave the following explanation:

“THE COURT: Okay. If I were to sentence you to probation instead of sentencing you to the penitentiary, and you were to violate the terms of your probation and your probation got revoked, then you could be sent to the penitentiary. Not only could you be sent to the penitentiary for three years, you could be sent for all the way up to seven, because if you break the agreement by not — or if you break the rules and conditions as imposed upon you by the Court, then this plea agreement doesn’t mean anything after that point. Do you understand that?
DEFENDANT BRAY: Yes, sir.”

The court accepted defendant’s plea and, eventually, sentenced defendant to a term of 48 months’ probation, which included in its terms the payment of restitution. Also, defendant was ordered to serve six months of periodic imprisonment, but the mittimus was stayed on this portion of his sentence.

The first petition for revocation against defendant was filed on October 2, 1984, for failure to make restitution and failure to report to his probation officer. Defendant admitted to the allegations in this petition. The court continued defendant’s probation, but ordered defendant to serve 270 days’ straight time in the McLean County jail. One hundred eighty days represented the previously stayed sentence of periodic imprisonment, and the remaining 90 days were for contempt of court.

The next petition for revocation was filed on February 24, 1987, for driving while intoxicated and driving with a blood-alcohol concentration greater than 0.10. Later, in July 1987, a supplemental petition to revoke probation was filed as a result of the complaint being filed in cause No. 87 — CF—133. Cause No. 87 — CF—133 is the second cause in this consolidated appeal, and it consisted of an aggravated battery charge.

Defendant appeared in court with a negotiated plea agreement. Defendant agreed to plead guilty to aggravated battery in cause No. 87 — CF—133 and to admit to the allegations in the petition to revoke and the supplemental petition to revoke in cause No. 84 — CF—18. In return, the State agreed to nol-pros the pending alcohol-related offenses. The agreement again provided a maximum sentence of three years’ imprisonment in the Department of Corrections. Again, defendant was allowed to seek a lesser sentence. The plea agreement was accepted by the court. The court gave no special admonishments concerning probation in accepting defendant’s plea of guilty and his admissions to the allegations in the petitions to revoke. On October 9, 1987, defendant was sentenced to a term of 30 months’ intensive probation, with no credit for time served on the previous sentence of probation. In addition, defendant was ordered to serve six months of periodic imprisonment. This sentence was imposed in both causes and ordered to be served concurrently.

On January 5, 1988, a petition for revocation of probation was filed in each cause. The proceedings discussed below pertain to both causes for which defendant was serving probation. For convenience, we will discuss them as one. The petition alleged defendant had reported to the county jail from work release in an intoxicated state. At a hearing on April 4, 1988, defendant appeared and admitted to the allegation in the petition. Several times during this hearing, the parties noted that defendant was admitting the allegation without any return promise as to a sentence by the State. The court admonished defendant concerning the statutory range of sentences for burglary and aggravated battery. During the admonitions, the court stated:

“THE COURT: It’s been indicated there have been no promises or agreements as to any particular disposition on this petition to revoke in each of these cases, Mr. Bray; so that means the Court could impose any disposition authorized by law including revocation of your current sentence of probation and imposing the maximum amount of penitentiary imprisonment authorized by law for each offense. Do you understand that?
MR. BRAY: Yes, I understand that, Your Honor.”

The court accepted defendant’s admission to the allegation. The court specifically found that no agreement had been made as to a disposition for defendant. Prior to the sentencing hearing, a supplemental petition was filed alleging defendant had committed the following offenses: driving while intoxicated, driving while license revoked, disobeying a stop sign, and fleeing and attempting to elude a police officer. An adversary hearing was held on this petition, and the court found the allegations in the petition proved.

The dispositional hearing was held on August 8, 1988. The court revoked defendant’s probation and sentenced defendant to a term of five years’ imprisonment in the Department of Corrections. Defendant was not given credit for time served on probation, but he was given credit for time served in custody. This sentence was imposed in both causes, and the sentences were to be served concurrently.

Defendant argues the five-year term was improper because defendant had agreed to a maximum penitentiary sentence of three years in his most recent plea agreement. The plea agreement involved herein was an agreement covering both causes. In cause No. 87 — CF— 133, the aggravated battery charge, defendant agreed to plead guilty to the original offense. This he did at a hearing on August 25, 1987. The second part of the agreement was that defendant would admit to the allegations in a petition to revoke and a supplemental petition to revoke in cause No. 84 — CF—18. The State had agreed to a maximum term of imprisonment of three years, and the agreement stated that defendant was free to seek a lesser sentence. In fact, defendant did receive a lesser sentence. He was sentenced to concurrent terms of 30 months’ intensive probation, which included a 6-month term of periodic imprisonment. Defendant argues the three-year maximum sentence in the plea agreement was still binding on the court for any further sentence imposed as a result of a revocation of probation. We disagree.

Although the court accepted the plea agreement, the court admonished defendant of the statutory range of sentences for the offenses involved. The court was free to resentence defendant to any permissible sentence should he fail to abide by the terms of probation.

Defendant argues that under the facts of this case, he was led to believe any penitentiary sentence would be limited to three years. Therefore, defendant continues, it was unfair for him to receive a sentence higher than he expected. However, the record does not support defendant’s assertion. At defendant’s original guilty plea hearing in cause No. 84 — CF—18, the court clearly warned defendant that any violation of probation nullified the terms of the plea agreement. Further, at the hearing in which defendant admitted to the allegations in the petition to revoke filed January 5, 1988, the court clarified the fact that no promises had been made regarding a disposition. The court explained that it was free to impose the maximum amount of penitentiary imprisonment authorized by statute. Defendant acknowledged this was true. There is no indication in the record that defendant believed otherwise. We find the record supports the fact that defendant understood he was at risk of a longer term of imprisonment than just three years should he violate his probation. We hold the court did not abuse its discretion in sentencing defendant to concurrent five-year terms of imprisonment.

For the reasons stated above, the order of the circuit court of McLean County is affirmed.

Affirmed.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SWARTZ, Defendant-Appellant.
    Fourth District
    No. 4—88—0624
    Opinion filed July 27, 1989.
    Mark S. Morthland, Assistant Public Defender, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A Macon County jury convicted the defendant of one count of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(1)), and the court ordered that he be placed on supervision for a period of six months and pay a fine of $100, plus court costs. We reverse the conviction and remand for a new trial.

At the trial on June 22, 1988, the complainant, Constance Feger, testified that on January 23, 1988, she asked the defendant, Donald Swartz, to take her to the K mart in Decatur, Illinois. Defendant arrived at Feger’s house in Monticello around 8:30 p.m. Defendant appeared to have been drinking. When they arrived in Decatur, defendant began driving too fast and without his hands on the wheel, causing Feger to feel it was necessary for her to steer the vehicle. When defendant turned onto a dark side road saying it was too late to go to K mart, Feger attempted to exit the car. Defendant became verbally abusive and refused to stop the vehicle. In an attempt to escape, Feger turned off the car and removed the keys. Defendant then grabbed Feger by the hair and jerked her back into the car while demanding the keys. The scuffle ended when defendant obtained the keys and Feger exited the vehicle.

