text:
    GREG ELLEDGE et al., Plaintiffs-Appellants, v. RICHARD W. REICHERT, Indiv. and d/b/a R.W. Reichert Trucking, Defendant-Appellee.—GREG ELLEDGE et al., Plaintiffs-Appellees, v. RICHARD W. REICHERT, d/b/a R.W. Reichert Trucking, Defendant-Appellant.
    Fourth District
    Nos. 4 — 92—0799, 4 — 92—0848 cons.
    Argued May 19, 1993.
    Opinion filed September 9, 1993.

      Raymond J. Watson, Jr. (argued), of Springfield, and Charles W. Scholz, of Scholz, Staff & Palmer, of Quincy, for Greg Elledge, Ron Altheide, Gary Jones, George Adduci, Charles E. Dailing, and Barryl Schneider.
    Stanley E. Niew (argued), of Niew & Associates, P.C., of Hinsdale, and Barney S. Bier, of Bier & Bier, of Quincy, for Richard W. Reichert.
    Michael W. Duffee, of Katten, Muchin & Zavis, of Chicago, for amicus curiae.

   JUSTICE KNECHT

delivered the opinion of the court:

This appeal involves the interpretation and application of section 3 of the Prevailing Wage Act (Wage Act) (Ill. Rev. Stat. 1991, ch. 48, par. 39s — 3), which provides:

“Not less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed, and not less than the general prevailing rate of hourly wages for legal holiday and overtime work, shall be paid to all laborers, workers and mechanics employed by or on behalf of any public body engaged in the construction of public works. Only such laborers, workers and mechanics as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job, and laborers, workers and mechanics engaged in the transportation of materials and equipment to or from the site, but not including the transportation by the sellers and suppliers or the manufacture or processing of materials or equipment, in the execution of any contract or contracts for public works with any public body shall be deemed to be employed upon public works.” (Emphasis added.)

In 1990, the Department of Transportation awarded Sparks & Wiewel Construction Company (Sparks) a construction contract to build a portion of Route 408 near Quincy, Illinois. Sparks contracted with Adams Stone & Materials, Inc. (Adams), to supply dirt and stone to the project. Adams, in turn, entered into an oral agreement with defendant to transport the material to the project. Plaintiffs were hired as truck drivers by defendant to transport the material from the quarry to the project.

Plaintiffs would drive their trucks to the quarry, where Adams’ employees would load the trucks with dirt and rock. They then would haul the material to the construction site, where “spotters,” employees of Sparks, would direct them where to dump their loads. The material would be unloaded directly onto the construction site at the location where it was to be utilized. After unloading the material, bulldozers would spread and compact the dirt where it was unloaded. Plaintiffs would then return to the quarry for another load and repeat the process.

Based on their activities at the construction site, plaintiffs filed six separate actions (Sangamon County case Nos. 91 — LM—194 through 91 — LM—199) against defendant pursuant to section 11 of the Wage Act, seeking to recover back wages for defendant’s alleged failure to comply with the Wage Act and pay them prevailing wages. (Ill. Rev. Stat. 1991, ch. 48, par. 39s — 11.) These actions were consolidated, and the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of defendant and denied plaintiffs’ motion. The court found plaintiffs were excluded from the provisions of the Wage Act and were therefore not entitled to prevailing wages since they were employed by defendant, who was transporting materials for a supplier. The court further determined plaintiffs were not employed or engaged in construction by virtue of dumping materials onto the roadbed. Rather, they were engaged in the transportation of materials which were delivered onto the jobsite for incorporation into the construction project.

Plaintiffs appeal the trial court’s ruling, arguing they were engaged in construction, rather than merely transporting materials to the construction project. In their brief, plaintiffs acknowledge if they did nothing more than deliver materials to the project, they would be exempt from the coverage of the Wage Act. However, by properly focusing on the activities they performed at the construction site, plaintiffs allege they did more than merely deliver materials because “their actions constituted an integral part of, and were functionally related to, the construction process,” thereby entitling them to prevailing wages.

Conversely, defendant and amicus curiae, Associated General Contractors of Illinois, contend the trial court correctly interpreted the Wage Act to exclude plaintiffs’ activities from its coverage. They argue plaintiffs merely delivered materials to the construction project and did not engage in any jobsite or construction work. They dispute plaintiffs’ allegation they “spread” dirt at the project and argue any “spreading” done by the truck drivers was incidental to the dumping process and not the type of spreading which is a part of the construction process. Any actual spreading done was performed by Sparks’ bulldozers, not defendant’s truck drivers. They further contend plaintiffs’ “functionally related” test should be rejected because it is incongruous with the express language of the Wage Act, and to accept plaintiffs’ argument would subject all suppliers to the provisions of the Wage Act because all supplies delivered are integral to the construction project, can be used immediately and, in the case of rock or dirt, involve some “spreading.” Since plaintiffs merely delivered materials to the construction site, defendant and amicus contend under the plain language of the Wage Act plaintiffs are excluded from its coverage.

The principal issue then before this court is whether by virtue of their activities at the construction site plaintiffs are entitled to prevailing wages under the Wage Act. This court addressed the identical issue in Sparks & Wiewel Construction Co. v. Martin (1993,), 250 Ill. App. 3d 955, 967-68. In Sparks, Richard Reichert, d/b/a R.W. Reichert Trucking (Reichert or defendant), the defendant in the present action, filed a complaint in the circuit court of Sangamon County (Sangamon County case No. 91 — MR—26) seeking declaratory and injunctive relief against the Director of the Department of Labor (Department) regarding the Department’s interpretation and enforcement of the Wage Act. Reichert specifically sought a determination truck drivers employed by him to haul material to the construction project, plaintiffs in the present case, were not entitled to prevailing wages under the Wage Act. The circuit court concluded Reichert was exempt from the provisions of the Wage Act, and the Director of the Department appealed that decision to this court. See Sparks, 250 Ill. App. 3d at 960.

Since the identical issue and facts are presented in the two cases, our decision in the present case is guided by our resolution of Sparks. There, we determined defendant’s truck drivers were not covered by the Wage Act. (See Sparks, 250 Ill. App. 3d at 966.) For the reasons we explained in Sparks, we conclude plaintiffs are not entitled to prevailing wages under the Wage Act and find the trial court’s entry of summary judgment in favor of defendant was appropriate.

Following the trial court’s entry of summary judgment, defendant filed a motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), seeking attorney fees. The trial court denied the motion. On appeal, defendant argues the trial court abused its discretion in denying his motion for sanctions. First, defendant maintains an independent review of the law demonstrates plaintiffs’ claims were not warranted by existing law because they were contrary to the clear language of the statute, nor was there a basis to argue for an extension or modification of existing law. Since the statute is clear, defendant contends it is “impermissible to knowingly advance a claim that flies in the face of the plain meaning of the statute.” Second, defendant argues the court applied a “good-faith” standard in ruling on the motion, contrary to the mandates of Rule 137. By reply brief, defendant alternatively argues the court’s failure to make any findings or state reasons for denying the motion, as he contends is required by Rule 137, requires reversal and remand with instructions directing the court to make such findings or state reasons therefor.

Rule 137 provides, in pertinent part, as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” (Emphasis added.) 134 Ill. 2d R. 137.

Rule 137 is penal in nature, and its provisions must be strictly construed. (North Shore Sign Co. v. Signature Design Group, Inc. (1992), 237 Ill. App. 3d 782, 790, 604 N.E.2d 1157, 1162; In re Marriage of Sykes (1992), 231 Ill. App. 3d 940, 946, 596 N.E.2d 1226, 1230; Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 365.) Its purpose, like that of its predecessor, section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611), is to prevent the filing of frivolous or false lawsuits without a legal or factual foundation (North Shore, 237 Ill. App. 3d at 790, 604 N.E.2d at 1162; Sykes, 231 Ill. App. 3d at 946, 596 N.E. 2d at 1230), not to penalize litigants and their attorneys simply because they were unsuccessful in the litigation. Sykes, 231 Ill. App. 3d at 946, 596 N.E.2d at 1230-31; Couri v. Korn (1990), 202 Ill. App. 3d 848, 857, 560 N.E.2d 379, 386.

The standard to be used in determining whether a violation has occurred is an objective standard of what was reasonable under the circumstances existing at the time of the filing. (Sykes, 231 Ill. App. 3d at 946, 596 N.E.2d at 1231; Lewy, 211 Ill. App. 3d at 334, 570 N.E.2d at 364-65; Couri, 202 Ill. App. 3d at 856, 560 N.E.2d at 385.) The decision whether to award fees rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Sykes, 231 Ill. App. 3d at 946, 596 N.E.2d at 1231; North Shore, 237 Ill. App. 3d at 790, 604 N.E.2d at 1163; Olsen v. Celano (1992), 234 Ill. App. 3d 1045, 1053, 600 N.E.2d 1257, 1262; see also Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 467, 551 N.E.2d 1319, 1323; In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78, 535 N.E.2d 876, 883.

