author: JUSTICE SLATER

text:
    GREATER PEORIA SANITARY AND SEWAGE DISPOSAL DISTRICT, Plaintiff-Appellant, v. GREGORY BAISE, as Secretary of the Illinois Department of Transportation, et al., Defendants-Appellees.
    Third District
    No. 3—92—0005
    Opinion filed September 9, 1992.

      Walter W. Winget, of Winget & Kane, of Peoria (James F. Kane, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (David Bo Mattson, Assistant Attorney General, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

During the course of a highway expansion project, defendants Gregory Baise and the Illinois Department of Transportation (hereinafter referred to collectively as IDOT) relocated sewer lines and manholes owned by plaintiff Greater Peoria Sanitary and Sewage Disposal District (the Sanitary District). IDOT billed the Sanitary District for the cost of the relocation, and the Sanitary District sought a declaratory judgment that it was not liable for those costs. The trial court found in favor of IDOT and this appeal followed. We affirm.

The facts of this case are relatively simple and largely undisputed. In 1939 and the early 1940’s, the predecessor State agency to IDOT, the Illinois Department of Public Works and Buildings, obtained dedications of public rights-of-way for roadway purposes over the tracts of land at issue in this case. In 1962 and 1965, sewer lines were installed in the right-of-way by two developers to serve new subdivisions which were being constructed near Route 150. Each of the sewer installation projects was undertaken pursuant to a highway permit issued by IDOT’s predecessor. The permits provided:

“That should the State’s construction on and operation of said highway require any alteration or change of location of the work called for in this permit, such alteration or change of location shall be made by the Petitioner upon written request by the Chief Highway Engineer without expense to the State of Hlinois, and should the Petitioner fail to make satisfactory arrangements to comply with this request within 60 days, the State reserves the right to make such alterations or change of location or remove the work and the Petitioner agrees to pay for the cost incurred.”

After the sewer lines were installed, they were maintained and operated by the Sanitary District.

In the early 1980’s, IDOT decided to expand Route 150 from two lanes to four lanes to accommodate increased traffic. IDOT notified the Sanitary District that its sewer lines were to be relocated, but the Sanitary District refused to relocate the lines. Relying on section 9— 113 of the Illinois Highway Code (Ill. Rev. Stat. 1985, ch. 121, par. 9 — 113), IDOT then moved the sewer lines and eight manholes and billed the.Sanitary District approximately $114,000 for the cost of that work. The Sanitary District filed a declaratory judgment action. As noted above, the trial court ruled in favor of IDOT.

Section 9 — 113 of the Illinois Highway Code provides in part:

“§9 — 113. (a) No ditches, drains, track, rails, poles, wires, pipe line or other equipment of any public utility company, municipal corporation or other public or private corporation, association or person shall be located, placed or constructed upon, under or along any highway, or upon any township or district road, without first obtaining the written consent of the appropriate highway authority as hereinafter provided for in this Section.
* * *
(f) Any ditches, drains, track, rails, poles, wires, pipe line or other equipment located, placed or constructed upon, under or along a State highway with the consent of the State highway authority under this Section shall, upon written notice by the State highway authority, be subject to removal, relocation or modification at no expense to the State highway authority when and as deemed necessary by the State highway authority for highway or highway safety purposes. If, within 60 days after receipt of such written notice, arrangements are not made satisfactory to the State highway authority for such removal, relocation or modification, the State highway authority may remove, relocate or modify such ditches, drains, track, rails, poles, wires, pipe line or other equipment and bill the owner thereof for the total cost of such removal, relocation or modification.” Ill. Rev. Stat. 1987, ch. 121, par. 9 — 113.

The Sanitary District contends that section 9 — 113 does not apply in this situation because it does not specifically mention sewers. The District argues that the doctrine of ejusdem generis excludes sewers from the reach of section 9 — 113. We disagree.

“[Ujnder the doctrine of ejusdem generis, when a statutory clause specifically describes several classes of persons or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted as meaning ‘other such like.’ ” (Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 396, 475 N.E.2d 536, 539.) While section 9 — 113 does not use the term “sewer,” it does refer to “ditches, drains, *** pipe line or other equipment.” (Ill. Rev. Stat. 1987, ch. 121, par. 9 — 113.) We believe that sewers are sufficiently similar to ditches, drains and pipe lines as to be included within the term “other equipment.” We note that various sections of the Sanitary District Act of 1917 (Ill. Rev. Stat. 1985, ch. 42, par. 298.99 et seq.), the statutory authority under which the Sanitary District was created, use similar language. (See, e.g., Ill. Rev. Stat. 1985, ch. 42, pars. 306.1 (“drains, ditches, sewers, outlets and sewerage treatment plants”), 307 (“drains, channels or ditches”), 312 (“sewers, channels, ditches and drains, *** conduit or conduits, main pipe or pipes”), 313 (“conduit or conduits, main pipe or pipes”).) We hold, therefore, that section 9 — 113 applies to the sewer lines and manholes at issue in this case.

The Sanitary District also maintains that it has a statutory easement over public highways which can only be taken by condemnation. The District relies on section 13 of the Sanitary District Act of 1917, which provides in part:

“312. Easement over public highways, state lands, etc.
§13. Every such district is authorized to construct, maintain, alter and extend its sewers, channels, ditches and drains, as a proper use of highways along, upon, under and across any highway, street, alley or public ground in the state, but so as not to incommode the public use thereof, and the right and authority are hereby granted to any such district to construct, maintain and operate any conduit or conduits, main pipe or pipes, wholly or partially submerged, buried or otherwise, in, upon and along any of the lands owned by said state under any of the public waters therein; Provided, that the extent and location of the lands and waters so as to be used and appropriated by the Governor of said State of Dlinois, upon application duly made to him asking for such approval.” Ill. Rev. Stat. 1985, ch. 42, par. 312.

The Sanitary District argues that such an easement, being an interest in land, cannot be altered or extinguished except by condemnation and the payment of damages for the taking. The District further maintains that IDOT has no power to condemn property already held by another public body. (Department of Public Works & Buildings v. Ells (1962), 23 Ill. 2d 619, 179 N.E.2d 679.) The trial court found that the heading “Easement over public highways, state lands, etc.” was not part of the statute and that section 13 merely grants a license to the Sanitary District to use the land in question.

Although a statute should be read as a whole and its title may be considered in construing it (Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 528 N.E.2d 1104), the caption supplied by the publisher of the Illinois Revised Statutes is not part of the official title or contents of the statute and the heading of a statute cannot alter the plain meaning of the substantive language (People v. Jones (1991), 217 Ill. App. 3d 175, 576 N.E.2d 1138, rev’d on other grounds (1992), 149 Ill. 2d 288, 595 N.E.2d 1071). While an easement is an interest in land, a license is permission to do an act or series of acts upon the land of another without possessing any estate or interest in such land. (Mueller v. Keller (1960), 18 Ill. 2d 334, 164 N.E.2d 28.) Obtaining a right-of-way by easement is an interest in land, but obtaining public authorization and permission to construct and maintain is not. (McMillin v. Economics Laboratory, Inc. (1984), 127 Ill. App. 3d 517, 468 N.E.2d 982.) Section 13 states that the district “is authorized to construct *** sewers *** as a proper use of highways *** but so as not to incommode the public use thereof.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 42, par. 312.) The trial court found that this section granted the Sanitary District a license rather than an easement. We believe this finding is compatible with the statutory language and is also consistent with section 16. That section provides:

“§16. When, in making any improvements which any district is authorized by this Act to make, it shall be necessary to enter upon and take possession of any existing drains, sewers, sewer outlets, plants for the purification of sewage or water, or any other public property, or property held for public use, the board of trustees of such district shall have the power to do and may acquire the necessary right of way over any other property held for public use in the same manner as is herein provided for acquiring private property, and may enter upon, and use the same for the purposes aforesaid: Provided, the public use thereof shall not be unnecessarily interrupted or interfered with, and that the same shall be restored to its former usefulness as soon as possible.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 42, par. 315.

In other words, this section authorizes the Sanitary District to acquire possession of, or the necessary right-of-way over, public property through use of its eminent domain powers. This demonstrates an overall statutory design which contemplates that when possessory rights are involved, the Sanitary District should acquire the rights through condemnation. Construing section 13 as granting easement rights over highways would be inconsistent with this statutory scheme. We hold, therefore, that section 13 merely grants the Sanitary District a license to use public highways which is subject to the provisions of section 9 — 113 of the Illinois Highway Code.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

BARRY, P.J., and HAASE, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
      In re ESTATE OF HELEN HOEHN, Deceased (Thelma Baggs, Claimant-Appellant, v. Elizabeth A. Beck, Special Adm’r, Appellee (Connie Voight, Legatee, Defendant)).
    Third District
    No. 3—91—0894
    Opinion filed September 23, 1992.