Officer James Stenger testified he answered a complaint from Feger that defendant had injured her neck when he jerked her head back by pulling on her hair. Feger reported some of her hair had been pulled out. The officer noticed red marks on Feger’s neck. When Stenger questioned defendant, he explained he drove Feger to Decatur from Monticello at her request so she could buy some medication at K mart. When the two arrived in Decatur, defendant advised Feger he needed gas. Since he thought K mart would be closed, he suggested she stay at his apartment overnight and get the medicine the next day. Feger began to scream and removed the keys from the ignition. Defendant admitted pulling her hair and grabbing her neck and leg in order to get the keys. He then kicked and pushed her out of the car. Defendant said he pulled out some of Feger’s hair in the struggle, but no hair was found in defendant’s vehicle.

After his motion for a directed verdict was denied, defendant testified he drove Feger to Decatur on January 23, 1988, because she wanted to go to K mart. Upon arriving in Decatur, defendant turned onto a side street, at which time Feger became agitated, grabbed the steering wheel and demanded to know why they were not headed toward their destination. Defendant elbowed her back to the passenger’s seat and explained that the car was out of gas and he did not have any money. When defendant stopped the car, Feger removed the keys from the ignition. A struggle ensued, during which Feger struck defendant in the nose, causing it to bleed, and defendant grabbed Feger by the hair. Defendant said he also suffered a cut to his stomach, which was caused by Feger when she grabbed the keys. Feger got out of the car as soon as defendant was able to wrench the keys from her hands.

Officer Stenger was resworn and testified he did not notice any injuries to defendant, nor did defendant complain of any pain when he was arrested in connection with the battery of Feger.

At the close of the trial testimony, the court instructed the jury on the elements of battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12— 3(a)(1).) Among others, the court refused the instruction tendered by defendant on the use of force in defense of property. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 3.) Defendant appeals, arguing the trial court failed to so instruct the jury.

The court gave, over the objection of defendant, Illinois Pattern Jury Instructions, Criminal, No. 11.06, at 209 (2d ed. 1981) (IPI Criminal 2d), which states in part:

“To sustain the charge of battery, the State must prove the following proposition:
That the defendant intentionally [and] without legal justification caused bodily harm to [Connie Feger].”

The defense of property instruction tendered by defendant and refused by the court was IPI Criminal 2d No. 24 — 25.08, at 556, which states:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to prevent another’s wrongful interference with personal property lawfully in his possession.”

The court gave the following reason for refusing the tendered instruction:

“Basically what you are saying is the same thing that they have, and rather than add all of these other little matters to further confuse the jury, I am going to go like this because they have to prove that the defendant intentionally, without legal justification caused bodily harm. And you can certainly argue that rather than get into these other matters. Why confuse them before they find this guy not guilty?”

It is an abuse of discretion for the trial court to refuse to instruct the jury as to the defendant’s theory of the case if it has some foundation in the evidence. (People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) Evidence, however slight, supporting an affirmative defense entitles the defendant to an instruction (People v. Khamis (1951), 411 Ill. 46, 103 N.E.2d 133; People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; People v. Creamer (1986), 143 Ill. App. 3d 64, 492 N.E.2d 923; People v. Graves (1985), 133 Ill. App. 3d 546, 479 N.E.2d 10), even if the evidence is conflicting and the defendant’s testimony is impeached. People v. Bryson (1980), 85 Ill. App. 3d 448, 406 N.E.2d 939.

Here, defendant’s theory of the case was that he was justified in using force because he had reason to believe Feger was wrongfully interfering with the lawful possession of his automobile. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 3.) Both parties testified defendant grabbed Feger by the hair after she took the keys from his car’s ignition and began to exit the vehicle. We find this evidence was sufficient to support defendant’s affirmative defense of justified use of force in defense of property. Accordingly, it was error for the trial court to refuse defendant’s tendered instruction, which explained defendant’s argument he was legally justified in using force to protect his personal property.

The judgment of the circuit court of Macon County is reversed and remanded.

Reversed and remanded.

SPITZ and GREEN, JJ., concur.


text:
    CHEMED CORPORATION, INC., Plaintiff-Appellee, v. THE STATE OF ILLINOIS, Department of Revenue, Defendant-Appellant.
    Fourth District
    No. 4—88—0528
    Opinion filed July 27, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Schain, Firsel & Burney, Ltd., of Chicago (Brian L. Wolfberg, Robert W. Fioretti, and Melissa J. Wilson, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff filed a complaint for administrative review in the circuit court of Sangamon County seeking reversal of an administrative decision of the Department of Revenue which denied plaintiff a refund of $115,223 in municipal retailers’ occupational tax (MROT) and $115,224 in regional transportation authority retailers’ occupational tax (RTA) for the period of January 1, 1982, to April 30, 1985. The trial court reversed the administrative decision and found sections 270.115(b)(3) and 320.115(b)(3) of the Illinois Administrative Code (Code) (86 Ill. Adm. Code §§270.115(b)(3), 320.115(b)(3) (1985)) are invalid because they are (1) outside the scope of the corresponding MROT and RTA acts and (2) unreasonable, arbitrary and capricious regulations. The court ordered defendant to issue plaintiff a tax refund in the amount of $230,447, plus interest. Defendant appeals and we reverse.

The following are stipulated facts: Plaintiff Chemed Corporation, Inc. (Chemed), is a Delaware Corporation authorized to do business in Illinois. Defendant Illinois Department of Revenue (Department) is an administrative body charged by law with the duty of administrating the Illinois Retailers’ Occupation Tax Act (ROT) (Ill. Rev. Stat. 1987, ch. 120, par. 441), the RTA in the Regional Transportation Authority Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 704.03(e)) and the MROT in the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—1).

During the period January 1, 1982, through April 30, 1985, Che-med engaged in business in Illinois through several unincorporated divisions, including DuBois Chemicals (DuBois), Vestal Laboratories, and Cambridge Scientific Industries. The receipts that are the basis of the tax assessed and which form the basis for this action were generated by DuBois sales only.

Through DuBois, Chemed manufactures and sells chemical cleaning compounds, coating compounds, specialty lubricants, water treatment chemicals, and floor care products. DuBois is engaged in retail and wholesale sales. Some of DuBois’ Illinois customers who use DuBois products are subject to use tax while others are exempt. DuBois operates through two subdivisions, DuBois Industrial Chemicals (Industrial) and DuBois Institutional Chemicals (Institutional). Both are headquartered in and have their principal place of business in Cincinnati, Ohio. Industrial offers approximately 600 products and Institutional offers approximately 150 products.

Industrial and Institutional conduct business in Illinois through approximately 70 sales representatives who live throughout the State of Illinois and make personal calls on DuBois’ Illinois customers. DuBois does not have a sales office in Illinois and its sales representatives are not provided office facilities within Illinois. The sales representatives are compensated on a commission basis and are responsible for paying all expenses incurred in the course of business.

An inventory of DuBois products was maintained during the audit period at a public warehouse, LaGrou Motor Service, Inc. (LaGrou), located in Chicago, Illinois. Other than offering warehousing services, LaGrou is in no way affiliated with Chemed. Chemed has no employees located at LaGrou. Chemed stocks approximately 250 different DuBois products (or only approximately one-third of the total number of DuBois products available) at the LaGrou warehouse. All products, the sale of which are at issue in this case, were manufactured outside Illinois, generally at the DuBois manufacturing facility in Sharonville, Ohio. The products were shipped by common carrier to LaGrou. Inventories at LaGrou were restocked an average of three times per week during the audit period.