Based on these principles, the trial court did not abuse its discretion in denying defendant’s motion for attorney fees. At the time the lawsuit was filed, no case law existed in Illinois interpreting the statute, and plaintiffs’ position they were covered under the Wage Act by virtue of dumping material on the construction site was consistent with and supported by the Department’s interpretation of the Wage Act, as well as an Attorney General’s opinion on point (see 1964 Ill. Att’y Gen. Op. 86). The present case was therefore one of first impression and reasonable inquiry into the law would have resulted in a finding there was a basis for plaintiffs’ interpretation of the Wage Act. Under the circumstances, the trial court’s refusal to impose sanctions was therefore appropriate. Moreover, we note the fact plaintiffs’ argument was ultimately unsuccessful does not warrant an award of attorney fees (see Olsen, 234 Ill. App. 3d at 1053, 600 N.E.2d at 1262; Couri, 202 Ill. App. 3d at 855, 560 N.E.2d at 386), nor was it per se unreasonable to pursue the claim even though defendant had a strong defense (Sykes, 231 Ill. App. 3d at 949, 596 N.E.2d at 1232).

We also reject defendant’s argument the trial court applied a good-faith standard in deciding defendant’s motion. Defendant is correct a test of good faith does not comport with the affirmative obligation of Rule 137 to make a reasonable inquiry prior to the filing of the pleadings. (In re Marriage of Irvine (1991), 215 Ill. App. 3d 629, 638, 577 N.E.2d 462, 468.) Rather, as noted, the court must use an objective standard to determine whether a particular inquiry was reasonable based upon the circumstances that existed at the time the pleadings were filed. Irvine, 215 Ill. App. 3d at 638, 577 N.E.2d at 468.

Defendant argues because the trial court allegedly concluded plaintiffs’ lawsuits were frivolous, yet found lawsuits based upon the Department’s erroneous interpretation of the Wage Act were not sanctionable, it applied a good-faith standard. First, the trial court did not find the lawsuits were frivolous, but rather stated it could be argued the lawsuits were frivolous. In pronouncing its ruling at the hearing on the motion, the court did state “I think there is no basis for this Court to conclude [the issue in the present case was] not brought to bear *** in good faith.” While the court referenced the good faith of plaintiffs, this statement in context does not suggest the court applied the wrong standard. In defending against the motion for sanctions, plaintiffs contended their complaint argued for the extension, modification, or reversal of existing law. As Rule 137 states, this must be based on a “good-faith” argument. In noting that the lawsuit was brought in good faith, the court could have been referring to this aspect of Rule 137. Moreover, before making the above statement, the court also asserted sanctions were inappropriate because resolution of the issue was not “a clear-cut matter of decided law,” which indicates the court was applying an objective standard. Further, even had the court applied a good-faith standard, the error would be harmless as there is ample evidence to indicate under an objective standard plaintiffs’ complaints were reasonably based on the law as it existed at the time of the filing of the complaints.

As to whether the trial court erred in denying defendant’s motion for sanctions by failing to make any findings or state any reasons for denying it “as required,” we find defendant has waived this issue for purposes of appeal by first advancing it in his reply brief. Having failed to raise the issue in his initial brief, he cannot now raise it in his reply brief. See 134 Ill. 2d Rules 341(e)(7), (g); In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568, 524 N.E.2d 538, 544; Obenland v. Economy Fire & Casualty Co. (1992), 234 Ill. App. 3d 99, 113, 599 N.E.2d 999,1007.

Even if the issue were not waived, we find it meritless. Before imposing a sanction, the court is required to “set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (Emphasis added.) (134 Ill. 2d R. 137.) If sanctions are not imposed, as in the present case, providing reasons for the denial is not required.

Moreover, while the trial court did not specify reasons for denying defendant’s motion in its written order, the court stated its reasons for denying the motion at the conclusion of the hearing, and its judgment is reviewable based on the transcript of this hearing. As previously stated, we find the trial court did not abuse its discretion in denying the motion.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKLIN SCOTT MARCH, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0707
    Opinion filed September 2, 1993.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(l)) and sentenced to 14 years’ imprisonment, to run consecutively to a six-year sentence imposed on revocation of probation in another case. The instant charge alleged that defendant, who was over the age of 17, committed an act of sexual penetration with D.C., a child of approximately two years of age. On October 9, 1991, a hearing was held pursuant to section 115— 10(b)(l) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b)(l)) in order to determine admissibility of the victim’s out-of-court statements. The trial court ruled there were sufficient safeguards of reliability to admit the statements under the exception to the hearsay rule provided by section 115 — 10 of the Code. The defendant’s first trial ended in a hung jury. He was convicted by a jury on retrial. On appeal, defendant contends (1) the State faded to prove his guilt beyond a reasonable doubt, (2) the trial court erred in admitting evidence of the victim’s out-of-court statements because there were insufficient safeguards of reliability, and (3) at sentencing, the trial court improperly considered, as a factor in aggravation, his decision to not make a statement on his own behalf.

Defendant was 24 years of age at the time of trial and had been a friend of Julie Casey since the summer of 1990. During that summer, defendant stayed at Casey’s apartment a couple days each week, along with two other roommates. During this time, Casey’s daughter D.C. lived with Casey’s brother. In March 1991, someone tried to break into Casey’s apartment. Because Casey no longer felt safe living in that apartment, she accepted defendant’s offer to temporarily move to the small house he shared with a roommate, Jonathan Hulvey. Casey, who was pregnant with a second child, moved in with her two-year-old daughter on March 6, 1991, bringing along a seven-day supply of clothing for each of them, plus a few toys for the child. Sleeping arrangements varied from day to day. The house had only two bedrooms, so Casey and her daughter sometimes slept together on the sofa and other times in defendant’s bed. Defendant slept either on the sofa or together with Casey and her daughter in his bed. Defendant and Casey never engaged in sexual relations.

On April 22, 1991, Casey saw her daughter sitting on a chair with her legs spread out and her index finger in her vagina. She told her to stop it, warning her that she would hurt herself. D.C. replied, “Scott did it, Mommy.” Casey asked her what it was that Scott did, and D.C. replied, “Scott puts his finger there.”

Although defendant’s full name is Franklin Scott March, he is known by the name Scott. At the pretrial hearing, Casey testified that defendant was the only “Scott” D.C. had known. At trial, she stated that D.C. actually knew one other Scott, a playmate D.C. had not seen since the previous summer and who was known as “Scotty.” Later at trial, it was learned from another witness that D.C. had met someone named Scott Rhodes, but D.C. referred to him as “Darren.”

Casey became very upset when D.C. told her what Scott had done. She immediately called a crisis center, where she was advised to contact the family physician and the police. She then called a friend, Elizabeth Dmec, and asked that she come over as soon as possible. When Drnec arrived, Casey told D.C. to show Dmec what Scott had done to her. (According to Dmec, Casey merely told D.C. to show what she had showed Mommy.) D.C. responded by putting her finger in her vagina. Dmec then called some friends to drive them to the emergency room.

While they waited, Casey examined D.C.’s vaginal area and observed that it was red. D.C. said it was sore when she went to potty and took baths. Casey offered conflicting testimony regarding the time that the alleged sexual abuse occurred. At the pretrial hearing, she was asked on direct examination:

“Q. [By prosecutor:] Did [D.C.] ever say when this happened?
A. [By Casey:] No. She told me that night, and so I had thought it happened — [i]t had to have happened recently, when we were staying there.
* * *
Q. Okay. And was there any statement by [D.C.] regarding being put to bed?
A. Yeah, when I asked [D.C.] when it had happened I thought maybe she would say — I don’t know what I thought she would say. She just said, ‘When I was in bed sleeping.’ ”

At the hospital, D.C. had her vital signs taken and was then placed in an examination room, accompanied by her mother and Dmec. While D.C. was sitting on the treatment table, she began putting her finger back in her vagina. Her mother told her to stop doing it and reminded her she could hurt herself. According to Dmec, D.C. replied, “But Scott does it.” According to Casey, she only said, "Okay, Mom.”

The initial examination was performed by Nurse Yoder, who said that D.C. had complained to her mother about redness in her vaginal area. Yoder spoke with Casey and then questioned D.C. through her mother about “why she was hurt and whatever.” D.C. responded by pointing to her vaginal area and said, “Scott touches me down there when he is tired and goes to sleep.” Yoder took a medical history for the child and learned from Casey that she had a history of bedwetting in the last six weeks. (Casey and D.C. moved in with defendant six weeks and five days prior to this examination.) Yoder testified it was possible that the vaginal redness was caused by frequent wetting.

Dr. McEntyre examined D.C. and found redness in the genital area and also the absence of a hymen. Although it is possible D.C. was bom without a hymen, he testified it is about a 99% probability that she had one at birth. Dr. McEntyre found no signs of bleeding. He stated that it is common to have bleeding when a hymen is ruptured, but it does not always occur. If the hymen had been ruptured a few days before his examination, he would not have expected to see blood. Casey testified that she never saw blood on D.C. or on her diapers, but explained that she was never looking for it. Dr. McEntyre stated that a ruptured hymen could produce anywhere from a moderate amount of bleeding to barely noticeable bleeding.

Dr. McEntyre agreed with the prosecutor’s hypothetical scenario that D.C.’s missing hymen was consistent with someone placing his index finger in her vagina. On cross-examination, he acknowledged he had no idea how long the hymen had been gone, assuming it ever existed. He also stated it could, in rare cases, disintegrate on its own, without trauma. Finally, he agreed that the hymen could rupture if the child inserted her own finger or some other object such as a crayon.

D.C. was tested for a urinary tract infection to determine the cause of the vaginal redness. D.C. had been diagnosed in January with a urinary infection, which caused vaginal redness through February. The current test was negative. Tests for sexually transmitted diseases were also negative. Dr. McEntyre testified that redness in D.C.’s vaginal area could have had any number of causes.