      Kevin R. Galley, of Law Office of Kevin R. Galley, of Lacón, for appellant.
    Elizabeth A. Beck, of Barnes & Barnes, of Lacón, appellee pro se.

   JUSTICE STOUDER

delivered the opinion of the court:

This appeal involves a statutory custodial claim filed by the claimant-appellant, Thelma Baggs, pursuant to section 18 — 1.1 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. lHP/s, par. 18 — 1.1) against the estate of her sister, Helen Hoehn. Because Baggs was also the estate’s executor, the appellee, Elizabeth Beck, was appointed as special administrator of the estate. Following a hearing, the circuit court entered an order denying the claim, concluding that the claimant had not met the requirements of the statute. The only issue on appeal is whether the claimant satisfied the requirements of the statutory custodial claim statute. We affirm.

This case involves the estate of Helen Hoehn, who died testate on March 23, 1989. Hoehn’s sister filed a statutory custodial claim against the estate on October 16, 1989. The statutory custodial claim statute is a new statute that went into effect on January 1, 1989, and provides as follows:

“Any spouse, parent, brother, or sister of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least 3 years shall be entitled to a claim against the estate upon the death of the disabled person. The claim shall take into consideration the claimant’s lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person. The claim shall be in addition to any other claim, including without limitation a reasonable claim for nursing and other care. The claim shall be based upon the nature and extent of the person’s disability ***.” Ill. Rev. Stat. 1989, ch. 110½, par. 18-1.1.

Baggs contends that her actions in caring for her sister between 1979 and 1983 place her within the purview of the statute. On Decernber 22, 1979, Helen Hoehn moved into an apartment in Lacón, Illinois. At the same time, Baggs moved into the apartment across the hall. Hoehn was suffering from Parkinson’s disease, which steadily-progressed during the time she lived in the apartment building. Hoehn’s condition eventually required her to be admitted to a nursing home in December of 1983. Both Hoehn and Baggs were retired widows during the time they lived in the apartment building, and they were constant social companions. Baggs testified to having performed several functions in caring for her sister, including cutting her food, helping her bathe, and helping her dress. According to Baggs’ testimony, she performed these functions during the V-k years before Hoehn was admitted to a nursing home.

Hoehn died on March 23, 1989, leaving a personal estate in the amount of $63,220.86. In her will, she made several specific bequests of cash and personal property. Baggs was to receive a diamond ring and whatever household goods and personal belongings she wished to take. Hoehn’s grandchildren, Connie Voight and James Guiliani, were to receive the residue of the estate. Baggs filed a statutory custodial claim against the estate, seeking $50,000 for her actions in caring for Hoehn. The circuit court denied Baggs’ claim, finding that she did not fall within the purview of the statute.

We agree with the circuit court that the statute does not apply to Baggs for several reasons. First, Baggs did not meet the statutory requirement of living with the disabled person. Baggs claims that, in this case, living in an apartment across the hall is good enough. Baggs argues that since the door of her apartment was only eight feet from the door of Hoehn’s apartment, this situation is no different than if they would have lived together. We disagree.

Where the language of a statute is unambiguous, courts must enforce the law as enacted without considering other aids for construction. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) Unambiguous terms of a statute, where not specifically defined, must be given their plain and ordinary meaning. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873.) In our opinion, the plain and ordinary meaning of “living with” does not include other tenants of an apartment building. Baggs argues that this interpretation exalts form over substance. Such an argument ignores the fact that when statutory language is plain and certain the court is not free to give it a different meaning. There is no rule of construction authorizing a court to declare that the legislature did not mean what the plain language of the statute imports. County of Du Page, 109 Ill. 2d 143, 485 N.E.2d 1076.

Further, we find that the circuit court was correct in deciding that Baggs did not meet the statutory requirement of dedicating herself to the care of Hoehn. We agree with the circuit court that a fair reading of the statute would lead to the conclusion that the factors to be considered in determining dedication are those listed in the statute itself: lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced from caring for the disabled person. Baggs was already retired in 1979 and therefore did not lose any employment opportunities. Additionally, it does not appear that her lifestyle changed significantly while living across from her sister. Baggs did testify to suffering from emotional distress, but that distress was related to watching her sister die. Hoehn did not die until almost six years after the relevant time period in this case. Baggs’ testimony does not reveal emotional distress suffered as a result of caring for her sister.

Finally, we find that Baggs has not satisfied the three-year time period of the statute. Baggs’ testimony clearly revealed that the actions of caring for her sister, such as helping her dress, bathing her, and cooking and cutting her food, only occurred in the year and a half prior to Hoehn’s confinement in the nursing home. Therefore, the three-year time period was not satisfied.

No issue was raised by the parties concerning the prospective or retroactive effect of the statute, and our decision expresses no opinion on that subject.

For all of the above reasons, the decision of the circuit court of Marshall County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NELSON BELL, Defendant-Appellant.
    Third District
    No. 3—91—0831
    Opinion filed September 23, 1992.

      Harold M. Jennings, of Jennings, Novick, Taseff, Smalley & Davis, P.C., of Bloomington (Ronald L. Lewis, of counsel), for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Nelson Bell was indicted on two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(l)(i))- Following a trial by jury, defendant was convicted of two counts of aggravated criminal sexual assault and sentenced to two consecutive six-year terms of imprisonment. Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial due to prosecutorial misconduct during closing argument; (3) whether defendant’s counsel was ineffective; and (4) whether defendant was improperly sentenced to mandatory consecutive sentences. For the reasons stated below, we affirm defendant’s conviction and sentence on one count of aggravated criminal sexual assault, reduce the defendant’s second conviction to aggravated criminal sexual abuse, and remand for resentencing.

The victims in this case are the defendant’s nieces, D.W. and E.W., who were 9 and 12 years old, respectively, at the time the offenses were committed. The children, who lived with their mother in Bloomington, came to visit defendant and his wife at their home in Peoria in March of 1991. D.W. testified that she was watching television when the defendant asked her to go into the bathroom with him. Defendant’s wife, whom the children called Aunt Shirley, was at work at the time. D.W. pulled down her pants and bent over at defendant’s request, and defendant looked at D.W.’s vagina “to see if anybody was bothering [her].” Defendant then touched D.W.’s vagina with his finger. Defendant then told D.W. to pull up her pants, and she went back to watching television.

D. W. further testified that she told Aunt Shirley about the incident a few days later, but she did not believe her. D.W. also called her mother and told her what had happened. A police officer eventually took the girls from the defendant’s home and interviewed them at the police station. They were also questioned by an investigator for the Department of Children and Family Services (DCFS).

On cross-examination, D.W. stated that defendant “handled [her] vagina.” Defense counsel later asked D.W. if defendant “just put his hands on your, as you describe, vagina or what?” D.W. responded: “No. He put his finger — he was rubbing my vagina.”

E. W., the older sister of D.W., also testified about an incident involving the defendant while the children were visiting in March of 1991.

“Q. [Assistant State’s Attorney]: Was there sometime during the week that you were at Uncle Nelson and Aunt Shirley’s that Uncle Nelson asked to check you?
A. [E.W.]: Yes.
Q. Could you tell us about that, please[?]
A. When I was in the living room sitting on the chair he asked me to come downstairs in the basement. And he told me to pull my pants down, so I did. Then he told me to bend down and then he rubbed my private.
Q. Rubbed your privates?
A. Yeah.
Q. What — what part of your body are your privates at?
A. Where I pee at.
Q. Okay. And what did he rub your privates with?
A. His finger.
Q. And did he say anything when he did that to you?
A. He asked me, Has anybody been touching me.
Q. He said this when he — did he just — did he rub you or put his finger in you? What exactly did he do?
A. Rubbed it.
Q. Okay. With what?
A. His first finger.
Q. Okay. Was there anybody else in the basement when this happened?
A. No.”

Like D.W., E.W. testified that she told Aunt Shirley what had happened and she also told her mother during a telephone call. E.W. further stated that the police took her from defendant’s home and questioned her at the police station. On cross-examination, defense counsel asked E.W. if defendant put his hands on her private parts. E.W. answered “Yeah, he rubbed it.”