Chemed markets its products in Illinois by one of four methods. First, direct sales are primarily generated in Illinois through the DuBois sales representatives who personally call on established and prospective customers. Orders are generally received verbally without the preparation of a formal purchase order. Sales representatives telephone the orders to Cincinnati, Ohio, for approval and processing. Prices for all products are set in Cincinnati, Ohio. Sales representatives have no authority to bind Chemed to any order. Once an order is accepted, delivery may come from inventories located at the LaGrou warehouse as well as out-of-State locations. Second, sales made to certain large customers are consummated through a bidding procedure whereby a DuBois employee located in Cincinnati, Ohio, prepares a bid based upon customer specifications. Once the bid is accepted, products are delivered to the customer from both the LaGrou warehouse or from other locations outside of Illinois. Third, sales proposals are sometimes submitted by DuBois to prospective customers. All proposals are prepared in Cincinnati for submission to prospective customers. Contracts are negotiated and accepted in Cincinnati, Ohio. Deliveries pursuant to this arrangement may come from the LaGrou warehouse as well as out-of-State locations. Finally, sales may be made via a national account. All national accounts are administered from Cincinnati, Ohio. The master contract is negotiated out of the DuBois office in Cincinnati, Ohio. Sales representatives receive implementing orders that must be forwarded to Cincinnati, Ohio, for approval. Products delivered pursuant to these contracts may come from both inventories located at the LaGrou warehouse as well as out-of-State locations.

After orders are accepted in Cincinnati, Ohio, Chemed’s computer system generates an invoice and a bill of lading. The customers remit payments of their outstanding account balances to a lockbox maintained at the Fifth-Third Bank located in Cincinnati, Ohio. Occasionally, a customer may tender payment to a sales representative who then forwards the payment to the Cincinnati headquarters or lockbox.

When a decision is made in Cincinnati to ship products located at the LaGrou warehouse, bills of lading prepared in Cincinnati, Ohio, are transmitted to LaGrou with instructions to deliver the ordered products to the Illinois customers. All decisions regarding the source of the products shipped by Chemed to Illinois customers are made in Cincinnati, Ohio, based on factors such as aggregate shipping costs, size of shipment, and availability of goods at various inventory locations. All orders of 10,000 pounds or more are shipped directly from DuBois’ manufacturing facility in Sharonville, Ohio, as are items not stocked at the LaGrou warehouse. Approximately 59% of DuBois’ Illinois sales were shipped from the LaGrou warehouse during the period of January 1, 1982, through April 30, 1985. Deliveries made from the LaGrou public warehouse constitute the basis for the claimed erroneous payments of MROT and RTA.

Chemed timely filed combined sales, use, occupation, and transit tax returns with the Department for the period January 1, 1982, through April 30, 1985, reported taxes payable on each return, and paid the taxes so reported. An audit was conducted by the Illinois Department of Revenue for the period of January 1, 1982, through December 31, 1984. As a result of such audit, the Department determined that additional RTA. and MROT were due. On or about May 30, 1985, Chemed filed an amended tax return reflecting the additional taxes and interest the Department declared due for the audit period. Thereafter, Chemed filed two claims for refund: (1) a claim for MROT in the amount of $138,908 and (2) a claim for RTA in the amount of $138,909. Both claims were based on Chemed’s sales where orders were accepted and approved at Chemed’s place of business in Cincinnati, Ohio, but filled with products located at the LaGrou warehouse in Chicago. Chemed’s claims were denied in part on October 25, 1985, via a final administrative decision of the Department of Revenue. Chemed was awarded only a partial refund and was held liable for $115,223 in MROT and $115,224 in RTA for the audit period.

On June 26, 1987, Chemed filed a complaint for administrative review in the circuit court of Sangamon County. The trial court reversed the administrative decision of the Department and held the administrative regulations (86 Ill. Adm. Code §§270.115, 320.115 (1985)) were unreasonable, arbitrary and capricious, and outside the scope of their respective governing acts. (Ill. Rev. Stat. 1987, ch. 24, par. 8— 11 — 6; 111. Rev. Stat. 1987, ch. 111⅔, par. 704.03(e).) The Department filed its notice of appeal on July 18,1988.

The claimed erroneous tax payments in this case were made by Chemed pursuant to the MROT and RTA acts. The MROT and RTA acts impose occupational taxes upon persons “engaged in the business of selling tangible personal property at retail in the municipality” (MROT) or “metropolitan region” (RTA). (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—1; Ill. Rev. Stat. 1987, ch. 111⅔, par. 704.03(e).) The Department regulations Which determine jurisdiction under the MROT and RTA acts are contained respectively in sections 270.115 and 320.115 of the Code. (86 Ill. Adm. Code §§270.115, 320.115 (1985).) Hereinafter, citations will be made only to the regulation governing the MROT (86 Ill. Adm. Code §270.115(b)(3)) since, for purposes of this appeal, the scope of that regulation is virtually identical to that of the RTA regulation (86 Ill. Adm. Code §320.115(b)(3)). Relevant portions of the MROT regulation pertaining to jurisdictional questions are reprinted as follows:

“a) Mere Solicitation of Orders Not Doing Business
1) For a seller to incur Municipal Retailers’ Occupation Tax liability in a given municipality, the sale must be made in the course of such seller’s engaging in the retail business within such municipality. In other words, enough of the selling activity must occur within the municipality to justify concluding tkat the seller is engaged in business within the municipality with respect to that sale. * * *
b) Seller’s Acceptance of Order
1) Without attempting to anticipate every kind of fact situation that may arise in this connection, it is the Department’s opinion, that the seller’s acceptance of the purchase order or other contracting action in the making of the sales contract is the most important single factor in the occupation of selling. * * *
3) Regardless of the place at which the purchase order is accepted, where tangible personal property is located within a municipality at the time of its sale (or is subsequently produced in Illinois), then delivered in Illinois to the purchaser, and no other municipality or county in this State would receive or would have the power to impose Municipal or County Retailers’ Occupation Tax with respect to such sale, the place where the property is located at the time of the sale (or subsequent production in Illinois) will determine where the seller is engaged in business for Municipal Retailers’ Occupation Tax purposes with respect to such sale.
c) Some Considerations Which Are Not Controlling
2) The point at which the tangible personal property will be used or consumed and the place at which the purchaser resides are also immaterial in determining whether or not the seller incurs Municipal Retailers’ Occupation Tax liability. Furthermore, the place at which the technical sale occurs (i.e., the place at which title passes) is not a decisive consideration since the phrase in the municipality in the Municipal Retailers’ Occupation Tax Act refers only to the location of the occupation of selling that is being taxed and not to the place where sales may be made.” (Emphasis added.) 86 Ill. Adm. Code §§270.115(a) through (c) (1985).

The Department denied Chemed’s claim for credit for taxes paid under the MROT and RTA acts. On review before an administrative law judge (ALJ), Chemed complained section 270.115(b)(3) is unconstitutional because it violates interstate commerce, goes beyond the scope of the governing statute, and is void for vagueness. In his recommendation, the ALJ indicated he found these arguments persuasive, but as an administrative body refused to determine the constitutionality of the law administered. (United States v. Kissinger (3d Cir. 1958), 250 F.2d 940.) Since no Illinois court had interpreted section 270.115(b)(3), the ALJ found that section controlled the application of MROT and RTA taxes.