After leaving the hospital, Casey and Drnec returned to defendant’s house and began to pack her belongings. Defendant came home and helped them load the car. Casey said nothing to defendant because she was afraid he might leave town if he knew what had happened. Drnec told defendant that she had an argument with her boyfriend and that Casey was going to move in with her for awhile. Defendant had no reaction to this information.

The next day, Casey, D.C., and Drnec met with Detective Michael Fazio of the Bloomington police department. Fazio is assigned to the youth division and has been investigating sexual offenses for over two years. First, he interviewed Casey alone, getting a brief summary of the case. He then had D.C. brought into the interview room and questioned her in the presence of her mother. Fazio had been trained to begin the interview with a question such as, “Do you know why you are here,” and to build off anything the child says. This usual line of questioning was not effective with D.C. Fazio explained this was probably due to her young age. The first question to which she responded was, “[T]ell me about Scott.” At the section 115 — 10 hearing, no mention is made of any opening remarks. The record states:

“Q. [Defense attorney:] Now when you began your conversation with [D.C.], did you preface your conversation to her by asking her what Scott did?
A. [Fazio:] In this case that was the only way to do it.
Q. So the answer is yes, you asked the child, ‘What did Scott do to you?’
A. Correct.”

D.C.’s response to this question was, “Scott touches my body.” After saying this, D.C. became withdrawn and would not respond to further questioning. In order to determine what D.C. meant by “my body,” he asked her if she knew what her private parts were. D.C. did not know. Fazio asked her mother what D.C. calls her private parts and was told she refers to them as her body. Fazio showed D.C. a drawing illustrating the front and back view of a naked preschool-age girl. He explained to D.C. that the drawing represented her. He then asked her to pick out a crayon and show him her “body.” She took the crayon and colored on the vaginal area, breasts, and buttocks. The drawings were put away and Fazio asked her more questions about Scott. D.C. did not respond until Fazio asked her again what Scott did. D.C. replied, “Scott owees my body and Scott owees my stomach.” The interview ended shortly after this statement. The following night, he took statements from Casey and Dmec.

On April 27, 1991, Fazio interviewed defendant. He read defendant his Miranda rights and explained the accusations against him. When he asked whether he had committed the act of placing his finger in D.C.’s vagina, defendant replied that he could not admit to his guilt. Fazio considered this an unusual reply and, when asked what he meant by it, defendant denied that he inappropriately touched D.C., saying, “I didn’t do it.” Fazio discussed the possible benefits of confessing, and defendant replied that he had no reason to confess — he was going to prison anyway. Fazio interviewed defendant again on May 2, 1991, and, after discussing why he should confess, defendant asked to leave in order to think about it. Fazio asked defendant to call him if wanted to talk and, a short time later, defendant called and set an appointment for the following day. Defendant came in on the evening of November 3, 1991, and, after discussing why he should confess, replied that he had no reason to confess. When asked why he could not confess, he replied he was worried about what his friends would think. (These two statements were the result of numerous responses to questioning in an interview lasting 15 to 30 minutes and should not be read as a single response or colloquy.) Fazio interviewed defendant again on July 1, 1991, and found him to be much more hostile, denying that he committed the crime and saying the burden of proof was on Fazio’s shoulders. Soon after, defendant was placed under arrest.

Defendant disputed Fazio’s account of the interviews. He testified that when Fazio asked him, “Why can’t you just admit your guilt,” he replied that he could not admit his guilt because he had done nothing wrong. When Fazio said he could help defendant, defendant replied there was no way Fazio could help him and, if he had done the offense, he would go to prison whether Fazio could help him or not. When asked about his statement that he was worried what people would think, he agreed that he had, in fact, made the statement. He explained he could not believe he was being questioned in a matter such as this and worried what his family would think. Defendant also disputes Fazio’s statement that defendant had voluntarily called him and set an appointment to be interviewed on May 3, 1991. Defendant contends that when he left the May 2, 1991, interview, Fazio ordered him to call him back after thinking about what they had said. He contends he only called because he was told to call.

Casey testified D.C. exhibited changes in her behavior about two weeks after moving in with defendant on March 6, 1991. The behavioral changes included severe temper tantrums (worse than those she was having before), nightmares, and wetting herself approximately three to four times per hour. She also began telling her mother that she hated her, something she never said before. Prior to the move, the child was more or less potty trained and would tell her mother when she needed to go to the bathroom.

During the time Casey shared the house with defendant, she was on medication that made her very sleepy. There were occasions when Casey would fall asleep on the sofa while D.C. was still awake. Sometimes she would fall asleep on the couch and then wake up to move to the bedroom. On some of these occasions, she would find D.C. asleep in bed with defendant.

Defendant disagreed with Casey’s recollection of their sleeping habits. He said he usually returned from work at about 10:30 p.m. or later and often found D.C. and her mother asleep on the sofa. He would awaken them and have them move to the bedroom because his roommate often brought friends over late at night. His purpose was merely to help each of them stay out of each other’s way. He denied he ever put D.C. in bed while her mother was sleeping. He also denies he ever shared a bed with D.C. while her mother slept on the sofa. Casey testified that D.C. was not able to go to bed by herself, but would need someone to lie down with her. Defendant pointed out that D.C. did not need just someone to lie down with her, but specifically needed her mother. He admitted that he had put D.C. to bed before, but only while her mother was awake and getting ready for bed herself. Casey denied this, saying when she was awake she would be the only person to put D.C. in bed.

The jury heard numerous accounts of D.C.’s dress and behavior while living in defendant’s house. During the day, D.C. would wear regular children’s underwear with an adult-sized T-shirt, but at night she wore diapers. Casey was the only one to change her diapers, but defendant would sometimes change her underwear dining the day.

Defendant’s roommate Hulvey testified that he often observed D.C. wearing only a grown-up’s T-shirt, with nothing underneath, especially after she had just gotten out of her bath. On four or five different occasions, he observed D.C. touching her vagina. He first noticed this behavior a couple of days after they moved in. He also testified that he never saw Scott sleeping alone with D.C. He did notice Casey asleep on the sofa on occasion, but D.C. was always with her. Hulvey stated that D.C. got along well with defendant, played with him, and displayed no sign that she feared him.

Keith Arteman, friend and co-worker of defendant, testified he helped Casey move into defendant’s home. He visited the house nearly every day and observed that more often than not D.C. was dressed in a T-shirt without underwear. He said she was often running around half naked and that on three or four occasions when she first moved in he saw her fondling herself. Another friend, Marilyn Lavoie, lived across the street and visited approximately three times a week. She testified that D.C. was unclothed from the waist down on more than half the occasions she visited. She also claims she observed D.C. fondling herself with a crayon. Casey testified that D.C. was never naked from the waist down in the presence of either Arteman or Lavoie. Furthermore, she contends D.C. could not have fondled herself with a crayon because she did not have any crayons at defendant’s house. Casey had seen D.C. put her hands in her underwear a number of times, but assumed she was merely exploring.

In his closing argument, defense counsel questioned how D.C. could wet herself three or four times per hour and, with only a seven-day supply of clothing on hand, could always manage to be dressed in underwear. Defense counsel also suggested that D.C.’s vaginal redness may have been the result of D.C.’s wetting herself three or four times per hour. Casey disagreed, saying she always kept her changed.

Finally, Casey testified that she overheard a conversation between Lavoie and Arteman outside the courtroom during the first trial. Lavoie allegedly told Arteman she would say anything to get Scott off. Arteman allegedly responded “I know. I will too.” Both LaVoie and Arteman denied this conversation ever took place.

On May 18, 1992, a hearing was held to determine the competency of D.C., now three years of age. She was unable to tell the color of her own hair, whether she lived in Bloomington or Normal, or the difference between the truth and a lie. She also testified she had been in the courtroom the previous evening. The prosecutor stated this could not be true, but she continued to state her mother had brought her there the previous evening. Over defense counsel’s objection, the trial judge found D.C. not competent to testify, noting she was incapable of perceiving time and space and had no recognition or appreciation of the obligation to testify truthfully.

Defendant contends the State failed to prove him guilty beyond a reasonable doubt. When faced with a challenge to the sufficiency of the evidence, the reviewing court is not required to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Rather, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374, 586 N.E.2d 1261, 1265-66.) A reviewing court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses, and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375, 586 N.E.2d at 1266.

Initially, defendant attacks the sufficiency of the physical evidence linking him to the crime. The only physical evidence that a crime occurred at all is the victim’s ruptured hymen and vaginal redness. No proof was offered that the child was born with a hymen, although it is highly unlikely that she was born without one. It is also possible that the hymen could have atrophied or disintegrated on its own. If she did have a hymen and it was ruptured, then it is also likely for bleeding to occur. No evidence of bleeding was found by either Casey or Dr. McEntyre. Casey explained that she had never looked for bleeding.

There is also no physical evidence that anyone, other than the child herself, inserted a finger in D.C.’s vagina. Dr. McEntyre testified that vaginal redness in conjunction with absence of a hymen is consistent with someone having placed a finger in the child’s vagina. However, he also testified that the hymen could have been ruptured by the child herself. Dr. McEntyre also testified that the vaginal redness could have been caused by any number of things. Casey admitted she had seen D.C. with her hands in her pants on a number of occasions, and numerous witnesses testified they saw her fondling herself. Moreover, the child was wetting herself three or four times an hour all day long, which may have contributed to the redness. In January 1991, prior to moving in with defendant, D.C. had vaginal redness caused by a urinary tract infection. However, Dr. McEntyre’s tests for a urinary tract infection on this occasion were negative.