Officer Tommie J. Moton of the Peoria police department testified that she went to the defendant’s residence on March 28, 1991, and removed D.W. and E.W. from the home. Moton interviewed each of the girls separately at the police station. With respect to D.W., Moton testified:

“A. [Officer Moton]: She told me she went into the bathroom and she pulled her pants down, because according to her, she knew this was expected of her. And her uncle stood in front of her, pulled — pulled her — used his fingers and pulled her vagina part. She said, ‘private apart.’ She said she was told to stand up, turn around and bend over, and he pulled her privates apart. And she did like this, meaning on her privates. (Indicating.)
MS. MERMELSTEIN [Assistant State’s Attorney]: Would the record reflect that the witness ran her first finger of her right hand up, in an up-and-down direction?
THE COURT: It may.”
Moton later testified regarding E.W.:
“A. [Officer Moton]: [E.W.] told me she was told by her uncle to go to the basement play room so he could check her to see if someone had messed with her.
Q. And did she tell you she went to that room?
A. She said she went to the — went to the play room and her uncle told her to pull her pants down, and he looked at her and felt her privates.
Q. Did you have her describe where her privates were?
A. She pointed to the area between her legs.”

The final witness to testify for the State was Cindy Flannery, a child protective investigator for DCFS. Flannery stated that she interviewed D.W. on March 29, 1991. When asked what D.W. told her during the interview, Flannery testified:

“A. She told me that she and her sister had been staying there during their Easter vacation from school and that one day earlier that week her Uncle Nelson had told her that he wanted to check to see if anybody had been messing with her and told her to go into the bathroom. And she went into the bathroom and he told her to take her pants down which she did. And she turned around. He told her to turn around and she bent over. And she told me that he looked at her privates. I then asked her what her privates were. And she explained to me, that’s where she goes pee. And she told me that her Uncle Nelson then looked at her and pulled her apart and ran his finger up inside in her privates.”

Flannery did not testify regarding any statements made by E.W.

Defendant testified that he and his wife had been married for 20 years and they were the parents of three adopted children. Defendant admitted asking the children if anyone had been “messing with them,” but he denied fondling the girls. Defendant became aware of the girls’ allegations when his wife told him what the girls had said to her.

Shirley Bell, the defendant’s wife, testified that she picked up D.W. and E.W. and brought them to Peoria on Monday, March 25. Later that day, Mrs. Bell went to work, leaving the house at 4:45 p.m. and returning at approximately 7:45 p.m. Upon her return, she saw D.W. and E.W. and they made no complaints to her. The following day, however, D.W. told Mrs. Bell that defendant had been “messing with” them. Mrs. Bell stated that she did not believe the children because they told her that defendant had messed with them “that day,” and she had been with them all day. Mrs. Bell told the defendant about the children’s allegations later that day.

The defendant first contends that the State failed to prove beyond a reasonable doubt that he committed aggravated criminal sexual assault. Specifically, defendant maintains that there was insufficient proof of sexual penetration of either D.W. or E.W.

The defendant was convicted of violating section 12 — 14(b)(l) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 12— 14(b)(l)) in that he was 17 years of age or older and committed an act of sexual penetration with victims who were under 13 years of age when the act was committed. In the context of this case, “sexual penetration” is defined as “any intrusion, however slight, of any part of the body of one person *** into the sex organ *** of another person” (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(f)). When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime proved beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Whether penetration occurred is a question of fact, which is to be evaluated by the jury as the trier of fact, and a lack of detail in a witness’ testimony only affects the weight of the evidence. People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

We find that there was ample evidence presented to establish proof of sexual penetration of D.W. D.W. testified that defendant “handled” and “rubbed” her vagina. Officer Moton testified that D.W. told her that defendant used his fingers and “pulled her privates apart.” Cindy Flannery testified that D.W. told her that defendant “pulled her apart and ran his finger up inside in her privates.” Defendant, citing People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125, argues that D.W.’s testimony did not establish penetration, and that the testimony of Moton or Flannery cannot be used to show penetration because it does not coincide with D.W.’s testimony. We believe that the defendant has misconstrued Kelly. Kelly held that the State failed to prove penetration where the victim testified that the defendant had touched her in her “naughty place” and where a witness testified that the victim told her that the defendant had “poked” her. Kelly did not hold, as the defendant seems to suggest, that hearsay statements admitted under section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115— 10) may not be used to establish penetration unless the victim also clearly testifies to penetration. Such a requirement is contrary to the plain language of the statute, which allows testimony of hearsay statements by victims of sexual offenses under 13 years of age describing any complaint or matter or detail “pertaining to any act which is an element of [such] an offense” (emphasis added) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10). We hold that defendant was proved guilty beyond a reasonable doubt of aggravated criminal sexual assault of D.W.

There is substantially less evidence of penetration, however, with regard to E.W. E.W. testified that defendant rubbed her privates with his finger. Officer Moton testified that E.W. told her that defendant “felt her privates.” If these statements were the only evidence in the record concerning penetration, we would deem them sufficient to affirm the defendant’s conviction under the Collins standard, in view of the fact that the jury is entitled to draw reasonable inferences from the evidence, including an inference of penetration. (See Shum, 117 Ill. 2d 317, 512 N.E.2d 1183.) We note, however, the following testimony:

“Q. [Assistant State’s Attorney]: [Defendant] said this when he — did he just — did he rub you or put his finger in you? What exactly did he do?
A. [E.W.]: Rubbed it.”

While, as noted above, the jury is entitled to draw inferences from the evidence, such inferences must be reasonable. Although under other circumstances a jury might reasonably infer that an act of penetration occurred based on the testimony that defendant rubbed and felt E.W.’s privates, such an inference is not reasonable where E.W.’s answer to the specific question of whether any penetration took place was implicitly negative. We hold, therefore, that there was insufficient evidence of penetration of E.W. and defendant was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault upon E.W. We further find that there was sufficient evidence that defendant committed an act of sexual conduct with E.W. Sexual conduct is “any intentional or knowing touching or fondling *** of the sex organs *** of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(e).) Accordingly, pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we modify defendant’s conviction to the lesser included offense of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(cXlX0) and remand for sentencing on that offense. See People v. Patel (1991), 213 Ill. App. 3d 688, 572 N.E.2d 314 (aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault); People v. Finley (1988), 178 Ill. App. 3d 301, 533 N.E.2d 94 (same); People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850 (same).

Defendant also contends that he was deprived of a fair trial due to improper statements by the prosecutor during closing argument. First, defendant claims that the prosecutor misstated the evidence by arguing:

“Nelson Bell, by those little girls’ testimony, took his fingers, obviously parts of his body, and rubbed them through the lips of their vaginas.”

Next, defendant argues that the following comments improperly appealed to the sympathies and fears of the jury:

“But what did they do when they were alone with their Aunt Shirley who they told in the car coming home from church, ‘Uncle Nelson’s been messing with us’? She blows them off, and then the next day leaves them home alone with this man. These aren’t adults, these are little kids. Where do little kids go for protection? Where do your little kids go for protection? One would assume they would go to the parents and the closest ones to them. But in this case it didn’t work for [E.W.] and [D.W.]. *** And imagine, look what happened to these little girls, 10 and 12-year-old children; they are taken from their aunt and uncle’s home after they’d been molested, they go down to the police station, they’re interrogated in interview rooms by themselves by this woman they never met before about their molestation, they are then taken to the Southside Mission and left there for the night, no mom, no dad.”

Defendant did not object to any of the statements related above, nor did he refer to them in his post-trial motion. Both a timely objection at trial and a complaint of error in a written post-trial motion are necessary to preserve an issue for review. (People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) These alleged errors have been waived.

Furthermore, even if we were to consider these comments under the plain error rule, as defendant requests, we would not reverse defendant’s conviction. Prosecutors have a great deal of latitude in making closing arguments, and for a remark to be deemed reversible error, it must have resulted in substantial prejudice to the accused, such that- the verdict would have been different had it not been made. (People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.) Statements which are based upon facts in evidence, or upon reasonable inferences drawn from the evidence, are within the scope of proper argument. (Fields, 135 Ill. 2d 18, 552 N.E.2d 791.) Moreover, it is not improper for a prosecutor to comment upon the evils of crime and its impact on the victim. People v. Carter (1985), 132 Ill. App. 3d 523, 477 N.E.2d 1307.