In addition, the ALJ determined the majority of transactions at issue were so-called national accounts, and any activity which took place in Illinois was limited to warehousing. The ALJ found “that in accordance with Section 270.115(b)(3), the location of the designated goods in the city of Chicago is sufficient to support the imposition of the applicable [MROT] and [RTA].” The Department then issued a final order denying Chemed full reimbursement of the MROT and RTA paid. The trial court reversed the administrative decision and declared sections 270.115(b)(3) and 320.115(b)(3) invalid.

An administrative agency derives its power to act solely from the statute by which it was created. Agency action which exceeds its authority is void. (Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370.) However, an agency charged with enforcing a statute is given inherent authority and wide latitude to adopt regulations or policies reasonably necessary to perform the agency’s statutory duty. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 428, 519 N.E.2d 459, 463; Ill. Rev. Stat. 1987, ch. 120, par. 451.) Administrative regulations have the force of law and are construed under the same standards which govern the construction of statutes. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 387 N.E.2d 320, cert. denied (1979), 444 U.S. 844, 62 L. Ed. 2d 57, 100 S. Ct. 87.) A court should not set aside agency policy merely because that policy is deemed unwise or inappropriate. (Oak Liquors, Inc. v. Zagel (1980), 90 Ill. App. 3d 379, 413 N.E.2d 56.) The regulations which enable the agency to execute its duties enjoy a presumption of validity. Acker v. Department of Revenue (1983), 116 Ill. App. 3d 1080, 452 N.E.2d 798.

In Oak Liquors, the court recognized the general principle that “taxing statutes are to be strictly construed against the government and in favor of the taxpayer.” (Oak Liquors, 90 Ill. App. 3d at 381-82, 413 N.E.2d at 59.) Accordingly, the court reasoned that Department regulations enacted pursuant to a taxing statute cannot effectively broaden or limit the tax imposition authorized by the statute. (Oak Liquors, 90 Ill. App. 3d 379, 413 N.E.2d 56; Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153; Ex-Cell-O Corp. v. McKibbin (1943), 383 Ill. 316, 50 N.E.2d 505.) The power to make the assessment must essentially be found within the governing statute. Terrace Carpet Co., 46 Ill. App. 3d 84, 360 N.E.2d 153.

The ultimate question on appeal is whether it was error for the trial court to reverse the final administrative decision of the Department while declaring invalid sections 270.115(b)(3) and 320.115(b)(3) of the Department regulations. To answer this question, we must first determine whether the Department regulations governing taxation under the MROT and RTA acts, respectively, are within the scope of those acts. Both acts (like the State Retailers’ Occupation Tax Act (ROT)) impose a tax “upon all persons engaged in the business of selling tangible personal property at retail” either in the municipality or in the metropolitan region. (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—1; Ill. Rev. Stat. 1987, ch. 111⅔, par. 704.03(e).) In other words, a person’s local tax liability is determined by whether or not he is engaged in the business of retail selling.

The function of an appellate court when interpreting and construing statutes is to ascertain and give effect to the legislature’s intent in enacting the statute. (Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370.) The statutory language must be examined and the court must attempt to discern the statute’s objective and the problems it sought to remedy. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) A statutory term not specifically defined must be given its ordinary and popularly understood meaning, in light of the statute’s purpose. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 487 N.E.2d 937.) Moreover, the term must be given its full meaning, not the narrowest possible meaning. Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 519 N.E.2d 459.

None of the statutes which impose a tax on the operation of a business (MROT, RTA, or ROT) provide a definition of the term “engaged in the business of selling tangible personal property at retail” in Illinois. Similarly, the courts have not provided an exact definition, but have declared the mere solicitation of purchase orders by agents without the authority to bind the corporation does not constitute doing business within the State. Ex-Cell-O, 383 Ill. 316, 50 N.E.2d 505; Automatic Voting Machine Corp. v. Daley (1951), 409 Ill. 438, 100 N.E.2d 591.

In Ex-Cell-O, the plaintiff, a Michigan corporation, had its factory and place of business in Detroit. It never qualified to do business in Illinois as a foreign corporation and had no office, store, warehouse, or bank account in Illinois. It sold its products to Illinois consumers through three manufacturer’s representatives who solicited orders for Ex-Cell-O, but who did not have the authority to bind the corporation to those orders. The representatives paid their own expenses connected with the solicitation of company orders. Based on a lack of contacts with Illinois and the limited authority granted to the representatives, the supreme court ruled Ex-Cell-0 was not engaged in the business of selling tangible personal property at retail in Illinois. The supreme court deliberately avoided the declaration of a general definition of the term at issue when it stated:

“An occupation, the business of which is to sell tangible personal property at retail, is the composite of many activities extending from the preparation for, and the obtaining of, orders for goods to the final consummation of the sale by the passing of title and payment of the purchase price. It is obvious that such activities are as varied as the methods which men select to carry on retail business and it is therefore not possible to prescribe by definition which of the many activities must take place in Illinois to constitute it an occupation conducted in this State. Except for a general classification that might be made of the many retail occupations, it is necessary to determine each case according to the facts which reveal the method by which the business is conducted.” Ex-Cell-O, 383 Ill. at 321-22, 50 N.E.2d at 507.

Chemed argues the location of inventory or property in Illinois alone is insufficient to satisfy the “composite of many activities” test described by the Ex-Cello-O court. It is noteworthy the language in Ex-Cell-O highlights selling activities; nowhere does it indicate the location of inventory or property is a relevant activity.

In Automatic Voting Machine the contacts of the plaintiff corporation with Illinois were limited to promotional work, the delivery of bids, and the delivery of machines and services. Automatic Voting Machine Company was a Delaware corporation with its only office and factory in Jamestown, New York. All of its corporate records were kept in New York, as well as the billing department. The corporation had no office, warehouse, or other building in Illinois. The sales at issue were made by an agent in Illinois who promoted the product and subsequently supervised company employees in the installation and servicing of the machines. Again, the supreme court found these contacts to be insufficient to justify the application of the RTA.

The Department argues this case is distinguishable from the Ex-Cell-0 and Automatic Voting Machine cases because Chemed’s contacts with the municipality and metropolitan regions are not merely limited to the promotional activity of its sales representatives. For lack of a legislative or judicial definition, the Department has declared via its regulations that a vendor who maintains a substantial inventory in a municipality or metropolitan region, which is restocked regularly, and from which deliveries are made within Illinois, is doing business within the region and is thus liable for MROT and RTA taxes. The Department stresses the inventory must be located in the municipality or metropolitan region at the time of the sale and the property must be delivered to a purchaser within Illinois.

The Department argues its regulations are within the scope allowed by their statutes by comparing them to the following definition of the term “Retailer maintaining a place of business in this State,” contained in section 2 of the Use Tax Act (UTA):

“1. Having or maintaining within this State, directly or by a subsidiary, an office, distribution house, sales house, warehouse or other place of business, or any agent or other representative operating within this State under the authority of the retailer or its subsidiary, irrespective of whether such place of business or agent or other representative is located here permanently or temporarily, or whether such retailer or subsidiary is licensed to do business in this State;
2. Engaging in soliciting orders within this State from users by means of catalogues or other advertising, whether such orders are received or accepted within or without this State.” Ill. Rev. Stat. 1987, ch. 120, par. 439.2.