Casey testified to the severe behavioral changes D.C. exhibited a few weeks after moving into defendant’s house. Yet, no evidence was offered to show that a two-year-old’s excessive wetting, temper tantrums, and nightmares are indicative of sexual abuse. No psychological, sociological, or other expert testimony was heard to establish the relevance of any of these behavioral characteristics.

Defense counsel, in his closing argument, suggested that Casey and her daughter lived a transient existence, which may have been responsible for her erratic behavior. Casey testified that she had lived apart from her daughter for five months during the previous year. D.C. lived with Casey’s brother during this time. Defense Counsel argued that forcing a two-year-old to suddenly move from her home is at least a plausible explanation for D.C.’s changes in behavior. Also significant is the testimony of defendant’s roommate that D.C. showed no indication that she was afraid of defendant. On the contrary, she apparently got along well with defendant and they seemed comfortable around each other.

Another major element of the State’s evidence was drawn from defendant’s remarks made to Fazio. Great effort was expended attempting to conjure a confession out of these interviews. The most significant feature of the remarks is that they appear most inculpatory when they are read as a continuous statement. However, as Fazio pointed out, these remarks were not made together but interspersed throughout the course of an intensive period of questioning. Fazio’s accounting of the interviews often seems to ignore defendant’s repeated assertions that he did not commit the crime. At one point Fazio was asked what defendant had said when asked to explain his remark that he could not admit to his guilt. Fazio responded, “Well, he evaded the question. All he would tell me is I didn’t do it, and he would never answer why he said that.” (Emphasis added.) Later, Fazio testified he could not recall if defendant had ever told him he did nothing wrong. It may be true that defendant did not use those exact words, but this begs the question in light of his testimony that defendant repeatedly denied committing the crime. Fazio’s account of these interviews implies that defendant was possibly on the verge of offering a confession. The fact remains that he did not confess, and Fazio’s account of these interviews, while perhaps offering some insight into the course of the investigation, yields little substance in the determination of defendant’s guilt.

Without expert testimony linking D.C.’s behavior to symptoms of sexual abuse, we are left with the testimony of Dr. McEntyre which, by itself, appears incapable of proving beyond a reasonable doubt that a sexual assault even occurred. The conviction, if it is to stand, must do so on the basis of the victim’s out-of-court statements. D.C. was heard to implicate someone named Scott by four people on four different occasions. It is surprising the record gives no indication that anyone ever asked D.C. to clarify the identity of the person named Scott. Even so, the fact that D.C. had met only two other people named Scott, both of them remote acquaintances, allows for a reasonable inference that she was speaking of the person with whom she not only lived but occasionally shared a bed.

According to medical records, D.C. was born on December 13, 1988, making her just over two years and four months old at the time Fazio interviewed her. The trial commenced on May 18, 1992, making D.C. three years and five months old at the time the court ruled her incompetent to testify. At the pretrial hearing, the clerk swore in the child and was forced to instruct D.C. that she should say “yes” in response. The trial judge was not even certain that D.C. responded to this request. D.C. admitted she did not know the difference between the truth and a lie and, as described earlier, claimed that she had been in the courtroom the night before with her mother, even though it was clear she had not.

The out-of-court statements, if accepted as true, present solid evidence of defendant’s guilt. Without the statements, the State has virtually no case against defendant. Accordingly, our determination of whether defendant was proved guilty beyond a reasonable doubt hinges upon the resolution of the next issue; namely, whether the trial court erred in ruling that the out-of-court statements were admissible under the exception to the hearsay rule provided under section 115— 10 of the Code.

Section 115 — 10(a)(2) of the Code provides that for any prosecution of a sexual offense committed on a child under age 13, testimony of the child’s out-of-court statements which describe any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense is admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(a)(2).) Admission of this testimony is subject to section 115 — 10(b), which requires:

“Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b).

Our courts have held that the legislature intended to include within the meaning of “unavailable witnesses” those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence. (People v. Rocha (1989), 191 Ill. App. 3d 529, 539, 547 N.E.2d 1335, 1341-42.) Incompetence to testify does not necessarily render the child’s out-of-court statements unreliable. The determination of such issues must be made on a case-by-case basis. Rocha, 191 Ill. App. 3d at 539, 547 N.E.2d at 1341.

The requirement that the court find that the “time, content, and circumstances” of the statement provide sufficient safeguards of reliability has been held to secure compliance with defendant’s sixth amendment right to be confronted with the witnesses against him. (U.S. Const., amend. VI; Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1343.) The Supreme Court noted that while the confrontation clause and hearsay rules are generally designed to protect similar values, their prohibitions may not be equated. The confrontation clause may act as a bar to the admission of evidence that might otherwise be admissible under an exception to the hearsay rule. (Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139.) Defendant has not argued a violation of the confrontation clause, but the issue is so intertwined with the admissibility of hearsay statements under section 115 — 10 of the Code that we cannot avoid addressing it.

An incriminating statement, admissible under an exception to the hearsay rule, fulfills the requirements of the confrontation clause only if it bears adequate indicia of reliability. (Wright, 497 U.S. at 814-15, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146.) Unlike the strictures of our section 115 — 10 statute, the confrontation clause does not require that a witness be unavailable. (White v. Illinois (1992), 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736, aff'g (1990), 198 Ill. App. 3d 641, 555 N.E.2d 1241.) The indicia of reliability standard can be met in two ways; where the evidence falls within a firmly rooted hearsay exception, or where the statement is supported by a showing of particularized guarantees of trustworthiness. (Ohio v. Roberts (1908), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.) The hearsay exception provided under section 115 — 10 is not a firmly rooted hearsay exception. People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010, appeal denied (1991), 136 Ill. 2d 547, 567 N.E.2d 335.

The particularized guarantees of trustworthiness must be shown from the totality of the circumstances, but the Supreme Court has limited this review to only those circumstances surrounding the making of the statement. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) The court explained that the circumstantial guarantees of trustworthiness which form the basis of the various exceptions to the hearsay rules are those that existed at the time the statement was made and do not include those that may be added in hindsight. (Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655, 110 S. Ct. at 3149.) Therefore, the rationale for gauging the truthfulness of the out-of-court statement is the same rationale as that underlying the firmly rooted exceptions to the hearsay rule, i.e.:

“[I]f the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial. ***
*** [Ujnless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Wright, 497 U.S. at 820-21, 111 L. Ed. 2d at 655-56,110 S. Ct. at 3149-50.

Medical evidence corroborating a child’s allegations of sexual abuse, therefore, may not be used to establish the trustworthiness of the out-of-court statements. The court recognized the danger that a jury will rely on partial corroboration to mistakenly infer the trustworthiness of the entire statement. (Wright, 497 U.S. at 824, 111 L. Ed. 2d at 658, 110 S. Ct. at 3151.) Accordingly, the hearsay evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.

The court declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness.” Instead, the court identified a number of relevant factors such as spontaneity, consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. These factors are not exclusive and courts have considerable leeway in their consideration of appropriate factors. (Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) The court rejected a rule that out-of-court statements made by a person found incompetent to testify at trial are per se unreliable. Although an inability to communicate to a jury might be relevant to whether the hearsay statements possessed particularized guarantees of trustworthiness, a per se rule would frustrate the truth-seeking purpose of the confrontation clause and hinder the States in their own “enlightened development” of the law of evidence. Wright, 497 U.S. at 825, 111 L. Ed. 2d at 658, 110 S. Ct. at 3151-52.

In the case at hand, defendant contends the circumstances surrounding D.C.’s out-of-court statements require a finding that there was no indicia of reliability. First, defendant argues Casey’s account of D.C.’s initial statement is inconsistent with Dmec’s testimony. Casey testified at the section 115 — 10 hearing that when Dmec arrived at the house she told D.C. to repeat to Dmec what had happened. D.C. responded by sticking her fingers in her vagina. Casey told D.C., “[D]on’t do it, okay?” She again asked D.C. who did it and D.C. responded, “Scott did it.” Drnec testified at the section 115 — 10 hearing that when she arrived at the house she found Casey very upset and hysterical. After D.C. demonstrated what she had showed her mother, Casey told her that D.C. had said that Scott did it. Dmec’s testimony differs from Casey’s in that she claims she never heard the child mention Scott’s name until later at the hospital. We find this minor discrepancy insufficient to call into doubt the trustworthiness of D.C.’s initial statements. The statements were made spontaneously and, unlike many of her subsequent statements, were not made in response to leading questions.

At the section 115 — 10 hearing, the trial judge noted that these statements could possibly be admitted under the spontaneous declaration exception to the hearsay rule. To fit this exception, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Roy (1990), 201 Ill. App. 3d 166, 180, 558 N.E.2d 1208, 1218; see also White, 198 Ill. App. 3d at 648-54, 555 N.E.2d at 1246-50.) In Roy, a child complained to his mother that his butt hurt and asked her to put medicine on it. His mother responded that she could not apply medicine until she knew what had happened to make it hurt. The child responded that his daddy pokes his fingers up his butt. Our court found this statement clearly related to the circumstances of the occurrence and that such an occurrence was sufficiently startling as to produce a spontaneous declaration.