With respect to the second set of comments of which defendant complains, we find that they were permissible comment upon the impact of the crime on the victims. As for the alleged misstatement by the prosecutor that the defendant rubbed his fingers through the lips of the girls’ vaginas, we find that this statement was supported by the evidence as it pertains to D.W. We believe, however, that this was an overstatement of the evidence regarding defendant’s actions with E.W. Nevertheless, we find that any error created by this comment was harmless. The jury was instructed that closing arguments are not evidence and that they should disregard any statements not based on the evidence. We do not believe that this isolated remark deprived the defendant of a fair trial.

Defendant also maintains that his defense counsel was ineffective in that he: (1) failed to appear for a scheduling conference; (2) failed to file any substantive pretrial motions; (3) delivered an “incoherent” closing argument which did not address the lack of penetration evidence or counter the prosecutor’s argument; (4) failed to object to improper arguments by the prosecutor; and (5) failed to object to jury instructions on aggravated criminal sexual assault when the evidence did not support such a charge.

To establish ineffective assistance of counsel, defendant must show that his counsel’s performance was deficient in that it fell below an objective statement of reasonableness and that defendant was prejudiced such that there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Errors in trial strategy, judgment or tactics alone will not render counsel’s performance deficient. (People v. Siverly (1990), 194 Ill. App. 3d 981, 551 N.E.2d 1040.) A court may dispose of an ineffectiveness claim based on a lack of sufficient prejudice before deciding whether counsel’s performance was deficient. People v. Eddmonds (1991), 143 Ill. 2d 501, 578 N.E.2d 952.

Defendant does not explain how he was prejudiced by counsel’s failure to appear at the scheduling conference. The trial court granted a continuance, and we can discern no prejudice to defendant. Similarly, defendant does not assert any prejudice due to counsel’s failure to file any pretrial motions, nor does he suggest what motions should have been filed. Moreover, we note from the record that the parties engaged in pretrial discovery. Defendant has failed to show that he was prejudiced.

We also find no merit in defendant’s contention that his defense counsel erred in failing to emphasize the lack of evidence concerning penetration during an “incoherent” closing argument. Defense counsel argued that the offenses did not happen and that the children’s testimony was not credible. Counsel did not try to persuade the jury that the defendant’s actions did not amount to penetration. This was clearly a reasonable tactical choice, since the latter argument could imply that counsel was conceding that some improper touching had occurred. We find no error.

We further find that defendant was not prejudiced by defense counsel’s failure to object to the prosecutor’s closing argument nor by his lack of objection to instructing the jury on aggravated criminal sexual assault. As noted previously, the prosecutor’s comments were either supported by the evidence or harmless error. Moreover, decisions on what matters to object to and when to object are generally matters of trial strategy, and failure to object to portions of closing arguments does not establish incompetent representation. (People v. Pecoraro (1991), 144 Ill. 2d 1, 578 N.E.2d 942.) With regard to the jury instructions, although we have determined that the evidence was insufficient to prove penetration of E.W., we deem it unlikely that an objection to instructing the jury on aggravated criminal sexual assault would have been successful in view of the fact that the trial court denied defense counsel’s motion for a directed verdict at the close of the State’s case. Defense counsel is not ineffective for failing to make losing motions or objections. (People v. McCarthy (1991), 213 Ill. App. 3d 873, 572 N.E.2d 1219.) In addition, any possible prejudice to defendant has been cured by our modification of defendant’s conviction to aggravated criminal sexual abuse.

Finally, defendant’s argument that he was improperly sentenced to mandatory consecutive sentences under section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a)) because the offenses were not part of a single course of conduct is moot. Section 5 — 8—4(a) provides in part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily ■ injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a).)

Defendant now stands convicted of one count of aggravated criminal sexual abuse, a Class 2 felony (Ill. Rev. Stat. 1991, ch. 38, par. 12— 16), and one count of aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14). As this court stated in People v. Wittenmyer (1991), 216 Ill. App. 3d 1042, 1047-48, 576 N.E.2d 528, 531-32, appeal allowed (1991), 142 Ill. 2d 664, 584 N.E.2d 139:

“We interpret section 5 — 8—4(a) to require both a conviction for a Class X or Class 1 felony plus an additional conviction for a violation of section 12 — 13 or 12 — 14 before a consecutive sentence can be imposed. A single conviction for violation of section 12 — 14, which is a Class X felony, cannot serve as the basis for consecutive sentences when the defendant has no other convictions of violations of section 12 — 13 or 12 — 14, and has not been convicted of any other Class X or Class 1 felony.”

Section 5 — 8—4(a) is, therefore, not applicable to defendant.

For the reasons stated above, we affirm defendant’s conviction and sentence on one count of aggravated criminal sexual assault, modify the defendant’s second conviction to aggravated criminal sexual abuse and remand for sentencing on the modified offense.

Affirmed as modified and remanded.

GORMAN and HAASE, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MICHAEL T. WEBBER, Petitioner-Appellant.
    Third District
    No. 3—92—0029
    Opinion filed September 8, 1992.

      Michael T. Webber, of Springfield, appellant pro se.

    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioner, Michael T. Webber, pled guilty to armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A — 2). He was sentenced to a 10-year prison term. Webber’s sentence was to be served consecutively to an 87-month Federal penitentiary sentence. Webber had been previously convicted in Federal court of the offense of knowingly distributing cocaine.

Webber subsequently filed a petition for a writ of habeas corpus. The trial court dismissed Webber’s petition. He appeals. We affirm.

The pertinent facts are as follows: Michael Webber is currently confined in the Federal penitentiary in Leavenworth, Kansas. On April 8, 1988, Webber was charged in Tazewell County, Illinois, with armed violence, unlawful possession of a controlled substance with the intent to deliver, and unlawful use of weapons.

On September 22, 1988, while Webber was out on bond in the Tazewell County case, he was arrested by Federal authorities for knowingly distributing cocaine. He was subsequently convicted of this offense in Federal court. On August 22, 1989, he was sentenced to an 87-month prison term.

Following his Federal conviction, Webber was returned to the Tazewell County jail because his State charges were still pending. On October 16, 1989, Webber pled guilty in the circuit court of Tazewell County to the offense of armed violence in exchange for the State dismissing the two remaining charges. Webber was then sentenced to a 10-year prison term which was to be served consecutive to the previously imposed Federal sentence.

According to Webber, he spent the night of October 16, 1989, in the Tazewell County jail and a short time the next day in the Peoria County jail. On October 17, 1989, one day after sentencing in Tazewell County, Webber was surrendered to Federal authorities.

Thereafter, the State of Illinois lodged with Federal authorities a detainer against Webber. In his petition for habeas corpus, Webber sought removal of the detainer.

On appeal, Webber contends that reversible error occurred when the trial court dismissed his petition for habeas corpus. Webber argues that he is entitled to removal of the detainer because the State of Illinois voluntarily relinquished custody over him when they returned him to Federal authorities. We disagree with Webber’s faulty logic.

Section 3 — 8—9 of the Unified Code of Corrections (Code) contains the procedure for trying defendants charged with offenses in more than one State. (Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 8—9.) “State” is defined in the Code to include the United States of America. (Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 8—9, Art. 11(a).) The Code further provides that in the case of a Federal prisoner, a receiving State is entitled to temporary custody so that the prisoner can be tried in that State. (Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 8—9, Art. V(a).) Lastly, the Code provides:

“(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
***
(g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 8—9, Articles V(e), (g).

In the instant case, Webber was sentenced to a Federal prison term on August 22, 1989, and he was committed to the custody of the Attorney General of the United States. Thereafter, Webber was merely placed in the temporary custody of the State of Illinois until he was sentenced in Tazewell County on October 16,1989.

Pursuant to the Code, the State of Illinois, following disposition of the Tazewell County case, was required to return Webber to the custody of the United States Attorney General. Therefore, contrary to Webber’s claim, the State of Illinois did not voluntarily relinquish custody over him when it returned him to Federal custody. Webber was actually in Federal custody, and Illinois only had temporary custody of Webber pending disposition of the State charges.

Additionally, we note that in all of the cases cited by Webber, the defendant was first convicted by a State and was already serving his State sentence. Also, in the cases he cited, the State, before the expiration of the defendant’s sentence, voluntarily released the defendant to another State or to the Federal authorities for prosecution. Accordingly, the courts held that the first State had thereby waived jurisdiction or had effectively given the defendant a pardon. Therefore, based on the cases cited by Webber, the State cannot seek a defendant’s return to serve the balance of his sentence. See, e.g., Thompson v. Bannan (6th Cir. 1962), 298 F.2d 611.