Chemed argues it is erroneous to argue the UTA is similar in scope to the regulations at issue because the acts which govern these regulations are themselves dissimilar. The ROT, MROT, and RTA all tax persons who are engaged in the occupation of retail selling. On the other hand, the UTA is levied on the purchaser for the privilege of using property purchased outside Illinois from a retailer. The purpose of the Illinois UTA is described as follows:

“It is aimed at protecting the retailers’ occupation tax base against being reduced by the out-of-state buying of tangible personal property by Illinois users from persons who do not engage in enough Illinois activity to be taxable under an occupation tax like the retailers’ occupation tax.” (Ice, The Retailers’ Occupation Tax Act and Related Tax Laws, U. Ill. L.F. 614, 617 (1961).)

To be liable for use tax under the UTA, an out-of-State retailer must have certain minimum contacts with Illinois. (Scripto, Inc. v. Carson (1960), 362 U.S. 207, 4 L. Ed. 2d 660, 80 S. Ct. 619.) By comparison, the occupational tax acts require a composite of many activities before local tax liability may be imposed. See Ex-Cell-O, 383 Ill. 316, 50 N.E.2d 505.

Chemed argues the UTA, although narrower, is more similar in scope to the local use tax acts known as the Municipal Use Tax Act (MUT) and the Regional Transportation Authority Municipal Use Tax (RTA-UT). (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—6; Ill. Rev. Stat. 1987, ch. 111⅔, par. 704.03(g).) Those subject to the local use tax acts “shall have the same rights, remedies, privileges, immunities, powers and duties, and be subject to the same conditions, restrictions, limitations, penalties” (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—6), “exclusions, exemptions and definitions of terms” (emphasis added) (Ill. Rev. Stat. 1987, ch. 1112/3, par. 704.03(g)), “as are prescribed in [section] 2 [of the UTA] (*** except the definition of ‘retailer maintaining a place of business in this State’).” (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 11—6.) The local use taxes are collected only from persons whose Illinois address for titling or registration purposes is given as being in a metropolitan region (RTA-UT), or municipality (MUT).

By failing to incorporate that particular UTA definition in the MUT and RTA-UT acts, Chemed argues the legislature indicated its intent to exempt out-of-State retailers with only minimum contacts with Illinois from the tax collection responsibility imposed by the UTA. Chemed maintains the Department regulations at issue are an attempt to tax out-of-State sellers under the guise of the MROT and RTA acts when the legislature expressly avoided such taxation under the MUT and RTA-UT acts. Chemed finds this is proof the Department regulations are beyond the scope of these acts because they equate a minimum contact activity (location of property in Illinois) with “engaging in the business of selling property at retail.”

In Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295, the supreme court discussed at length the weight to be given administrative construction.

“It is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. [Citations.] ***
A significant reason for this deference is that courts appreciate that agencies can make informed judgments upon the issues, based upon their experience and expertise. [Citations].
This court has recognized that while they are not binding on the court, ‘interpretations by administrative agencies express an informed source for ascertaining the legislative intent.’ Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 344-45 [,348 N.E.2d 161]; see Johnson v. Marshall Field & Co. (1974), 57 Ill. 2d 272, 278 [, 312 N.E.2d 271] (the interpretations of statutes by administrative bodies constitute an informed source for guidance to ascertain the legislature’s intention when it enacted the statute); P.H. Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 601 [, 25 N.E.2d 43] (a construction placed on a statute by a departmental agency is entitled to great weight, though the court still retains its authority to construe the statute to the contrary).” Illinois Consolidated Telephone Co., 95 Ill. 2d at 152-53, 447 N.E.2d at 300.

In order to carry out its statutory directives, the Department has, via its regulations, construed the ROT in conjunction with its local counterparts (MROT and RTA). These taxes were enacted to indirectly tax sales of tangible personal property by imposing a tax on the privilege of engaging in the retail business within Illinois. (Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 108 N.E.2d 8.) Although the UTA and its local counterparts complement the occupational taxes (Illinois Road Equipment Co. v. Department of Revenue (1965), 32 Ill. 2d 576, 207 N.E.2d 425), we find they are quite different in scope and thus are not readily comparable.

It is necessary to examine the Department regulations that' set guidelines as to what is and is not considered “engaged in the business of selling” for local occupational tax purposes. Section 270.115(a) indicates mere solicitation of orders does not constitute doing business. Enough of the selling activity must occur within the municipality before a tax may be levied. (86 Ill. Adm. Code §320.115(a) (1985).) While the regulations do not attempt to recognize every kind of situation which may arise, they declare the seller’s acceptance of the purchase or other contracting action is the most important single factor in the occupation of selling. (86 Ill. Adm. Code §270.115(b)(l) (1985).) Considerations which are not controlling include the point at which the property will be consumed, the place the purchaser resides, or the place at which the technical sale occurs, i.e., where title passes. The location of the occupation of selling is what is important, not the place where the sales are made. 86 Ill. Adm. Code §270.115(c)(2) (1985); Edward Don & Co. v. Zagel (1981), 95 Ill. App. 3d 589, 420 N.E.2d 501.

Section 270.115(b)(3) of the Code was added to the MROT regulations on October 19, 1979. (The RTA regulation, section 320.115(b)(3), was promulgated on July 1, 1980.) Prior to that time it was apparently the Department’s position that the municipality in which the retailer’s place of business was located, rather than the places where it solicited orders and delivered merchandise, was considered the place where he was engaged in the occupation of selling. Chemed contends this administrative practice was consistent and unchallenged from 1955 to 1979 and should not have been replaced by regulations that make the location and production of property the determinative factor. According to Chemed, the Department was without authority to amend the prior rule absent legislative action and when the scope of the command was not in question. American Oil Co. v. Mahin (1971), 49 Ill. 2d 199, 273 N.E.2d 818.

In American Oil, the Department had interpreted the ROT and UTA so as to exclude motor fuel tax from the base upon which the taxes were compiled. After 35 years, the Department issued a proposed amendment to its rules and required retailers to include the motor fuel tax in the base upon which the taxes were computed. The court held the Department did not have the authority to make the proposed revision because the rule had been applied continuously and uniformly for a substantial period of time, the legislature had reenacted or amended the statutes during the period of time without changing the particular wording and the rule was a reasonable and necessary exercise of discretion by the Department.

American Oil is distinguishable from this case. The amendments at issue here are not merely proposed, rather they have been in effect and have been left undisturbed by the legislature and courts for eight years. The acts have been amended several times since the regulations were adopted, yet the legislature has not amended them so as to clarify their scope.

Chemed argues the regulations (other than section 270.115(g) regulating coal sales) indicate the activities relating to entering the sales contract are the most important factors which constitute “engaged in the business of selling.” With the addition of section 270.115(b)(3) to the Code, liability under the local tax act can now be determined by only one factor, i.e., the place where the property is located at the time of the sale, not a “composite of many activities” (Ex-Cell-O, 383 Ill. 316, 50 N.E.2d 505) that better indicates where the occupation of selling is taking place. Chemed maintains section 270.115(b)(3) alters the focus of taxation. The emphasis is now on one factor — the location of property at the time of the sale — to the exclusion of all other elements which must be considered in determining where the occupation of selling takes place. According to Chemed, the regulation has changed the nature of the MROT from a tax on the business of selling, to a tax on the business of storage or production of property.