Regarding the second factor, absence of time to fabricate, our court found the fact that the hearsay statement occurred a few days after the sexual act was not determinative. Instead, the court relied on a number of factors to determine that the victim’s statements were not fabricated. These factors included the following: (1) it is unlikely that a child of tender years would have any reason to fabricate stories of sexual abuse; (2) a child’s statements remain void of fabrication for a longer period of time because the child is apt to repress the incident; (3) it is unlikely the child will discuss such a stressful incident with anyone but the mother; and (4) the characteristics of young children work to produce declarations free of conscious fabrication for a longer period after the incidents than adults. Moreover, it is well established that merely asking the declarant what happened is insufficient to destroy the spontaneity of a response. Roy, 201 Ill. App. 3d at 181-82, 558 N.E.2d at 1219.

These factors, offered to show that a victim’s out-of-court statements fall into the spontaneous declaration exception to the hearsay rule, apply equally well to a determination of whether the requisite “particular guarantees of trustworthiness” exist so as to admit the statement under section 115 — 10 of the Code. We find D.C.’s initial statements to her mother admissible under either theory.

Similarly, D.C.’s statement to Yoder, while likely to be admissible under section 115 — 10 of the Code, is more appropriately admitted under section 115 — 13, which provides that in a prosecution for aggravated criminal sexual assault:

“[Statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.” Ill. Rev. Stat. 1991, ch. 38, par. 115 — 13.

At the hospital, Yoder was responsible for taking the child’s history. When she asked D.C. why she was there, the child responded by pointing to her vaginal area and saying that Scott touches her down there when he gets tired. Our court has held that in examining a child suspected to be a victim of sexual abuse, details of the sexual acts including how, when, and where the act occurred and who was involved are pertinent information allowed under the statute. (Roy, 201 Ill. App. 3d at 178, 558 N.E.2d at 1216.) Section 115 — 13 is a codification of the firmly rooted common-law exception to the hearsay rule allowing statements describing medical history, symptoms, pain, or sensations made for purposes of medical diagnosis or treatment. Statements admitted under a firmly rooted hearsay exception are considered so trustworthy that adversarial testing would add little to their reliability. Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149.

Next, we address Elizabeth Dmec’s testimony of the statements she overheard at the hospital. D.C. had apparently begun sticking her fingers in her vagina again and, after her mother told her to stop, D.C. replied, “But Scott does it.” Defendant argues that the statement is unreliable because it was made only after D.C. had witnessed her mother become extremely upset at home, prior to her arrival at the hospital. We disagree. The reliability of this statement is derived from its simplicity — it is nothing more than a repetition of her earlier statement to her mother at home. The Supreme Court identified spontaneity, consistent repetition, and lack of motive to fabricate as factors relevant to a determination of whether such statements bear a particularized guarantee of trustworthiness. Each of these factors is present in the hearsay statements overheard by Dmec.

This testimony, while clearly satisfying the requirements of the confrontation clause, also fulfills the provisions of section 115 — 10 of the Code, which requires that the time, content, and circumstances of the statements provide sufficient safeguards of reliability. The short time between her initial statements and those made at the hospital allow for less time to fabricate, the content was an exact repetition of her earlier statement, and the circumstances indicate the response was spontaneous. This consistent repetition also provides the corroborative evidence required under section 115 — 10(b)(2)(B) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b)(2)(B)). We find no error in the trial court’s admission of this testimony under section 115 — 10 of the Code.

Finally, we address the hearsay evidence offered by Detective Fazio. His interview with D.C. was not recorded or videotaped. While application of these tools may well have advanced the reliability of the out-of-court statements, the Supreme Court has explicitly refused to impose a fixed set of procedural prerequisites to the admission of such statements at trial. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 654, 110 S. Ct. at 3148.) Before the interview, Fazio spoke with Casey to get the basic information about D.C. Fazio then indicates that he prefaced his conversation with D.C. by asking, “What did Scott do to you?” At trial, Fazio contradicted this assertion, saying that he actually began the interview with other questions. Regardless, our inquiry is focused on the testimony offered at the 115 — 10 hearing, as it is upon this basis that the hearsay statements were admitted into evidence.

The Supreme Court decision in Wright dealt with a similar factual situation. In Wright, the Idaho Supreme Court found a doctor’s interview with a 2½-year-old child regarding suspected sexual abuse lacked the particularized guarantees of trustworthiness necessary to satisfy the requirements of the confrontation clause. The court complained that the interview was performed by someone with a preconceived idea of what the child should be disclosing, and the interviewer had used blatantly leading questions. The Supreme Court affirmed, noting that despite the spontaneous nature of the child’s responses, it is possible that if there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness. Wright, 497 U.S. at 826-27, 111 L. Ed. 2d at 659-60,110 S. Ct. at 3152.

In the case at hand, Fazio asked D.C. what Scott did to her and she replied, “He touches my body.” He then asked her to identify her private parts, but D.C. appeared confused and did not respond. He then asked her mother how she refers to her private parts and Casey replied that she calls her private parts “her body.” He produced an anatomical drawing of a preschool child and asked D.C. to indicate her “body” parts. D.C. responded by drawing with a crayon on the area of the vagina, breasts, and buttocks. She then stated, “Scott owees my body and Scott owees my stomach.” D.C. then became withdrawn and would not respond to further questioning.

An assessment of Fazio’s interview is made difficult primarily because of its brevity. We know for certain of only two questions that he asked: (1) what did Scott do to you; and (2) show me your body parts. No information is offered regarding the procedure followed in the interview and we have no indication of what questions or how many questions were left unanswered by the child. Fazio gave no indication he ever asked her to further identify “Scott,” nor do we know whether he asked her the time the incident occurred or at what place.

Our supreme court has held that careful consideration of the circumstances surrounding the victim’s statements is particularly important in cases such as this. The State, as the proponent of the out-of-court statements, has the burden of establishing that the statements were reliable and not the result of adult prompting or manipulation. (People v. Zwart (1992), 151 Ill. 2d 37, 45, 600 N.E.2d 1169, 1172.) Furthermore, a trial court should not presume from a silent record that suggestive techniques were not used. Zwart, 151 Ill. 2d at 45, 600 N.E.2d at 1172.

As noted earlier, hearsay statements are admissible under section 115 — 10(b)(l) of the Code only if the “time, content, and circumstances of the statement provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b)(l)-) However, we should not expect a perfect record in a situation where the victim is a two-year-old child. Given the inherent difficulties in conducting an interview of this nature, we should not expect consistent repetition and must make some allowance for the limited use of leading questions. Fazio was dealing with a very young child who could not be expected to consistently recite the abuse which allegedly took place. It is illogical to assume a child will sit down with a complete stranger, such as a police officer, and begin relating a bad experience. If a child did so perform, one might conclude he or she did so as a result of specific coaching. Furthermore, any investigation of sexual charges of this nature will require some specific questions. Despite Fazio’s leading question, he did not suggest what “Scott” had done and did not suggest “body parts,” other than displaying a drawing. The child was allowed to describe what “body” meant.

Questions regarding the admissibility of evidence lie within the discretion of the circuit court. A reviewing court may overturn a trial court’s determination only when the record clearly demonstrates that the court abused its discretion. (Zwart, 151 Ill. 2d at 44, 600 N.E.2d at 1172.) The Fazio evidence, while lacking procedural detail, sufficiently indicated D.C.’s encounter with a negative experience. Regardless of the limited nature of the Fazio encounter, we find sufficient evidence to sustain the determination of reliability of Fazio’s testimony. Accordingly, we find the evidence properly admitted under section 115 — 10 of the Code and in compliance with defendant’s rights under the confrontation clause. After viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Finally, defendant asserts he is entitled to a new sentencing hearing because the trial court improperly considered, as a factor in aggravation, his decision not to make a statement in regard to the sexual assault conviction. Our supreme court has held that a trial judge has the right to evaluate and consider a defendant’s lack of contrition and protestation of innocence in light of the relevant facts in the case. Absent an abuse of discretion, the trial court’s sentence should not be altered. (People v. Ward (1986), 113 Ill. 2d 516, 530-31, 499 N.E.2d 422, 428.) Nevertheless, a careful review of the sentencing hearing record gives no indication that defendant’s failure to make a statement in his behalf was even considered in the trial judge’s sentencing decision. The only factor in aggravation mentioned was that the sentence was necessary to deter others from committing the same crime. We find no abuse of the trial court’s sentencing discretion.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE COLWELL

text:
    FIRST ILLINOIS BANK OF WILMETTE, as Trustee, et al., Plaintiffs-Appellees, v. WALTER B. VALENTINE, Richmond Township Road Commissioner, Defendant-Appellant (May Development Company et al., Defendants).
    Second District
    No. 2 — 92—0816
    Opinion filed September 1, 1993.