We agree with the logic of the cases cited by Webber. However, we find that they have a different factual basis than the case at bar. Therefore, Webber’s reliance on these cases is misplaced.

In the instant case, Webber was detained in the Illinois jails for only one day following his sentencing in State court. The day after sentencing, he was transferred to the custody of Federal authorities. Thus, the Illinois authorities merely held Webber in temporary custody until Federal authorities could claim him. Accordingly, we find that Webber had not started serving his sentence in Illinois before he was surrendered to Federal authorities.

Webber, in his final issue, claims that the State of Illinois has deprived him of privileges which he would have been entitled to if he was not serving his Federal sentence subject to the State detainer. However, Webber does not specify what privileges he may have lost.

Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) states that the appellant’s brief must include the reasons which support his contentions. Moreover, both a court of review and the appellee are entitled to have the issues clearly defined in the appellant’s brief. (See People v. Trimble (1989), 181 Ill. App. 3d 355, 537 N.E.2d 363.) Arguments that do not meet the requirements of Rule 341(e)(7) are deemed waived. (Trimble, 181 Ill. App. 3d at 357, 537 N.E.2d at 364.) Accordingly, we find that Webber has waived the final issue because he did not cite any reasons in support of his contention.

For the reasons indicated, the order of the circuit court of Tazewell County dismissing the petition for writ of habeas corpus is affirmed.

Affirmed.

HAASE and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BARRY JUSTICE SLATER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY EDWARD LOVETT, Defendant-Appellant.
    Third District
    No. 3—91—0625
    Opinion filed September 22, 1992.
    SLATER, J., specially concurring.
    Catherine FitzSimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Larry Edward Lovett, was charged with disorderly conduct and theft. Thereafter, the State filed a petition alleging that the defendant was a sexually dangerous person. (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 1.01 et seq.) Following a stipulated bench trial, the defendant was found to be a sexually dangerous person. He appeals, and we affirm.

The Sexually Dangerous Persons Act (the Act) states in relevant part:

“When any person is charged with a criminal offense and it shall appear to the Attorney General or to the State’s Attorney of the county wherein such person is so charged, that such person is a sexually dangerous person, within the meaning of this Act, then the Attorney General or State’s Attorney of such county may file with the clerk of the court in the same proceeding wherein such person stands charged with [a] criminal of feme, a petition in writing setting forth facts tending to show that the person named is a sexually dangerous person.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 105 — 3.

Although the defendant acknowledges on appeal that the Act does not state that the criminal charge which underlies a petition must set forth a sexual offense, he nonetheless argues that the Act implicitly requires the underlying charge to be sexually related, We disagree.

When construing a statute, our prime consideration is to give effect to the intent of the legislature. (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.) That intent can best be determined by the plain and ordinary meaning of the statutory language. Moreover, a reviewing court should interpret a statute to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity. People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.

In the case at hand, we note that the Act does not require the underlying criminal offense to be a sexual offense. Rather, the Act merely requires that a person be charged with a criminal offense. Had the legislature intended otherwise, it would have specifically stated that a person must be charged with a sexual offense before a petition could be filed. Since it did not do so, we find that the term “criminal offense” means any criminal offense and not only offenses that are sexually related.

The defendant also argues that the Act violates the equal protection clause. We find this contention to be without merit.

The equal protection clause does not deny the State the power to treat different classes of persons in different ways. The clause only comes into play when the law punishes unequally persons who have committed the same quality of offense. People v. Bradley (1980), 79 Ill. 2d 410,403 N.E.2d 1029.

In the case at hand, the defendant has failed to show how he was treated differently from any other person who was charged with an offense and also fit the definition of a sexually dangerous person. As such, we find no violation of the equal protection clause.

Accordingly, the judgment of the circuit court of Knox County is affirmed.

Affirmed.

GORMAN, J., concurs.

JUSTICE SLATER,

specially concurring:

In the case at bar, the criminal charges filed against the defendant had sexual implications. The disorderly conduct charge was based on the defendant’s being found outside a window with his pants unzipped and in possession of a ski mask. The theft charge involved theft of telephone services, and the phone calls were of an obscene and sexual nature. Based on the record in this case, which includes a long history of sex offenses committed by the defendant, I agree with the majority’s disposition.

I disagree that the Sexually Dangerous Persons Act should be interpreted to apply when a defendant is charged with any criminal offense. Our supreme court in People v. Sims (1943), 382 Ill. 472, 47 N.E.2d 703, stated:

“This statute is to be construed as applying only to such crimes as tend to show a criminal sexual psychopathic condition in the accused. This is clearly the intent of the General Assembly.” Sims, 382 Ill. at 477.

The offenses charged clearly showed a criminal sexual psychopathic condition and, thus, the Act is applicable under the circumstances of this case.


author: JUSTICE GORMAN

text:
    DARRELL BUSICK, Plaintiff-Appellant, v. STREATOR TOWNSHIP HIGH SCHOOL DISTRICT No. 40 et al., Defendants (Melotte-Morse, Ltd., Defendant-Appellee).
    Third District
    No. 3—91—0900
    Opinion filed August 21, 1992.
    Rehearing denied October 8, 1992.

      Allison & Kelly, of Bloomington (William A. Allison and Frank M. Brady, of counsel), for appellant.
    Myers, Daugherity, Berry & O’Conor, Ltd., of Ottawa (Eugene P. Daugherity, of counsel), for appellee.
    Daniel K. Russell, of Johnson, Martin & Russell, P.C., of Princeton, for Streator Township High School District No. 40.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiff brought a slip-and-fall case against several parties, including the architect overseeing the project on which plaintiff was working. The trial court granted summary judgment to the architect, finding that the architect had no duty to the plaintiff. We affirm.

Darrell Busick was employed by Sentry Asbestos Abatement Company (Sentry). In 1988, Sentry was hired by Streator Township High School District No. 40 (Streator) to remove asbestos from the school building. Streator contracted with Melotte-Morse, Ltd. (Melotte), for the latter to provide the architectural services necessary for the removal of the asbestos.

At the school, Sentry had constructed a decontamination unit. This unit was made of plastic sheets taped to the walls. Its purpose was to confine any asbestos dust to that limited area during removal. This particular decontamination unit encompassed a flight of stairs.

As part of the removal process, the asbestos was constantly being wetted down. As a result, water was always present in the decontamination unit. In addition to the water hoses which ran through the decontamination unit, there were also air lines and electrical lines running along the floor of the unit. While working in such a unit, workers had to wear disposable paper clothing and shoes as well as a respirator.

On August 10, 1988, Busick slipped and fell on the stairs while in the decontamination unit. In the area where he fell, the plastic was sagging off the walls. This condition had been noticed earlier in the day by Melotte’s project manager, but no action had been taken to correct the situation.

Busick brought this action against several defendants, including Melotte. Melotte was granted summary judgment on the grounds that it owed no duty to plaintiff. Busick now appeals.

The first issue is whether Melotte’s contract gave rise to a duty to plaintiff. Plaintiff argues that this case is identical to Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630. The trial court disagreed and found that the contract does not give rise to a duty.

In Miller, a school was expanding its gym. As part of that process, several support columns had to be removed. As each beam was removed, the contractor temporarily shored up the roof with steel poles. The temporary columns were inadequate and the roof collapsed. The supreme court held that the architect did owe a duty to the injured workers. The court based this duty on the contract, which specifically gave the architect the right to stop work whenever necessary to insure proper execution of the contract.

This case is distinguishable from Miller. There, the unsafe condition was directly related to the architect’s area of expertise. The architect was hired to oversee the removal of the roof. The removal was done in an unsafe manner. The architect was in the best position to prevent the accident by supervising the method of shoring employed by the contractor. In addition, the architects in Miller had assumed the express contractual responsibility for general supervision of the construction means and techniques.

In this case, the accident was not related to the architect’s job functions or area of expertise. The architect was not required to control the overall safety of the jobsite. The contract between Sentry and Streator specifically made the contractor (Sentry) responsible for such precautions. The decontamination unit had been designed, constructed and maintained by Sentry. Moreover, the contract between Melotte and Streator also relieved Melotte of responsibility for such precautions and Melotte disavowed any responsibility for general supervision of construction means and techniques.

Here, Melotte had the power to stop “any job activities not performed in accordance with contract specification.” The subpar condition alleged by plaintiff is that the visqueen sheeting was sagging in the area where plaintiff fell. The dangerous condition, however, that would be created by the sagging plastic would be that asbestos fibers might migrate out of the decontamination unit, not that someone might slip on some water which would be present regardless of the condition of the sheeting.