Chemed’s argument ignores the fact that the taxpayer, in addition to maintaining inventory or producing goods in the municipality, must also deliver them within Illinois. Section 270.115(b)(3) acts to tax out-of-State sellers who use the warehouse or manufacturing plant as a base of operation for selling within the State. During the audit period at issue, Chemed engaged in the business of retail selling in the municipality through DuBois. Some 250 of the 750 different types of products it manufactures were maintained in substantial numbers at a warehouse in Chicago and sold to Illinois customers for their use and consumption. By maintaining and replenishing this inventory on a regular basis and by delivering these goods within Illinois, the Department argues Chemed should be considered engaged in a retail occupation in Chicago sufficient to justify the application of the MROT and RTA. We agree.

We believe the regulations the Department has enacted are within the scope of their corresponding acts. The regulations recognize the business of retail selling can involve a variety of activities, and therefore they do not attempt to provide a complete list. Mere solicitation is not enough and the focus must be on the occupation of selling, not where the goods are to be consumed or where a title passes. The regulations put great emphasis on the place the purchase order is accepted, but overrides that factor as follows:

“Regardless of the place at which the purchase order is accepted, where tangible personal property is located within a municipality at the time of its sale (or is subsequently produced in Illinois), then delivered in Illinois to the purchaser, *** the place where the property is located at the time of the sale (or subsequent production in Illinois) will determine where the seller is engaged in business for [MROT] purposes with respect to such sale.” 86 Ill. Adm. Code §270.115(b)(3) (1985).

In adopting the language of section 270.115(bX3), the Department was asked the following question by the joint committee on administrative review:

“How are the out-of-state vendors engaged in the business of selling tangible personal property at retail in a particular county or municipality when they are neither located nor sell their products in that municipality or county and the only connection to that county or municipality is that the product happens to be located, stored, or produced in that county or municipality?”

The Department, as shown by a memorandum in the record, responded:

“[T]his rule will eliminate a competitive advantage enjoyed by out-of-state vendors who produce or warehouse their product in a municipality or county in Illinois but are immune from the municipal or county retailers’ occupation tax since they are neither located nor sell their products in the particular municipalities or counties. The Department believes that persons may be ‘engaged in the business of selling tangible personal property’ in a municipality or county, even though the order is taken at a location outside the state, when the goods are stored or produced in an Illinois county or municipality and subsequently delivered within Illinois. This would appear to be a reasonable interpretation of the statutory language. ” (Emphasis added.)

The Department has interpreted that the statute imposes tax liability on out-of-State sellers who hold goods within Illinois at the time of the sale and then deliver those goods within Illinois. It determined such activity is sufficient to bring a foreign corporation within its local taxing power, regardless of where the purchase order was accepted. This concept was discussed by the Supreme Court in Norton Co. v. Department of Revenue (1951), 340 U.S. 534, 95 L. Ed. 517, 71 S. Ct. 377. In that case, the petitioner, a Massachusetts corporation, operated a branch office and warehouse in Chicago from which it made local sales at retail which were subject to Illinois occupational tax. Petitioner also took orders through its Chicago office and forwarded them on to the home office in Worcester, Massachusetts. The Worcester office would then send goods to Illinois where the Chicago office would intervene and dispense the goods at a reduced freight charge. The court held the corporation liable for both the direct and indirect sales, but held it exempt from tax on orders sent directly to Worcester by the customer and shipped from Worcester directly to the buyer in Illinois. The Court held:

“Petitioner elected to localize itself in the Illinois market with the advantages of a-retail outlet in the State, to keep close to the trade, to supply locally many items and take orders for others, and to reduce freight costs to local consumers. Although the concern does not, by engaging in business within the State, lose its right to do interstate business with tax immunity, [citation] it cannot channel business through a local outlet to gain the advantage of a local business and also hold the immunities of an interstate business.” Norton, 340 U.S. at 538-39, 95 L. Ed. at 521, 71 S. Ct. at 381.

In this case, Chemed does not have a Chicago office per se, yet the LaGrou warehouse serves the same purpose. The facts indicate Chemed uses LaGrou as a base of operation for its Illinois sales, even though all orders are accepted in Ohio. It is apparent the Department foresaw such a fact scenario when it enacted the regulations at issue in this case. The regulations are well within the scope of the MROT and RTA acts and constitute a reasonably necessary and valid exercise of discretion by the Department as an administrative agency.

Next, we resolve whether the Department regulations at issue are unconstitutionally vague so that they violate the due process clauses of the United States and Illinois constitutions.

The trial court found the Department regulations were “unreasonable, arbitrary and capricious.” On appeal, Chemed maintains section 270.115(b)(3) of the Code is void for vagueness because its language conflicts with the language of sections 270.115(b)(1) and 270.115(c)(2), a discrepancy which makes it impossible for a person of common intellect to determine whether he is engaged in the business of retail selling within a municipality. See DeGrazio v. Civil Service Comm’n (1964), 31 Ill. 2d 482, 202 N.E.2d 522.

An act will not be construed as being void for vagueness if the rights and duties it imposes are prescribed in terms definite enough to serve as a guide to those who must comply with it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247; Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1970), 45 Ill. 2d 243, 258 N.E.2d 569.) Section 270.115(bXl) declares “the seller’s acceptance of the purchase order or other contracting action in the making of the sales contract is the most important single factor in the occupation of selling.” (86 Ill. Adm. Code §270.115(b)(l) (1985).) For liability to exist, acceptance must occur at the seller’s place of business within the municipality or by someone who is working out of such place of business. Section 270.115(b)(3) of the Code, however, disregards the place at which the purchase order is accepted and places the emphasis on the location of the goods at the time of the sale and their subsequent delivery in Illinois. Chemed maintains it is senseless to tax a business that accepts purchase orders outside the State of Illinois, merely because the goods purchased were located in Illinois at the time of the sale. The location or production of the goods, a less significant factor than where the purchase order is accepted, gives rise to a tax, even when the sale is otherwise unrelated to Illinois.

Again Chemed’s argument ignores the two-fold requirement of section 270.115(b)(3). Section 270.115(b)(1) lists the acceptance of the purchase order at the seller’s place of business as the single most important factor in determining whether a seller is engaged in the business of selling. However, section 270.115(b)(1) does not attempt “to anticipate every kind of fact situation that may arise in this connection.” (86 Ill. Adm. Code §270.115(b)(1) (1985).) Although the birthplace of the contract is an important factor in some cases, in others where the seller’s goods are located within the municipality or metropolitan region at the time of the sale and then delivered within the State of Illinois, the Department has determined the imposition of a local occupational tax is justified, regardless of where the purchase order is accepted. 86 Ill. Adm. Code §§270.115(a)(l), (b)(3) (1985).