      Michael C. Poper and Stephen M. Haugh, both of Michael C. Poper, P.C., of Crystal Lake, for appellant.
    Daniel A. Mengeling, of Johnson, Leahy & Mengeling, Ltd., of Woodstock, and Phyllis J. Perko, of Harlovic & Perko, of West Dundee, for appellees.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiffs, First Illinois Bank of Wilmette (First Illinois) and Nippersink Properties, Inc. (Nippersink), sued Richmond Township road commissioner Walter Valentine, May Development Company, and any unknown owners to quiet title to property that First Illinois alleged it owned as trustee of a land trust of which Nippersink is the sole beneficiary. The property in controversy is the unimproved part of a roadway within the Canterbury Heights subdivision of Richmond Township (the township). The issue at trial was whether this property, known as the Hillandale Road extension, was the subject of either a valid statutory dedication by May Development or a valid common-law dedication from Arnold May, the original owner of the land, to the township. The trial court held that (1) the attempted statutory dedication was invalid because May Development did not own the property that became the Hillandale Road extension when it made the formal plat of dedication; and (2) there was no common-law dedication because the township’s conduct between the filing of the plat and the present suit amounted to a failure to accept any dedication intended either by Arnold May, who owned the land at the time of the attempted statutory dedication, or by May Development, Arnold May’s successor.

On appeal, Valentine (defendant) argues that the court erred in holding that there was no common-law dedication of the Hillandale Road extension. Defendant maintains that the trial court’s finding that the township did not accept the dedication was against the manifest weight of the evidence. Defendant also argues that equitable doctrines required the trial court to find that the Hillandale Road extension is subject to a common-law dedication. We affirm the trial court.

Plaintiffs’ amended complaint, filed February 13, 1992, alleged the following. Pursuant to a land trust agreement dated July 20, 1988, First Illinois, as trustee for Nippersink, held fee simple title to land in the sixth addition of the Canterbury Heights development. Accompanying the complaint as an exhibit was a legal description of this property. Plaintiffs had taken active possession of the premises and had started to build a single-family residence thereon.

Plaintiffs alleged that defendant and the township unlawfully claimed the right to use part of the property, viz., the Hillandale Road extension, as a public road. This asserted right was based on a plat of dedication recorded with the county recorder of deeds on August 10, 1979, and rerecorded on October 22, 1979. The plat, attached to the complaint as an exhibit, is signed by defendant and by Robert May, president of May Development. Hillandale Road runs in an arc, starting out northwesterly from Hillshire Drive, which is along the west edge of the fourth addition of Canterbury Heights; Hillandale turns sharply until it proceeds in a south-southwesterly line along the western edge of the fourth addition. The curve creates a cul-de-sac, where plaintiffs have started their building.

According to the complaint, the statutory dedication attempted via the plat was fatally defective because May Development did not own the land it purportedly dedicated to the township. Also, for the 13 years between the recording of the plat and the start of the present suit, the subject “road” had remained a farm field; it had not been accepted, improved, or used by the public as a roadway. After this suit began, plaintiff improved 125 feet of Hillandale roadway pursuant to a court order. This road provided access to the residence.

Plaintiffs asserted that the recorded plat of dedication and defendants’ assertion of rights thereunder were a cloud on plaintiffs’ title to the property. They requested that any attempted dedication of the Hillandale Road extension be revoked so First Illinois would have clear title to the property.

Defendant’s answer admitted that the subject property had been a farm field for the last 13 years and that the intended roadway had not been improved before this litigation started. However, Valentine denied that the township had failed to accept the dedication of the Hillandale Road extension.

The case proceeded to a bench trial. Plaintiffs’ first witness was Fred Zahn, a land surveyor who, at Robert May’s request, prepared a map of the area in question. The map, which is part of the record on appeal, is based on a photographic enlargement of part of the “Sidwell,” or official plat, of the Canterbury Heights subdivision. A diagram on the map represents the new residence. At Robert May’s request, Zahn and his associates measured the part of the road that was asphalt pavement. This is marked on the diagram as “asphalt drive” and is part of the area described in the 1979 plat of dedication.

There is a broken line on the map running from the intersection of Hillandale Road with Hillshire Drive to just east of the curve in the road that creates the cul-de-sac that provided the site of the new residence. Zahn testified that when he visited the area in the autumn before the trial, the stretch of road represented by the dotted line was being used for a driveway even though the ground surface had not been paved. Other than as Zahn specified, Hillandale Road was neither paved nor being used as a road. Although mentioned in the plat of dedication, the “road” was primarily an open, grassy area with a few iron stakes that marked the northern and western limits of the lot with the May residence (and thus the southern boundary of the allegedly dedicated roadway). Zahn did not know when or by whom the stakes had been installed.

Roxanne Schutes, land trust administrator for Amcore Bank, which owned the property in issue from 1987 to 1989, testified that, at plaintiffs’ request, she examined three trust agreement files that originated with Amcore’s predecessor in interest. Only one trust agreement had been subject to a collateral assignment. Arnold May was the sole beneficial owner and sole owner of the power of direction of the corpus of each trust.

Plaintiffs next called Suzanne Ehardt, director of the McHenry County department of planning and zoning and acting zoning enforcement officer. Ehardt identified a number of exhibits, including six letters sent between February 1, 1988, and March 11, 1988. These letters went between Ehardt and the attorney for a party interested in purchasing the property now constituting the seventh addition to the Canterbury Heights development. The attorney requested cancellation of any plans to build the Hillandale Road extension. To Ehardt’s knowledge, nobody in her office notified the township highway commissioner of this correspondence; there was never any question that the dedication and the improvement of the extension would be prerequisites to the county’s final approval of a subdivision proposal for the seventh addition.

Ehardt stated that the planning and zoning department approved the original plat of dedication without requiring a title report about the property in issue. At the time that the plat of dedication was filed, the only requirements were that the person with the right to subdivide the property sign the owner’s certification and have it notarized.

Plaintiffs then called Richard Amundsen, a title underwriter for the Chicago Title Insurance Company, which, on March 31, 1989, issued a commitment for the property to the new owner, Amcore. In August 1989, at Amcore’s request, Amundsen conducted a title search of the land specifically within the arch of Hillandale Road (where the May residence was constructed). The title search revealed, inter alia, that in December 1967 Arnold May conveyed the property to First National Bank of Woodstock as land trustee, and that, in December 1987, after a series of intervening transactions, Amcore obtained title to the property through a sheriff’s foreclosure. Eventually, title passed to First Illinois as trustee; First Illinois held title at the time of the title search. Amundsen determined from examining the chain of title that, to a reasonable degree of certainty, neither May Development nor Robert May had ever been in the chain of title for the property at issue. Thus, in August 1989, Amundsen expressed concern that May Development did not own the property that it had purported to dedicate via the 1979 plat of dedication. Rather, the title search indicated that in both August and October 1979 First National Bank of Woodstock was the record owner of the property purportedly dedicated via the plat.

Plaintiffs called Walter Valentine as an adverse witness. Valentine had been township highway commissioner since 1978. Valentine stated that he found out only very recently that in 1988 the county waived the requirement that the purchasers of the seventh addition install and improve the Hillandale Road extension. Valentine himself never met or had contact with the prospective buyer.

Robert May testified that he resided at the “May Residence” depicted on Zahn’s map. In 1958, when Robert May was a child, May Development was incorporated by his father, Arnold May. Robert May did not become president of May Development until 1973, about five years after Arnold May had distributed May Development’s stock to Robert and Robert’s sisters. May Development develops and sells vacant residential lots.

Robert May was long familiar with the Canterbury Heights subdivision. Beginning late in the 1950s, Arnold May brought land into development for the subdivision by removing that land from his 1,000-acre farm. Generally, Arnold May held title to the property through a trust; he decided what property would be developed in what manner. Arnold May prepared the plat of subdivision for the fourth addition although Robert May as president of May Development signed the plat.

Robert May recounted how the sixth addition became part of the subdivision. Arnold May developed the property and sold it through a brokerage Robert May ran. May Development built no homes for sale on the addition. May Development did not sell all the lots in the sixth addition until sometime in 1990.

Arnold May also decided to develop what became the seventh addition. He transferred 55 acres on which he had resided to May Development, which issued him a note in return and developed the property. The development was still incomplete when the 55-acre “farm” was subject to a foreclosure. Late in 1987, Robert May found out that the farm was for sale. In 1988, Robert May signed a contract to purchase the farm. The actual purchase was made by First Illinois as trustee for Nippersink, the corporation that Robert May owned. Nippersink, not May personally, owned the “farm.” Robert May insisted as a condition of the purchase that the Hillandale Road extension be vacated.

At the time of the purchase, Robert May was under the impression that the extension was a valid township easement. He was aware that Amcore, through attorney Thomas Zanck, had requested that the supposed dedication be vacated. Although Zanck notified May that Amcore’s petition for vacation had been denied, Nippersink bought the property anyway. Neither May nor anyone else appealed Valentine’s decision to deny the petition for vacation. Robert May took possession of the “farm” in 1989 and, after securing a building permit in 1990, started building his residence on the property in May 1991. At the request of the building and zoning committee, May submitted a plat of survey that Zahn’s office had prepared. As was standard, the construction company at work on May’s residence applied for the permit. No land had been sold out of the farm since 1988.

Robert May acknowledged that he signed the plat of dedication that indicated incorrectly that May Development owned all of the land involved. At the time Robert May signed the plat, he intended that May Development dedicate the Hillandale Road extension to the township. Arnold May had handled the negotiations with Valentine, but Robert May was aware of the negotiations. He was informed at that time (1979) that Valentine insisted on the dedication as a condition of the approval of the plat for the seventh addition. It was only in June 1991 that May learned that May Development did not own part of Hillandale Road. As it turned out, there was a sliver of property that had remained in one of Arnold May’s trusts. Thus, in signing the original plat of dedication, Robert May had committed May Development to conveying property that May Development did not own.