Melotte’s obligation under the contract was simply to determine that the asbestos would be removed without causing a health risk. Melotte’s project manager was responsible for checking the containment areas and the decontamination units specifically for the narrowly defined purpose of seeing whether or not there was any asbestos release or potential for release. While he had the power to stop work if there was a danger of asbestos release, he was not empowered to stop work for all other potential safety hazards, such as the one which injured plaintiff. Neither the contract nor Miller gave rise to a duty owed to Busick on these facts.

Busick next argues that the Illinois Asbestos Abatement Act (Ill. Rev. Stat. 1991, ch. 122, par. 1401 et seq.), and the regulations promulgated thereunder, create a private cause of action, or at least define the standard of care owed.

We find that the Act does not create a private cause of action for this type of injury. The Act was designed to prevent potential health hazards caused by asbestos in school buildings. (Ill. Rev. Stat. 1991, ch. 122, par. 1402.) There is nothing in the Act which would imply that the legislature intended it to create a cause of action against an architect in a routine slip-and-fall situation.

In Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, the supreme court examined the Asbestos Abatement Act.. The court found that the Act does not create an implied cause of action in favor of schools against asbestos suppliers because the schools had adequate tort and contract remedies.

Similarly, here, Busick has available to him potential actions for negligence, Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) claims or worker’s compensation, any one of which could adequately compensate him for his injury. Even if the Act were to provide a private cause of action, it would not do so in this case. The purpose of the Act is to regulate the safe removal of asbestos, not to provide a remedy for a worker injured in a jobsite mishap.

The plaintiff was not injured by the asbestos or by anything which would even remotely fall under the Act. A slip and fall is not governed by the Act nor is it an evil which the Act sought to remedy. The Act creates no duty.

Finally, even if we accept plaintiff’s claim that he relies on the Act solely to delineate the standard of care, the result is the same. Since there was no duty in the first place, contractual or otherwise, there can be no corresponding standard of care.

For aforementioned reasons, we affirm the order of the La Salle County circuit court granting summary judgment in favor of MelotteMorse, Inc.

Affirmed.

BARRY, RJ., and HAASE, J., concur.


author: PRESIDING JUSTICE BARRY

text:
      In re ESTATE OF LENORA E. OSBORN, Deceased (Wanda Asplund et al., Plaintiffs-Appellants, v. James Osborn, Indiv. and as Ex’r of the Estate of Lenora E. Osborn, Deceased, et al., Defendants-Appellees).
    Third District
    No. 3—91—0302
    Opinion filed August 31, 1992.
    Rehearing denied October 14, 1992.

      Law Offices of John H. Bisbee, of Macomb (John H. Bisbee, of counsel), for appellants.
    Carl E. Hawkinson, of Barash, Stoerzbach & Henson, of Galesburg (Robert C. Stoerzbach, of counsel), for appellee James Osborn.
    Lyman R. Fort, of Fort & Neff, of Stronghurst, for appellee Rosetta Baptist Church.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Wanda Asplund, Carol Carlson, Gene Osborn, and Paul Osborn, plaintiffs in a suit to contest the will of their deceased mother, Lenora E. Osborn, appeal from summary judgment entered in the circuit court of Warren County in favor of their brother, defendant James (Jim) Osborn. At issue is the validity of a will executed by decedent about six weeks before her death while hospitalized during her final illness.

Pertinent facts taken from the depositions and affidavits which accompanied defendant’s motion for summary judgment and plaintiffs’ responses are as follows: Plaintiffs are the four oldest children of Hobart and Lenora E. Osborn, all of whom had declined to join Hobart in the family farming operation. Defendant Jim Osborn, the youngest son, did farm in partnership with his father all of his life, and as a result of their joint efforts, Hobart was able to acquire additional farmland with the profits from the farming operation. The farm bank accounts and land were in the name of Hobart Osborn alone until about 1974 when Jim acquired a parcel of farmland, known as the Noonan farm, in his name. Also, in 1978 Jim’s name was put on the title to a farm owned by Hobart, known as the Patterson farm.

In 1972, before Jim had acquired title to any farmland, Hobart and Lenora executed their wills. Hobart’s will provided that the home farm, known as the Gerlaw farm, was to pass to his wife Lenora and the Patterson farm to Jim. The will acknowledged that Jim had a one-half interest in the farm machinery, livestock, and unsold crops, and it then provided that Hobart’s one-half interest in the machinery was to go to Jim while his one-half interest in the livestock and unsold crops was to go to plaintiffs and his wife Lenora, with the remainder of his estate to be divided equally between Lenora, plaintiffs and Jim. Lenora’s new will provided that, in the event Hobart died before her, all her real estate would go to plaintiffs. Thus, Hobart and Lenora intended that Jim would have the Patterson farm as soon as Hobart died, while plaintiffs would have to wait until Lenora died to acquire the farm intended for them.

Hobart died in 1982, and Lenora and Jim were named coexecutors of his estate. At the time he died, he and Jim were in the process of acquiring a farm known as the Gridley farm by trading the Noonan farm and the Patterson farm. According to Jim, they intended to use the income from grain sales to pay off all their outstanding debts. Jim also stated that Hobart intended that title to the Gridley farm be in Jim’s name alone since the Patterson farm had been traded for it and the Patterson farm was to be Jim’s. Because Hobart died before the transaction was completed, plaintiffs claimed that the Gridley farm was a part of the estate and that they were entitled to their respective shares. Plaintiffs also claimed one-half the proceeds of sale of the grain in storage which Jim indicated was to be used to pay Hobart’s share of the partnership debts. (It appears that Hobart’s will disposed of his share of the grain on hand without providing for satisfaction of any unpaid expenses related to growing, harvesting, and storing that grain, thus placing the burden for those expenses on the remainder of his estate.)

Lenora tried to get the dispute settled and repeatedly asked plaintiffs to withdraw their claims. She instructed the attorney for the estate, David Hultgren, to inform plaintiffs’ attorney that she would change her will and disinherit plaintiffs if they did not settle their claim. Finally Lenora mortgaged the Gerlaw farm in order to pay each of the plaintiffs $25,000. Apparently plaintiffs were making additional demands in 1986 when Lenora was diagnosed as having cancer and was hospitalized on April 17 in Macomb. On April 25 she was transferred to Methodist Hospital in Peoria for radiation treatments. The treatments were not helpful and Lenora’s condition worsened rapidly. She continued to lose weight, to suffer a great deal of pain, and to become weaker. As the disease progressed, she became increasingly confused and disoriented.

Lenora executed the will at issue on June 3, 1986. The parties do not dispute the following facts related to that last will executed by her: While a patient in Methodist Hospital, Lenora was concerned that Hobart’s estate had not yet been closed and that plaintiffs had not agreed to a settlement. Lenora asked a family friend and neighbor, Keith Sanderson, to help her get a new will drawn. Sanderson, a retired attorney and associate judge, contacted a Peoria law firm on Friday, May 30, and explained to attorney Edwin Walker that Lenora was terminally ill and desirous of executing a new will.

Walker visited Lenora in the hospital on Monday, June 2, to ascertain what provisions she wanted in the will and to satisfy himself that she had testamentary capacity. At Lenora’s request, Sanderson contacted the persons Lenora wanted to be witnesses to the will (Mildred and Glenn Lipp of Gerlaw and JoAnn Hart of Monmouth), and Walker met with the witnesses on June 2 at Methodist Hospital and asked what they knew of the family situation and of Lenora’s wishes for a new will. The witnesses indicated that Lenora had repeatedly said she would give Jim her farm if plaintiffs would not discontinue their litigation against her and Jim. Walker also explained to the witnesses the requirements of testamentary capacity. Walker further ascertained by questioning that neither Sanderson nor any of the witnesses had any interest in Lenora’s estate.

Walker and the witnesses returned on Tuesday, June 3, at which time Walker questioned Lenora as to the date, the names of the witnesses, who her heirs were, and what property she owned. She answered correctly to all the questions, and after reading the will, she said that was what she wanted to do. She then signed the will followed by the signing of the witnesses. This new will provided for a $10,000 bequest to Rosetta Baptist Church and the bequest of her residence to plaintiffs. All the rest of her property she left to her son Jim, whom she named as executor. Walker stated that he never met or had any contact with Jim.