Chemed also quarrels with the alleged conflicts between sections 270.115(c)(2) and 270.115(b)(3) of the regulation. Section 270.115(c)(2) states the place where a sale takes place is not an important consideration in determining whether the occupation of selling exists for purposes of MROT. Section 270.115(b)(3) provides that the place where the property is located at the time of the sale determines whether a seller is engaged in the business of selling for purposes of MROT with respect to such sale. The term “sale” is defined by the Uniform Commercial Code to be the transfer of title. (Ill. Rev. Stat. 1987, ch. 26, pars. 2 — 106, 2 — 401(2)(b).) Chemed contends that in most cases, the place where title passes is the place where the property is delivered and thus, for statutory purposes, is the place where the personal property is located at the time of the sale. Chemed finds it confusing that the place where the title passes can be a controlling factor in section 270.115(b)(3) at the same time it is insignificant in section 270.115(c)(2).

The Department justifiably finds fault with Chemed’s reasoning. Section 270.115(c)(2) declares that the place of delivery and the transfer of title is not a determinative factor because it is only the place of the “technical sale.” Under section 270.115(b)(3), the place where the business of selling takes place is where the property is located at the time of sale, or is subsequently produced. The place of delivery is not necessarily where the business of selling is taking place. In Metnick v. Department of Revenue (1963), 28 Ill. 2d 180, 190 N.E.2d 750, the court upheld the assessment of MROT on a seller who sold cars to non-Chicago residents and delivered them outside the city. The court found the seller was engaged in the business of selling within the municipality because all of the “necessary incidents to the sales transactions, the offer, the acceptance, the payment of money and the execution of the necessary documents, occurred inside the city of Chicago.” Metnick, 28 Ill. 2d at 183,190 N.E.2d at 751.

We cannot agree with the trial court’s characterization of the regulations at issue as unreasonable, arbitrary, and capricious when a commonsense reading of them clearly reveals the parameters of a seller’s liability for local occupational taxes. The void-for-vagueness doctrine is not appropriately applied to a legislative directive whose command is reasonably clear.

Finally, we dispense with Chemed’s argument the Department regulations at issue interfere with interstate commerce in violation of article I, section 8, of the United States Constitution. U.S. Const., art. I, §8.

Section 270.115(b)(3) of the Code provides that, regardless of where an order is accepted, if property is located within a municipality at the time of sale and “no other municipality or county in this State would receive or have the power to impose Municipal or County Retailers’ Occupational Tax with respect to such sale,” then that municipality may impose the MROT. (86 Ill. Adm. Code §270.115(b)(3) (1985).) Chemed argues the language quoted creates on its face an unconstitutional discrimination against out-of-State retailers. According to Chemed, the discrimination exists where an out-of-State retailer who accepts orders from outside Illinois will incur MROT and RTA for Chicago because it has inventory located there, while an Illinois retailer who accepts orders at a location in Springfield, for example, but warehouses inventory in Chicago, will not incur Chicago MROT or RTA. Citing Armco Inc. v. Hardesty (1984), 467 U.S. 638, 81 L. Ed. 2d 540, 104 S. Ct. 2620, Chemed argues this practice violates the rule that a municipality may not tax an out-of-State seller differently than an Illinois seller, even if the total tax paid in Illinois might be the same.

Chemed’s reasoning is flawed. The hypothetical Springfield retailer is not evading an occupational tax altogether. Rather, it is excluded from Chicago municipal tax because it is already liable for an occupational tax in Sangamon County. If Chemed engaged in the business of selling in Springfield, in addition to its warehousing and delivery functions in Chicago it, like the Springfield business, would not be liable for the Chicago tax. Likewise, if the Springfield retailer utilized a warehouse in Chicago only, but conducted all its business in Springfield, it would be taxed just as Chemed was taxed in this case. The regulations do not favor Illinois retailers in violation of interstate commerce.

Based upon its warehousing and subsequent sales and deliveries of substantial inventories in the City of Chicago and county of Cook, we conclude Chemed is “engaged in the business of retail selling” for MROT and RTA purposes with respect to such sales. The term “engaged in the business of retail selling” has not been defined by the legislature. We find the Department’s regulations governing the applicable statutes reasonably construe the term. The trial court erroneously exempted Chemed from MROT and RTA and unjustifiably declared the corresponding Department regulations void, unreasonable, arbitrary, and capricious.

We reverse the decision of the circuit court of Sangamon County. The final administrative decision of the Department is affirmed and reinstated, and Chemed is liable to the Department for MROT and RTA in the amount of $230,447, plus interest.

Circuit court reversed; administrative decision affirmed and reinstated.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STACY WHEELER, Defendant-Appellant.
    Fourth District
    No. 4—88—0556
    Opinion filed July 27, 1989.

      Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Pichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On March 18, 1988, a two-count indictment was filed in the circuit court of Macon County charging defendant Stacy Wheeler with the misdemeanor offenses of criminal damage to property of a value not to exceed $300 (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)) and disorderly conduct (Ill. Rev. Stat. 1987, ch. 38, par. 26 — 1(a)). After a jury trial in absentia, the court (1) directed a verdict finding defendant not guilty of the criminal damage to property charge, but (2) entered a judgment on a verdict finding him guilty of disorderly conduct. All occurred on June 28, 1988. On July 15, 1988, the court sentenced defendant to 28 days’ imprisonment.

On appeal defendant asserts the court erred (1) in trying him in absentia; (2) in overruling defense objection to direct examination of a prosecuting witness concerning a prior consistent statement; (3) in permitting prosecution argument concerning that statement; (4) in denying defendant’s attempt to cross-examine that witness in regard to charges pending against him; and (5) in refusing to instruct the jury not to consider defendant’s absence in reaching its verdict. As we later explain, we conclude we must reverse and remand for a new trial.

The evidence at trial showed that, on February 9, 1988, at approximately 7:30 p.m., a brick was thrown through a window in the Rex home in Decatur. The only substantial testimony connecting defendant to the throwing of the brick was that of Mark A. Rex, 17-year-old son of the principal occupant of the house. Mark testified to hearing the crash and, a few seconds later, looking out a window and seeing a black person he identified as Stacy Wheeler running down a nearby alley and entering an automobile containing three other black people. Mark stated defendant had been a former schoolmate of his. Paula Rex, Mark’s mother, corroborated Mark’s testimony to the extent she stated she looked out a window shortly after the crash of the brick and saw a black man she could not identify running down the alley.

We deem discussion of the propriety of the holding of the trial in absentia to be appropriate at the outset of our discussion of the case. Section 115 — 4.1(a) of the Code of Criminal Procedure of 1963 expressly permits, under certain conditions, the trial in absentia of persons charged with a ’’non-capital felony.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1(a).) In People v. Johnston (1987), 160 Ill. App. 3d 536, 513 N.E.2d 528, this court held those charged with a misdemeanor may also be tried while absent under somewhat similar circumstances. (See People v. Carroll (1982), 109 Ill. App. 3d 1041, 441 N.E.2d 888.) Pertinent here is the statutory requirement that the trial may proceed only “after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1(a).) The parties agree that provision is applicable here but dispute whether that proof was made.

When the instant case was called for trial, defense counsel objected to proceeding in the absence of his client. Defense counsel stated:

“[Defendant] called me this morning indicating to me that he was stranded in Springfield; that his ride to Decatur had not panned out, and by that I mean the person he expected to be able to bring him to Decatur this morning was not able to do so, and that he would — that he wanted to have his matter continued to another day, possibly tomorrow.”

