author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACEO WILLIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2301
    Opinion filed June 21, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Mark Stein, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Elissa Rhee-Lee, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, Maceo Willis, was found guilty of the unlawful restraint, kidnaping, aggravated kidnaping, and aggravated criminal sexual assault of Latanya Whitfield and was sentenced to an extended term of 60 years’ imprisonment for aggravated criminal sexual assault and an extended term of 30 years’ imprisonment for aggravated kidnaping. Defendant appeals both his conviction and sentence. He maintains that: (1) he was denied a fair trial because the circuit court allowed the State’s Attorney to introduce evidence of other crimes; (2) the instruction that the circuit court gave to the jury regarding other-crimes evidence did not adequately define the purpose for which the jury could consider the evidence; (3) the State’s Attorney misstated the law regarding the use of other-crimes evidence; (4) the circuit court improperly considered victim impact statements made by Latanya Whitfield and Susan Hatcher in imposing sentence; (5) he was improperly sentenced on four counts of aggravated criminal sexual assault even though there was only one act of aggravated criminal sexual assault; and (6) he was improperly sentenced to an extended term of 30 years’ imprisonment for aggravated kidnaping. For the reasons stated below, we affirm defendant’s conviction of aggravated criminal sexual assault and aggravated kidnaping, and the sentence imposed by the circuit court for aggravated criminal sexual assault. However, we reduce the sentence imposed by the court for aggravated kidnaping.

A summary of the evidence adduced at trial follows.

At 4 p.m. on Saturday, November 10, 1984, Latanya Whitfield was in front of her home at 5818 S. Bishop in Chicago. She heard a noise, turned, and saw defendant standing four feet away. Defendant was holding a black gun, with a four-inch barrel. He said to her “I need your help.” She asked him if he wanted her purse. He said “No.” He then told her “This is a .38. You move, I’ll kill you.” He instructed her not to look at him and made her walk to an abandoned building about one minute away. He forced her down the stairs of the building and pushed her to her knees. He then pulled her to her feet and told her to remove her clothes. When she refused to do so, he hit her twice in the neck. Again, he ordered her to remove her clothes. She pulled down her blue jeans and her panties. He picked her up and sat her on a stump 2V2 feet high. He told her to open her legs and hit her knees when she refused. She then opened her legs but he told her to open them wider. She told him that she could not. He then pulled her legs open. He told her not to move and to stop crying. He unzipped his pants, placed his penis in her vagina, and ejaculated. He fixed his pants, told her not to move, and left.

Latanya was taken to St. Bernard’s Hospital, where she was examined by a doctor and vaginal specimens were collected. Latanya described her assailant to the police as a tall, heavily built, dark-skinned black, in his thirties, with a beard and sideburns, wearing black pants, a black leather jacket which came down to his thighs, a black knit hat, and black sunglasses. On February 11, 1985, Latanya viewed a lineup of five black men and identified defendant. She testified at trial that she identified defendant because she recognized his face, and not because of his coat or his hat.

Rick Roberts testified that on April 1, 1985, he was assigned to the serology unit of the Chicago police department crime laboratory. He received a Vitullo evidence collection kit for Latanya Whitfield which was prepared at the hospital emergency room. He examined the vaginal specimens and found that they were positive for the presence of spermatozoa.

It was stipulated that Dr. Schaeffer of St. Bernard’s Hospital collected sperm swabs from Latanya Whitfield. He placed the swabs in a container which he then sealed. The swabs were delivered to the crime laboratory and remained in the sealed container until the container was opened by Rick Roberts.

Sharon Lee testified that she worked at Sola Electric from 1982 until 1985. Defendant also worked at Sola Electric during this time period. Defendant wore hats, dark sunglasses and a three-quarter-length black leather coat to work. During the period from October 1984 until February 1985, defendant did not have any hair and wore hats, including tight-fitting knit hats. Defendant had a beard and sideburns and periodically varied the length of the beard. On cross-examination, Sharon testified that Sola Electric employs over 200 employees, and she did not work in the same room as defendant.