Other facts are in dispute, either by reason of direct contradiction or by inference. Although there is no direct evidence that Sanderson acted as agent for Jim in getting Lenora’s new will prepared, plaintiffs argue that such agency may be inferred from the evidence. In his 1990 deposition, Sanderson said that he had talked to Jim about the “family situation” approximately 40 to 60 times since 1982 and that he had mentioned to Jim that Lenora was having trouble getting her will changed. Sanderson insisted that he talked much more with Lenora than he did with Jim. In Jim’s deposition, he said that he only saw Sanderson three or four times per year and that he never had an in-depth discussion about the wills of his father and mother, although he admitted the subject might have been “casually mentioned” four or five times. Jim stated that he and Sanderson discussed farming, not legal matters, because Sanderson did not want to get involved.

Sanderson states that he did not tell Jim about the arrangements for the new will because he thought it was better for the beneficiary not to be involved. Jim also stated under oath that he did not know about the new will until after Lenora’s death. In one deposition, Jim was asked if he had ever talked to Sanderson about Lenora’s new will, and Jim answered, “No, because I don’t want to know anything.” Jim was then asked, “Why don’t you?” He responded, “Why would I want to know anything about that? I want to be totally dumb about it. I don’t want to know no names. I’m not going to look who signed that because I don’t know these people. I don’t even want that name in my head. Why would I want to know anything about that? If my mother did that and she wanted to do it and she asked somebody to help her, fine and dandy.”

Plaintiffs filed affidavits by Carol Carlson and Wanda Asplund which were stricken by the trial court but which are an issue on appeal. In her affidavit Carol asserted that she was a daughter of Lenora and Hobart Osborn and resides in Roseville, Illinois; that she and her sister Wanda Asplund visited their mother every other day in the hospital; that they visited their mother on Sunday, June 1, 1986, and intended to visit her again on June 3; that she had discussed her visiting schedule with her brother Jim; that Jim called her during the latter part of the day of June 2 and advised her not to visit on June 3 because the doctors were discontinuing some of Lenora’s treatment and it would be better for Lenora if she and Wanda did not come; that by reason of Jim’s call, she and Wanda did not visit Lenora on June 3; and that at no time during their visits did Lenora mention her will or estate plans. Wanda stated in her affidavit that she and Carol visited Lenora every other day in Methodist Hospital and also related certain resentments that Jim had communicated to her concerning the dispute involving Hobart’s estate.

In his deposition, Jim denied that he called Carol and advised her not to visit their mother on June 3. Jim also stated that he had no recollection as to whether he visited his mother on June 3 or not and that he does not keep a diary or calendar of appointments. He said that he visited his mother frequently, often early in the morning or late in the evening, especially during the planting season when he was busy with farm work.

According to Sanderson, after Lenora was in Methodist Hospital in Peoria he was informed by Jim that Lenora had made an appointment with the attorney for the estate, David Hultgren, to have a new will prepared. Sanderson stated that he learned from a call to Lenora that Hultgren had not kept his appointment and that he verified that with Jim. During Sanderson’s next visit, he decided to take some action himself since he believed Lenora would not live long and because she asked him to help her get her will changed. That was when he contacted attorney Edwin Walker.

In David Hultgren’s deposition, he stated that he visited Lenora in the hospital in Peoria once during May but that the visit was purely social and the making of a new will was not discussed. He recalls Lenora telling him to be certain that plaintiffs’ attorney knew that she would change her will if Hobart’s estate were not settled. He stated that Lenora never gave him directions to prepare a new will and that she did not make an appointment for him to come to the hospital. He indicated that he began to campaign for State representative in April of 1986 and did not practice law on a full-time basis thereafter. He said he did not know Lenora had changed her will until after she died.

Also before the trial court were the nurses’ notes from Lenora’s hospital charts for June 2 and 3. On June 2, the attending nurse charted the following entries:

grand
“0830 — Refused breakfast, /son in room.
grandson
0900 — Valium withheld per /pt’s request so pt. would be as alert as possible.
* * *
1400 — Pt. visiting with lawyer ***
1715 — Lawyer here, visiting with Pt.”

Lenora’s medication chart for June 2 indicated that Darvocet-N was refused by her grandson and that Valium was withheld “per son’s request.” On June 3 the nurse noted at 1000, “Tired and weak today. Lawyer and family here.” At 2000, the nurse noted, “Confused off and on. Asks about her son in hall.” The nurse who cared for Lenora during the morning of June 2 is deceased. Depositions were taken of the other nurses who attended her, but none of them had any independent recollection of Lenora’s family or other visitors for the days of June 2 and 3. Nurse Amy Parks, who cared for Lenora during the 3 to 11 p.m. shift on June 3, testified that Lenora’s son “was there a lot” during her illness.

Plaintiffs have provided affidavits from 8 of Lenora’s 10 grandsons in which each swears that he did not visit Lenora on June 2 or 3. There was no affidavit from Brian Osborn, Jim’s son, but he testified in his deposition that he visited Lenora in Methodist Hospital only on Thursday, May 29, 1986. There was nothing under oath from the remaining grandson, Peter Osborn.

The attending physician in Peoria, Dr. Michael Veeder, stated in his deposition that his progress notes for Lenora disclose that he found her alert on June 1, 2, and 3. On June 4, he noted that she was depressed. On the basis of his notes, Dr. Veeder stated that he would assume that Lenora knew who her children were, what property she owned, and what she wanted to do with it. Dr. Veeder noted a decline in her general condition beginning June 8,1986.

In granting defendant’s motion for summary judgment, the trial court ruled that affidavits of Carol Carlson and Wanda Asplund should be stricken. Those paragraphs relating to the affiants’ visits to Lenora were stricken because they set forth events which took place in the presence of the decedent and, therefore, violated the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201). Other paragraphs setting forth conversations between the affiants and Jim were stricken because they were not material to the issues of testamentary capacity and undue influence. The court also ruled that there was no question of fact that decedent had testamentary capacity when she signed the June 3 will and that there was no question of fact regarding whether Jim participated in the procurement, preparation, or execution of the June 3 will. Later the trial court denied plaintiffs’ motion to reconsider with a ruling that plaintiffs have failed to provide any competent evidence to show that Jim procured the will.

On appeal plaintiffs contend that the trial court erred (1) in granting summary judgment on the testamentary capacity claim; (2) in striking the affidavits of Carol and Wanda for violation of the Dead Man’s Act; and (3) in granting defendant’s motion for summary judgment on the undue influence claim.

TESTAMENTARY CAPACITY

Testamentary capacity requires that the testator have sufficient mental ability to know and remember the natural objects of her bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator’s mind. (In re Estate of Wrigley (1982), 104 Ill. App. 3d 1008.) Evidence of physical impairment standing alone is insufficient to establish a lack of testamentary capacity. (Manning v. Mock (1983), 119 Ill. App. 3d 788, 457 N.E.2d 447.) The burden is on the party asserting the lack of testamentary capacity to prove it. In re Estate of Bonjean (1980), 90 Ill. App. 3d 582.

Here we have clear and credible evidence from the witnesses to the will, the attorney who drew the will, and Judge Sanderson that on June 3, 1986, Lenora knew who her heirs were, understood what property she owned, and had devised a plan of disposition which was consistent with repeated statements made before her illness. This direct testimony is corroborated by her doctor. The nurse’s notation that she was weak and tired in the morning of June 3 describes her physical condition, not her mental capacity, and the note of some confusion at 10 p.m. on June 3 did not contradict the testimony of her mental alertness at 10 a.m. the same day. Where, as here, the witnesses clearly establish that testator had the requisite mental capacity to make a will, summary judgment on that issue is proper. (In re Estate of Kietrys (1982), 104 Ill. App. 3d 269.) Since there is no genuine issue of material fact concerning Lenora’s testamentary capacity when she signed her will on June 3, 1986, we hold that summary judgment was properly entered on that issue.

DEAD MAN’S ACT VIOLATION

The portions of the affidavits of Carol Carlson and Wanda Asplund that were stricken for violation of the Dead Man’s Act were those paragraphs stating that Carol and Wanda made it a practice to visit Lenora at Methodist Hospital every other day, that they had visited her on Sunday, June 1, and intended to visit her on Tuesday, June 3, and that during their visits Lenora never discussed her will.