After Zanck’s petition for vacation was denied, Robert May (working under the assumption that the township had a valid interest in the Hillandale Road extension) realized that possibly the township could put in a road along the extension. He did not believe that the road would ever go in. As of 1988, only about half of the seventh addition had been developed.

After starting the construction of the May residence, Robert May used part of the Hillandale Road extension so that he could get to his residence. In the 13 years between the filing of the plat of dedication and Robert May’s use of the roadway, the public never used the Hillandale Road extension. The land was being farmed, primarily in corn, and had also been used for a hunt club in the last two years. The alleged easement had become overgrown with prairie grass.

Charlan Crippen of the engineering firm of Vargas & Associates (Vargas) testified that in November 1987 a client of Vargas, Paul Ohadi, was interested in buying the seventh addition. On Ohadi’s behalf, Vargas officials attended a November 18, 1987, meeting of the plat review committee of the county board and asked for a waiver of the requirement that the purchaser of the seventh addition improve the Hillandale Road extension. The committee told Vargas to contact Valentine.

In two meetings in November 1987, Valentine informed Crippen and another official of Vargas that, although he did not think the road was necessary, he would have to check with the superintendent of schools and the fire chief, as transportation in and out of the subdivision was a potential concern for these officials. Eventually, Valentine told Vargas that the school superintendent wanted the road installed. Vargas did not wish to pay to improve a road that would serve primarily the fourth and sixth additions. Eventually, Ohadi lost interest, and Crippen never found out whether the road, which she assumed had been properly dedicated, was ever vacated.

Commissioner Valentine testified for defendants. He stated that in 1978 he was familiar with the proposed seventh addition to the Canterbury Heights subdivision. He and James Rakow, the county superintendent of highways, worked to make the Hillandale Road extension dedication part of the development. They were motivated by considerations of safety, as the presence of a cul-de-sac made it difficult for fire fighting equipment to move in and out of the area. After meetings at which Arnold May was present the county demanded that prerequisites to the development of the seventh addition would include the deposit of a road bond and the dedication of the Hillandale Road extension. Thus, after the subdivision was developed, the extension would be accepted into the township road system. Before the approval of the seventh addition, the township approved the layout and proposed construction of the roads in the development.

Valentine signed the plat of dedication at issue in July 1979. He testified that he would not have supported the development of the seventh addition without the agreement to dedicate the Hillandale Road extension. As best he could recall, there were no meetings or discussions with regard to the platted dedication between 1979 and 1988. In 1988, Vargas called Valentine about the Hillandale extension. Valentine called the fire department and the school district, both of which objected to the idea of vacation of the extension. According to Valentine’s testimony, he never told anyone from Vargas that he did not believe that the development of the extension was necessary. When Thomas Zanck advanced the petition to vacate the dedication, Valentine presided over a public hearing on the petition. The result of the hearing was that the petition to vacate was denied. No appeal was taken from this decision.

At trial, Valentine reiterated that he believed that the Hillandale Road extension was necessary to public safety. It would provide an outlet in case the only other road going into Hillandale Road became blocked, as had happened once three years before trial. The extension would serve more than the houses in the “arch” of the extension. It would make it possible for traffic to circulate rather than simply return the way it came. On cross-examination, Valentine admitted that there was only one way to enter any of the many cul-de-sacs in Canterbury Heights; in this respect, the safety problem was generic and not unique to the property in issue. Valentine stated that the problem was worse here than with other cul-de-sacs because the cul-de-sac here was relatively small. However, he did not know whether, as township road commissioner, he had the authority to require that the cul-de-sac be expanded to the size listed on the plat of subdivision for the fourth addition.

Valentine did not know whether the May residence was the only residence that would eventually be served by the road. Currently, the May residence was the only one built in the arch. According to Valentine, Arnold May had said once that there would be four other houses in the arch. Valentine could not say whether this would become the case.

On cross-examination, Valentine admitted that the part of the Hillandale Road extension that was in the sixth addition had not been constructed or developed at all. There was nothing there but grass or “growed-up brush” which the owners of the adjoining lots had not been mowing. After Valentine learned in 1987 that, without his knowledge, the county had waived the development of the extension, he assumed that whoever developed the land would improve the road. He did not believe the township would do so, mainly because the township’s budget and taxing abilities were limited. Concededly, this was a “discretionary decision” representing township priorities.

Although Valentine disapproved of the county’s waiver of the development requirement, he did not bring the matter to the attention of the county and only complained verbally to a county zoning enforcement officer who may or may not have had the final say in the matter. However, he found out about the waiver only after work on the seventh addition began. He never asked the township road district’s attorney whether he had any way to challenge the waiver.

On cross-examination, there occurred the following exchange between plaintiffs’ counsel and Valentine:

“Q. Did you ever accept any portion of the Hillandale Drive Road extension that’s shown on that Plat of Dedication, other than the acceptance you tried to make after this lawsuit got filed?
A. I thought it was accepted with the dedication.
Q. You thought it was.
A. Yes. When the road was dedicated, I thought it was accepted.
Q. What does it say on there? Does it say you approved it or accepted it?
A. I accepted, I believe.
Q. Did you get any legal opinion that merely by signing that Plat of Dedication that you accepted the roadway?
A. When I accepted — Unit 7 got the road when it was completed.
Q. I know.
How did you do that?
A. Because it was completed.
Q. After the road was completed, you accepted it, correct?
A. Right.
Q. The road wasn’t ever completed here before this lawsuit was filed, was it?
A. No, it wasn’t completed. It was dedicated.
Q. Correct.
So you never accepted that roadway until after this lawsuit, or any portion of it, until after this lawsuit was filed, correct?
A. No, I didn’t.
* * *
Q. Why didn’t you accept it?
A. Because it was no road there.
* * *
Q. If you once accepted that, could the people in these subdivisions force you to actually maintain that road and build it at that point, if you accepted it?
A. I have no idea. I never had that happen.
Q. Because you never accepted an unimproved roadway.
A. I never have, no.”

Later in his testimony, Valentine stated that township road districts seldom build roads; customarily, they wait for the developers to build roads in subdivisions.

Defendants’ next two witnesses were Richard Jacobson, head of the township fire protection district, and Constance Gradt, transportation director for the township high school. Both testified that the public would benefit from the development of the Hillandale Road extension, which would ease the problems created by the cul-de-sac. With the development of the extension, fire trucks and school buses could get into and out of the area more easily and reliably. However, Jacobson conceded that the fire department’s problem with this cul-de-sac was the same as it had with all other cul-de-sacs, and Gradt stated that enlarging the cul-de-sac would ease bus traffic in the area.

Defendants next called Robert May. May stated that, when the plat of dedication was filed, the area that included the Hillandale Road extension and the “farm” (an area labeled “102” on Zahn’s map) was actually held in a trust controlled by Arnold May. At the time Robert May signed the plat, his father was aware of the proposed dedication of the extension; when Arnold May told Robert May to sign the plat, Arnold May stated that he wished the property to be dedicated as a road. As of 1979, Arnold May was in charge of drawing up plats that contained what he and Robert May believed were the correct names on them.

Plaintiffs called several witnesses in rebuttal. Suzanne Ehardt testified that the “farm” (which extends both east and west of Hillandale Road) was presently zoned agricultural. This zoning classification allowed only one residence on the property unless the property was rezoned and platted anew under the subdivision review process. Furthermore, the land on the perimeter of the extension, although not the May residence, was on a floodplain, where residential construction was forbidden.

Thomas Zanck testified that, in 1988, his client Amcore owned the “farm” as the result of a foreclosure sale. On November 15, 1988, Zanck spoke with Valentine. He told Valentine that Amcore was interested in selling the property to someone named Bower and that Zanck would be petitioning to vacate the road extension. Valentine stated that he had no problem with the petition, but he later told Zanck that the fire protection district and the school district would object to the petition. Zanck informed Valentine that neither Amcore nor any other party was going to put in a road.

McHenry County engineer James Rakow, whose duties included exercising general control of the county highway system, testified that in October 1991 Valentine requested Rakow’s permission to accept 125 feet of Hillandale Road that had been developed after the present lawsuit was filed. Rakow’s department never received any similar request regarding any of the Hillandale Road extension other than this 125-foot stretch. Only after October 1991 did Rakow inform Valentine that the township did not need Rakow’s authorization to make such acceptances.

Michael May, vice-president of the excavating contractor that worked on the construction of the 125-foot stretch, estimated that it would cost about $13,900 to enlarge the Hillandale Road cul-de-sac to its platted size. The estimated cost of developing the Hillandale Road extension from the northern boundary of the fourth addition to the beginning of the sixth addition was about $100 per lineal foot. From the Zahn map, it appears that the distance involved in this development is well in excess of the 125 feet already developed.

At the close of the evidence, defendants’ attorney requested that the court take judicial notice that the county had exempted the property in question from taxation since 1979. The parties agreed that any tax revenue foregone was slight. The court stated that it would accept a certificate of exemption as evidence on the condition that defendants’ attorney find out how much revenue was involved. There is nothing in the record showing that defendants’ attorney supplied this information or that the certificate of exemption was admitted into evidence.