Susan Hatcher testified that she lives at 6833 S. Lafflin in Chicago. At 11:45 p.m. on Saturday, October 6, 1984, she was returning home from a party where she had had one glass of wine to drink. She was carrying a bookbag containing her purse and a knife. She was four houses away from her home when she saw defendant come out of an alley on the east side of the street, cross the street and enter the alley on the west side of the street. She stopped under the streetlight near the alley on the east side of the street to search for her knife. Defendant came up to her and told her not to look at him. He grabbed her arm when she started to run. He had a dark gun with a three- or four-inch barrel in his hand. He told her that she could not outran a .45 caliber and forced her to walk through various alleys to a garage at 67th and Bishop. The garage did not have a door and was illuminated by a light in the alley. Defendant pointed the gun at her stomach and told her to take off her clothes and throw them on the floor. After she complied with his order, he removed his sunglasses for a second and looked at her body. He then replaced his sunglasses and asked her why he should not kill her. She told him that she had a baby to take care of. He then forced her to lie down, he unbuttoned his pants, and took down his jocks. He placed his hand in her vagina and told her he was looking for a weapon. He then penetrated her vagina with his penis and ejaculated. After the act of intercourse, he asked her if she had any money. She lied and told him that she did not have any. He did not search her bookbag for the money. He told her that he should kill her and she begged him not to. He then left and went back to the alley.

Susan contacted the police two days after the incident. She described her assailant as a dark-skinned black male in his thirties, 6 feet 1 inch tall, 180 to 190 pounds, with a full beard, sideburns and a moustache, wearing a black knit skull cap, a three-quarter-length leather jacket, khaki pants, boots, and dark sunglasses. On February 11, 1985, Susan viewed a lineup of five black men and identified defendant. On cross-examination, Susan testified that she was told in late October 1984 that she has a cataract in her left eye. However, she can see despite the cataract.

Kathy Chatman testified that on February 9, 1985, she lived at 5533 S. Peoria in Chicago. She was returning home from work at 11 p.m. when she saw a man running toward her. She ran into her backyard, fell on the stairs leading to the back door, looked back and saw the man standing by the stairs. He had his hands outstretched in front of his body and he said something that she did not hear. She then screamed for her mother, who came to the back door along with Kathy’s brother-in-law.

Kathy described the man who ran after her as a black man, 6 feet tall, wearing a three-quarter-length leather jacket. On February 11, 1985, Kathy viewed a lineup of five black men. She did not identify defendant positively.

Wilbur Brent is Kathy Chatman’s brother-in-law. On February 9, 1985, he was at home at 5533 S. Peoria. At approximately 11 p.m. he heard a scream coming from the back porch. He ran out of the house and saw defendant standing by the back fence. Defendant started running and Brent chased him to Peoria street. He was three feet away from defendant when defendant turned to him and said “Don’t come no farther or I’ll blow you away.” Wilbur testified that he did not see a gun in defendant’s hands. However, he gave up the chase.

Wilbur described the man that he chased as a black man, in his thirties, 6 feet 1 inch tall, 180 to 200 pounds, with a beard and a moustache, wearing a black leather coat which came down below his hips and a black skull cap. He identified defendant in a lineup on February 11,1985.

William Chatman, Kathy’s father, testified that he was home on February 9, 1985. At approximately 11 p.m., Kathy came into the house, screaming that a man was chasing her. He went outside and saw Wilbur Brent chasing defendant. Wilbur stopped at the corner of 55th and Peoria. William, however, continued the chase. He saw defendant run toward a car. He positioned himself in front of the car. Defendant entered the car and drove toward him. He moved out of the way and noted the car’s license plate number.

William described defendant to the police as a black man, 6 feet 1 inch tall, 180 to 200 pounds, with a beard and moustache, wearing a dark-colored, three-quarter-length leather or vinyl jacket, and a dark skull cap. He later identified defendant in a lineup.

Officer Ernest Bell of the Chicago police department testified that William Chatman gave him defendant’s license plate number. He traced the car to defendant, contacted him at Sola Electric and transported him to the police station. Defendant was wearing a three-quarter-length leather jacket at the time of his arrest. On February 11, 1985, defendant participated in a lineup and was identified by Wilbur Brent, Susan Hatcher and Latanya Whitfield.

Delores Pastrana and Robert Wilkins, friends and co-workers of defendant, testified that defendant has a very good reputation at Sola Electric. Mary Williams, defendant’s common law wife, testified that defendant is not a violent person. She further testified that defendant never wears skull caps.

Defendant testified that in March 1981, he was released from prison, where he had served time for the rapes of five women. From 1982 until the day of his arrest, he lived with Mary Williams and her four children in Mount Prospect. However, he visited his parents at 10231 S. Wallace in Chicago almost every Saturday. Defendant testified that he does not own any skull caps or a three-quarter-length leather coat and he denied raping Latanya Whitfield or Susan Hatcher.

Defendant further testified that on February 9, 1985, he was driving around Halsted and 55th when he thought he saw someone he knew. He called her name, waited for traffic to clear and turned in the direction she was walking. When she saw him turn, she ran down the street and cut across an empty lot. He went down an alley and stopped his car. He exited his car and went across the street to see if he could see her. He then saw a group of men approaching from his left. He got in his car and left.