The trial court also ordered stricken those portions of the affidavits relating Jim’s alleged phone call to Carol on June 2 telling her not to visit Lenora on June 3. The court ruled those statements are not relevant or material to the issues of this case involving testamentary capacity and undue influence. Although plaintiffs have not argued on appeal that this portion of the court’s ruling was erroneous, they do argue that the affidavits are intended to show that Jim knew of the pattern of their visits and that he acted to prevent them from being at the hospital on the day Lenora was to sign a new will. Plaintiffs then contend that an inference can be drawn that Jim participated in procuring the new will.

The Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201) provides in part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased *** [with certain exceptions not here relevant].”

The last paragraph of both affidavits purported to state that Lenora never conversed about her will or estate during visits by her daughters at Methodist Hospital. In our view, a statement that a particular subject was never discussed violates the statutory prohibition against testifying to any conversation with the deceased, and the trial court correctly ruled that these statements must be stricken.

The remaining portions of the affidavits at issue here are those concerning events, i.e., the dates of visits to the hospital. The current Dead Man’s Act does not impose a general rule of incompetency on adverse parties or interested persons, but rather bars such parties and persons from testifying concerning conversations with decedent and events occurring in decedent’s presence. Manning v. Mock (1983), 119 Ill. App. 3d 788, 457 N.E.2d 447.

Plaintiffs argue that they offer the evidence of visits to Lenora, not to show the truth of the statement that they made the visits, but to show that they communicated a pattern of visits to Jim and that he dissuaded them from going on June 3. They insist that communication to Jim of the pattern of visits does not constitute an event occurring in Lenora’s presence and could not have been refuted by Lenora. Defendant argues that the testimony that they visited Lenora in an every-other-day pattern and that they visited her on June 1 and were due to return on June 3 were all matters which Lenora could have refuted.

In our view, testimony that Jim was told that hospital visits took place according to a certain pattern is not the kind of evidence which the Dead Man’s Act was intended to bar. Plaintiffs do not rely upon any conversations or occurrences happening in the course of those visits. We conclude that the trial court erred in striking the affidavits of Carol Carlson and Wanda Asplund with the exception of the last paragraph of each affidavit (relating what decedent did not discuss), both of which were properly stricken.

UNDUE INFLUENCE

Plaintiffs contend that the evidence in the affidavits and depositions before the court presented a disputed question of material fact as to whether Jim exercised undue influence upon Lenora sufficient to avoid the June 3 will.

The legal standard in such a case is as follows:

“Undue influence which will avoid a will must be directly connected with the execution of the will itself, must operate when the will is made, must be directed toward the procuring of the will in favor of a particular person, and be such as to destroy the freedom of the testator’s action, thereby making the instrument more the result of the will and intent of another than that of the testator himself. [Citations.] No inference of undue influence arises from decedent’s age and physical and mental condition ***. Undue influence cannot be established merely by inference, though circumstances may tend to do so. [Citation.] Nor can undue influence be inferred from the provisions of the will in defendant’s favor, inasmuch as a testator may distribute his estate as he pleases ***.” Hockersmith v. Cox (1950), 407 Ill. 321, 325-26, 95 N.E.2d 464, 467.

Accord In re Estate of Lemke (1990), 203 Ill. App. 3d 999.

Plaintiffs admit that there is nothing in the record to indicate that Jim directly participated in the preparation of Lenora’s will or that he personally procured its preparation. Sanderson was the active participant, not Jim. Plaintiffs insist, however, there is an issue of fact as to whether an inference could be drawn that Sanderson acted as the agent of Jim in arranging the preparation of the new will. In Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 566, 361 N.E.2d 134, 137, this court noted that presence of the beneficiary at the execution of the will is not necessary to establish undue influence if secret influences were used against the testator by the one procuring the will. Plaintiffs argue that it is possible to infer that Jim’s influence here was carefully concealed but was nonetheless exercised by and through Sanderson.

Plaintiffs rely upon certain contradictions in the evidence to support their theory that Sanderson was acting as agent in behalf of Jim when he contacted attorney Walker and arranged for witnesses for the execution of the will. Plaintiffs point to the following: (1) affidavits of Carol Carlson and Wanda Asplund indicating that Jim asked his sisters not to visit Lenora on their regular visiting day of June 3, contradicted by Jim’s deposition stating that he did not make such a request; (2) Sanderson’s testimony that he discussed Lenora’s will with Jim, contradicted by Jim’s statement that he never discussed her will with Sanderson; (3) Sanderson’s testimony that he talked to Jim about his “family situation” 40 to 60 times between 1982 and 1990, contrary to Jim’s testimony that he only saw Sanderson three or four times per year and rarely discussed his family matters; and (4) Sanderson’s testimony that Jim told him Lenora had made an appointment with attorney Hultgren while she was hospitalized in Peoria for the purpose of preparing a new will, contradicted by Hultgren’s statement that Lenora never asked him to prepare a new will.

If these contradictory statements were submitted to a trier of fact, if every contradiction were found in favor of plaintiffs, and if every reasonable inference were drawn in favor of plaintiffs, there would be no evidence to support plaintiffs’ theory that Sanderson acted as Jim’s agent. The affidavits and depositions in the record on appeal can be construed to disclose a question of fact as to whether Jim knew that Sanderson was arranging for Lenora to have a new will prepared, but that does not give rise to an inference that Sander-son was acting on behalf of Jim rather than Lenora. Most significant here is the absence of any evidence contradicting Sanderson’s statements that Lenora asked him to help her get a new will drawn.

The procedures followed by attorney Walker were carefully intended to verify that Lenora was exercising her own free will, that she was fully competent to execute a will, and that the proposed disposition of her property was rational. It would be hard to find fault with the way Walker proceeded, given the circumstances of this case. Lenora had two opportunities to disclose any doubts she might have had — once on June 2 when Walker met with her alone to discuss what she wanted in her will and again on June 3 when he gave her the will and made certain that was what she wanted to do in front of three friends who had been selected by her to be witnesses. Sanderson was not present either time.

The most that plaintiffs can show is that Sanderson discussed with Jim the family dispute involving the disposition of Hobart and Lenora’s property and also the provisions of Lenora’s 1972 will. Since there is considerable evidence that Lenora considered Sanderson a trusted friend and that she discussed the family dispute with many of her Mends, some such discussions between Sanderson and Jim would be reasonable under the circumstances. However, no one has testified to any conversation or event which would give rise to an inference that Sanderson acted pursuant to authority from Jim, not Lenora, in arranging for her 1986 will. Instead, the evidence is uncontradicted that Lenora’s new will was prepared at her request, according to her directions, and in conformity with her stated desire to see that Jim was treated fairly.

Plaintiffs rely on a will contest case where there was no evidence that the beneficiaries of the will, had personally procured the will and where we held that evidence of direct and indirect participation in the estate plans of the testatrix was sufficient to permit an inference that the beneficiaries were instrumental in procuring the will. There we ruled that the case should be tried to resolve the conflicts in the evidence and to draw necessary inferences. (In re Estate of Dossett (1987), 159 Ill. App. 3d 479, 512 N.E.2d 807.) That case can be readily distinguished from the case before us here.

In Dossett, the beneficiary of the contested will had a power of attorney and took care of decedent’s business, thus having a fiduciary relationship to decedent. Here, there was no evidence that Jim was Lenora’s fiduciary or that he dominated her in any way. Lenora managed her own business matters right to the end, even to the point of signing the check to pay attorney Walker for his services in preparing her will. In Dossett, the plaintiff was decedent’s sister and the beneficiaries under the will were not related to the decedent. Here, the beneficiary is the son of decedent who would not have benefitted under her 1972 will. Also, Lenora believed that Jim had not received what he was entitled to under Hobart’s will and that plaintiffs had obtained more than Hobart had intended them to have.

Finally, in Dossett there was no evidence as to what transpired at the time the will was executed or that anyone determined that the will represented the desires of decedent; furthermore, there was some evidence that the decedent had complained earlier that defendants were pressing her to change her will in their favor. Here, we have clear and undisputed evidence that Lenora made her wishes known to Sanderson on May 30, to Walker on June 2, and to Walker and the witnesses on June 3. Numerous persons verified that the June 3 will carried out a plan which Lenora had considered and discussed for a long period of time. Hence, Dossett does not apply to the case at bar.

The trial court here found that plaintiffs had failed to produce evidence that Jim Osborn procured Lenora’s new will, either directly or indirectly through Sanderson, and we conclude that the record supports the finding of the court. Even considering the erroneously stricken affidavits, we hold that summary judgment in favor of defendant was properly granted.

Reversed in part; affirmed in part.

McCUSKEY and GORMAN, JJ., concur.