The trial court ruled in favor of plaintiffs. The court’s written order held that (1) the attempted statutory dedication was void from the beginning because May Development, which signed the plat, did not own the property; and (2) that “even if the dedication were construed as a common law dedication, [defendants] slept on their rights” and the equities of the case were with plaintiffs. The court ordered the county recorder of deeds to cancel the plat of dedication. The court declared that title to the real estate in issue was quieted in First Illinois, free of any claim by defendants. Defendant Walter Valentine timely appealed this order.

On appeal, Valentine concedes that there was no valid statutory dedication of the Hillandale Road extension. However, he maintains that the trial court’s finding that there was no common-law dedication was against the manifest weight of the evidence. Plaintiffs argue that the trial court properly found that although the owner of the property intended such a dedication in 1979, plaintiffs properly revoked the offer of dedication in 1992 because the township never accepted the offer in the intervening period. We hold that the plaintiffs’ argument, which the trial court accepted, is supported by the evidence.

A private party may make either a statutory or common-law dedication of property to a municipality or other public entity. A statutory dedication is created by a particular form of the instrument recorded (see 765 ILCS 205/3 (West 1992)), while a common-law dedication may be made by a written instrument or may be evidenced by acts and declarations without a writing. (Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 136.) A statutory dedication is not valid unless there has been strict compliance with the statute. (Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776.) The parties agree there was no valid statutory dedication here, as the plat of dedication was not signed by Arnold May, the owner of the relevant property at the time the plat was signed and filed. (See Kuney v. Zoning Board of Appeals (1987), 162 Ill. App. 3d 854, 857-58.) The issue remains whether there was nonetheless a valid common-law dedication.

For a common-law dedication to be effective, there must be (1) an intention to dedicate the property to public use; (2) acceptance by the public; and (3) unequivocal evidence of the first two elements. (Rose v. Village of Elizabethtown (1916), 275 Ill. 167, 176-77; Kuney, 162 Ill. App. 3d at 859.) On appeal, plaintiffs do not dispute that there was evidence of the owner’s donative intent. The testimony of Robert May and the circumstances of the filing of the plat of dedication provide sufficient evidence that Arnold May, the actual owner of the property, intended that the Hillandale Road extension be donated to the township. The sole issue left is whether the trial court erred in refusing to find that there was unequivocal evidence that the public accepted the dedication. If there was no acceptance, plaintiffs had the right to revoke the offer of dedication and did so by building on the property and by bringing this suit. See Nimpfer v. Village of Fox Lake (1929), 334 Ill. 46, 50; Village of Vermont v. Miller (1896), 161 Ill. 210, 215.

A municipality is not obligated to accept property simply because a private party has attempted to dedicate that property. (Warzynski v. Village of Dolton (1975), 61 Ill. 2d 475, 480.) Thus, whatever defendant’s subjective understanding at the time, the mere filing of the plat of dedication did not amount to a completed common-law dedication. Rather, the filing of a defective plat is at most an offer of dedication. (Rose, 275 Ill. at 177; Schwebl v. Seifer (1991), 208 Ill. App. 3d 176, 179; La Salle National Bank v. City of Chicago (1974), 19 Ill. App. 3d 883, 886.) Therefore, we must determine whether the township road district accepted this offer.

Acceptance may be proved by evidence of (1) direct municipal action, such as the municipality’s filing of a suit to establish a dedication (Reiman, 83 Ill. App. 3d at 776-77); (2) the municipality’s possession or maintenance of the property (McCue v. Berge (1944), 385 Ill. 292, 301); or (3) public use of the road for a substantial time (H.A. Hillmer Co. v. Behr (1914), 264 Ill. 568, 578; Village of Joppa v. Chicago & Eastern Illinois R.R. Co. (1977), 51 Ill. App. 3d 674, 680-81). However, whether any of these factors actually proves acceptance depends on the facts of each case. Behr, 264 Ill. at 578.

Here the trial court properly concluded that the township did not prove by unequivocal evidence that it timely accepted the intended dedication. Indeed, defendant’s own testimony, as quoted at some length above, is itself equivocal. Defendant acknowledged that the township did not wish to assume the burden of improving the property in question or any similar property. Defendant himself testified that he did not accept dedicated roadways until the owners had made the needed improvements. With such unclear testimony from the defendant, the trial court could conclude that there was no unequivocal evidence that the township had accepted the dedication (and the concomitant burden to make any improvements on the property it owned). The township road supervisor’s unexpressed subjective belief that he had accepted the dedication did not communicate anything to the owners of the property and was not equivalent to an acceptance.

Furthermore, the defendant has never denied that, from the time of the plat of dedication until the present suit, the “road” remained completely unimproved and had become overgrown with vegetation. The township performed no maintenance on the roadway, and there is no evidence that the public used this unimproved farmland for a public roadway. Courts have refused to find acceptance even where the public has made some use of the property. (See, e.g., Warzynski, 61 Ill. 2d at 478-80 (infrequent public use of the property as a shortcut insufficient to show use); Rose, 275 Ill. at 178 (mere travel is not sufficient to show acceptance by the public).) Here it appears that neither the municipality nor the public made any use of the supposed roadway for over a decade.

Defendant reminds us that “[wjhere a dedication is very beneficial or greatly convenient or necessary to the public, an acceptance may be implied from slight circumstances.” (McCue, 385 Ill. at 299-300; see Joppa, 51 Ill. App. 3d at 679.) We do not quarrel with this general principle, but we do not find it persuasive in this particular case. Given the lack of any maintenance or public use of the property for over a decade, it is doubtful whether the trial judge was required to find even the “slight circumstances” to which McCue alludes.

Equally importantly, the township’s actions (or lack of same) undercut its belated assertion that developing the extension is a matter of great public necessity. Defendants produced some evidence at trial that fire protection and school transportation might benefit from the completed development of the extension. However, we are entitled to ask why, if this public necessity was so great, the township did nothing to meet it in the long period during which all the parties concerned believed that the township had the authority to take such action. The trial court was entitled to ask the same question and to conclude that defendants gave no convincing answer. The trial court could also consider that (apparently) even the school and fire districts voiced concern about the extension only when private parties threatened to petition to vacate the alleged dedication.

Although defendant argues that the trial court improperly applied the doctrine of laches to this case, we agree with plaintiffs that the statement that the township “slept on [its] rights” simply expresses a finding of fact that the township did not accept the dedication prior to the plaintiffs’ revocation. We shall not overturn the trial court’s factual findings unless they are against the manifest weight of the evidence. (Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 759.) The finding that there was no valid common-law dedication is not against the manifest weight of the evidence.

Defendant argues that the failure of Arnold May (and of plaintiffs) to ascertain the correct owner of the Hillandale Road extension would result in a constructive fraud upon the township unless the township is adjudged to possess its claimed interest in the Hillandale Road extension. Citing Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 843-44, defendant reasons that, even though nobody intended any deception in filing the defective plat, allowing plaintiffs to benefit from the carelessness of May Development would work an unfair hardship upon the public.

We conclude that the trial court’s implicit finding that there was no constructive fraud is not against the manifest weight of the evidence. A showing of constructive fraud requires proof that plaintiffs breached a legal or equitable duty and that in doing so they tended to deceive others. (Joslyn, 159 Ill. App. 3d at 844.) Assuming that Robert May’s failure to ascertain the proper ownership of the parcel may be imputed to plaintiffs, we do not believe that the trial court was required to find that this amounted to constructive fraud. Defendant does identify or suggest what duty to him was breached. In Joslyn and in cases relying on its discussion of constructive fraud, the courts emphasized that the constructive fraud-feasor stood in a fiduciary relationship to the party defrauded or benefited from another’s breach of a fiduciary duty to the victimized party. (Joslyn, 159 Ill. App. 3d at 843; see also In re Gerard (1989), 132 Ill. 2d 507, 528-29; Vermeil v. Jefferson Trust & Savings Bank (1988), 176 Ill. App. 3d 556, 564.) Here defendant offers no argument to establish that May Development owed the township a duty, fiduciary or otherwise. We note further that information as to the true ownership of the property was a matter of public record, as accessible to township officials as to other parties.

Finally, we reject defendant’s assertion that plaintiffs are equitably estopped to deny that there was a valid dedication. To demonstrate an equitable estoppel, a party must show that it reasonably relied to its detriment on the misleading conduct of the other party. (Vaughn v. Speaker (1988), 126 Ill. 2d 150, 161-62.) Defendant asserts that, in reliance on the erroneous plat of dedication, it withdrew the property at issue from taxation and was forced to defend the present suit. We agree with plaintiffs that the trial court rightly found that such “prejudice” was inadequate to create an estoppel.

The trial court stated that it would consider the matter of the tax exemption only if counsel for defendant submitted evidence of the amounts involved; as far as the record indicates, counsel never submitted this information. Moreover, defendant admitted that the amount of tax revenue involved was minimal. Defendant cites no authority for his novel assertion that the township was prejudiced because plaintiffs were required to file a suit to clear title to the property. The township could have avoided this “prejudice” by suing to enforce the dedication; such a suit would have constituted the acceptance necessary to a valid common-law dedication. See Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776-77.

The evidence demonstrates that for over a decade the township took no action to develop the property. In light of this deliberate inaction, we cannot say that defendant proved either reasonable reliance on misrepresentations by plaintiffs (or by any other parties) or prejudice therefrom.

The trial court did not err in holding that there was neither a statutory dedication nor a common-law dedication of the Hillandale Road extension. Therefore, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

BOWMAN and QUETSCH, JJ., concur.