The court noted recitations on defendant’s bond indicated he lived in Decatur, and no reason had been shown why the defendant was in Springfield on the day before trial.

Starting with People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152, and People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708, through Johnston, this court has held that, where a defendant has been properly advised of his requirement to appear, he will be presumed to be wilful in his failure to appear unless some evidence is presented of a lack of wilfulness. The question arises here as to whether the statement by defense counsel of a call from defendant stating he was unable to secure the ride he anticipated is some evidence of lack of wilfulness. Defendant maintains it is. The State agrees with the apparent reasoning of the trial court that the conduct of the defendant in being out of town the night before the trial and being dependent upon the uncertainties of a ride from another to be on time for trial is more of an indication of wilfulness rather than evidence of a lack of wilfulness.

We recognize the difficulties and delay the trial court would en- • counter in seeking further information about defendant’s situation before ruling on the request for a continuance. We also appreciate the suspicious nature of the excuse offered on behalf of the defendant and would agree that his conduct was at least negligent. However, in view of the rights of the defendant involved and the limits placed upon the power of courts to try an accused in his absence, we believe the circuit court here would have been well-advised to seek further information about defendant’s situation before proceeding to trial. As we determine that other factors require us to reverse and remand for a new trial, however, we need not decide whether proceeding to trial here was, in itself, error.

Prior to trial, the defense informed the State defendant would offer evidence of prior felony convictions of Mark A. Rex to impeach his testimony. During the State’s direct examination of Mark in the State’s case in chief, the State was permitted to introduce testimony from Mark that, shortly after the brick was thrown through the window, he gave police a statement describing (1) the individual he saw when he looked out the window after hearing the window break; and (2) the vehicle that individual entered. A defense objection on grounds of materiality was overruled. In closing argument the prosecutor, without objection, stated:

“Now, defense has hammered at Mark’s prior conviction, his prior conviction for felony forgery that he walked in and pled guilty to. *** He had a very accurate description of the person who threw this brick. He gave you that description as he testified immediately thereafter to the police. He also identified the vehicle that the defendant entered at the end of the alleyway to the police at that date, and he remembers it to this date. *** [H]e knows what he saw, and I think his observations are very accurate, and I’d ask you to bring back a verdict of guilty on that.”

Evidence of a prior statement of a witness consistent with that witness’ testimony at trial is admissible to bolster the testimony of that witness only if charges have been made that the testimony of the witness is of recent fabrication or that the witness has a motive to commit perjury, and the prior consistent statement was made before (1) the time of the fabrication; or (2) the existence of the motive to lie. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) Otherwise, the testimony is inadmissible. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41; People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) Here, no evidence was presented indicating Mark’s trial testimony was recently fabricated or that he had any greater motive to lie after the statement than before.

The State asserts the testimony of Mark’s prior statement was harmless because he did not testify as to what he told the police and, thus, did not establish any consistency between his statement and his testimony. This theory is inconsistent with the State’s closing argument in which the prosecutor told the jury that Mark had given the same description of the defendant and the vehicle the defendant entered to the police as he gave at trial. We must conclude the testimony concerning his statement constituted an improper bolstering of Mark’s testimony, and the reference to the statement in the State’s closing argument was improper.

The position of the defense in regard to Mark’s prior statement to the police is weakened because (1) the proper objection to the testimony was one of hearsay or improper bolstering of the witness rather than materiality; (2) no objection was made to the reference to that statement in the State’s closing argument; and (3) the defendant’s post-trial motion did not cite either as error. Ordinarily, error in the admission of evidence is waived if the objection to the evidence is not properly designated by the objector (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227), and error properly raised at trial is waived if not set forth in the post-trial motion of the defendant. (People v. Worth (1984), 126 Ill. App. 3d 817, 467 N.E.2d 614.) However, error usually waived can be sufficiently egregious to constitute plain error, which is not waived. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

In People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347, where a defendant was convicted of murder, improper admission of a prior consistent statement of a crucial prosecution witness was held to be plain error requiring a new trial even though the error had not been properly preserved. In People v. Emerson (1983), 97 Ill. 2d 487, 501, 455 N.E.2d 41, 47, where evidence of a prior consistent statement of a prosecution witness was improperly admitted, the supreme court stressed the prejudice of such an error when the guilt of the accused depended so largely upon the testimony of that prosecution witness. Here, proof of defendant’s guilt depended almost entirely on the testimony of Mark A. Rex. The evidence of his prior consistent statement, and the prosecutor’s comment upon it, constituted plain error.

Further error occurred because of limitation upon the cross-examination of Mark A. Rex by the defense. The court sustained an objection by the State to defense questioning of Mark concerning the fact a charge of burglary in the same court was pending against him at the time of trial. The court permitted questioning concerning the fact that Mark was subject to a pending charge but would not permit examination as to the nature of the charge. Bias or motive to testify falsely is always a relevant issue with which to discredit a witness. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Obviously, a defendant charged with burglary would have a greater motive to ingratiate himself upon the State by giving favorable testimony than would be the case of one charged with a lesser offense.

We recognize the discretion which the court possesses in limiting cross-examination for purposes of impeachment. In People v. Panus (1979), 76 Ill. 2d 263, 391 N.E.2d 376, involving testimony of a prosecution witness which was not absolutely necessary for conviction, the supreme court held no error occurred when the trial court prohibited the defense from questioning the witness as to the number of charges he had pending against him. The defense had secured information the witness had a charge pending, and the witness had testified he had been promised no leniency. Here, the testimony of Mark was absolutely essential, and the trial court refused inquiry as to the nature of a single charge. While any error in limiting cross-examination was not, of itself, reversible in nature, we hold the limitation on cross-examination was error.

We reject defendant’s final contention summarily. Defense counsel requested the court to instruct the jury that defendant’s absence not be considered by the jury in reaching its verdict. It refused the instruction. Defendant seeks to draw analogy to the requirement that the jury be instructed, if requested by the defendant, that the defendant’s failure to testify should not be held against him. (Carter v. Kentucky (1981), 450 U.S. 288, 67 L. Ed. 2d 241, 101 S. Ct. 1112; People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31.) Actually, prosecutorial comment upon the absence of the defendant as evidence of his consciousness of guilt has been upheld. (People v. Garza (1989), 180 Ill. App. 3d 820, 536 N.E.2d 253.) The defendant has a constitutional right not to testify. An accused has no right to be absent. The attempted analogy fails.

We interpret section 115 — 4.1 of the Code of Criminal Procedure of 1963, which provides for trials in absentia, to indicate some extra concern for the protection of an accused tried under those circumstances. Accordingly, we give some consideration to the fact the trial was held in absentia in determining whether the error which occurred requires a new trial. We conclude that both the plain error in admission of the prior consistent statement and comment thereon plus the slight error in the limitation of the cross-examination of Mark A. Rex require a new trial. As we have indicated, we attach considerable significance to the fact that proof of defendant’s guilt depended almost entirely upon Mark’s testimony.

The conviction and sentence of defendant are reversed and the cause is remanded to the circuit court of Macon County for a new trial.

Reversed and remanded.

McCULLOUGH, P.J., and LUND, J., concur.