On cross-examination, defendant testified that, on the day of his arrest, he was wearing a black leather jacket which reached to the top of his leg. He also testified that he is a marksman but he does not own a gun.

DISCUSSION

TESTIMONY OF SUSAN HATCHER

Prior to trial, defendant made a motion in limine to bar the testimony of Susan Hatcher. The circuit court found several factors common to the rape of Susan Hatcher and the rape of Latanya Whitfield. The court believed that these factors were indications of modus operandi and allowed the testimony of Susan Hatcher for purposes of identification. On appeal, defendant maintains that the circuit court erred in allowing Susan Hatcher to testify. We disagree.

It is well settled that evidence of the commission of other crimes is admissible when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. Phillips (1989), 127 Ill. 2d 499; People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59; People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) It is also well settled that while similarity is essential to admittance of evidence of other crimes, the test is not one of exact, rigorous identity. (People v. Phillips, 127 Ill. 2d at 520-21; People v. Richardson (1988), 123 Ill. 2d 322, 339, 528 N.E.2d 612.) Furthermore, the decision to admit evidence of other crimes is within the sound discretion of the trial court, and its determination will not be disturbed on review absent abuse of discretion. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334; People v. Anderson (1982), 108 Ill. App. 3d 563, 570, 439 N.E.2d 65.

On review of the record, we find that the similarities were sufficient to warrant admission of Susan Hatcher’s testimony at trial. Susan was attacked as she returned home alone late on a Saturday evening, Latanya was attacked as she returned home alone late on a Saturday afternoon. In each instance, the assailant used a black handgun. Each woman was told the caliber of the gun and that she would be shot if she attempted to escape. Each woman was also told not to look at the assailant. Latanya was forced to walk to an abandoned building, and Susan was forced to walk to an abandoned garage. Neither woman was robbed even though Latanya offered her purse to the assailant and Susan had money in her bookbag. In each instance, the assailant wore a three-quarter-length leather jacket, a black knit hat and dark sunglasses. Latanya and Susan gave similar descriptions of the assailant to the police and identified defendant in a lineup. Lastly, the rapes took place within a five-week period and within a 10-block area on the south side of Chicago.

Defendant asserts that in order to establish modus operandi there must be “factors of a distinctive nature to earmark the crime as the handwork of one man.” He argues that the rapes of Latanya Whitfield and Susan Hatcher were not so distinctive as to earmark them as the work of one person. In People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470, the Illinois Supreme Court noted that distinctive links could be found with evidence which indicated that a defendant was “using similar weapons, dressing the same, acting with the same number of people, or even [using] a distinctive method of committing this particular offense.” (People v. Tate, 87 Ill. 2d at 142.) Also, in People v. Phillips (127 Ill. 2d at 522), the court noted that the list given in People v. Tate was “not meant to be all-inclusive or limiting on the trial court’s weighing and balancing of similarities and dissimilarities.” In the instant case, the record amply supports the circuit court’s opinion that there were distinct areas of similarities between the rapes of Susan Hatcher and Latanya Whitfield.

Defendant next argues that Susan Hatcher’s testimony was not probative of any fact in issue, and was, therefore, inadmissible. As noted above, it is within the sound discretion of the trial judge to determine whether the evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. (People v. Fuller, 117 Ill. App. 3d at 1036.) The circuit court determined that Susan Hatcher’s testimony was relevant to the issue of the identity of Latanya Whitfield’s assailant. Upon review of the record, we cannot conclude that the circuit court abused its discretion. See People v. Richardson, 123 Ill. 2d at 339; People v. Pavic (1982), 104 Ill. App. 3d 436, 442, 432 N.E.2d 1074, overruled on other grounds People v. Pettit (1984), 101 Ill. 2d 313; People v. Carter (1981), 98 Ill. App. 3d 720, 723, 424 N.E.2d 367.

TESTIMONY OF CHATMANS AND BRENT

Defendant maintains that the circuit court erred in allowing Kathy Chatman, William Chatman and Wilbur Brent to testify at trial. However, defendant failed to object to the testimony at trial. Also, defendant failed to raise this issue in his motion for a new trial. In order to preserve an issue for review, a defendant must make an objection at trial and must raise the issue in the motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), _U.S. _, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Accordingly, defendant has waived any alleged error regarding the admission of the testimony of the Chatmans and Brent.

We are also of the opinion that review is not required under the plain error doctrine because the evidence of defendant’s guilt was overwhelming. (People v. Enoch, 122 Ill. 2d at 198.) The record shows that defendant transported Latanya Whitfield to an abandoned building at gunpoint. He there forced her to have sexual intercourse with him. Latanya testified that she was able to observe defendant’s face on several occasions. She described defendant to the police and identified him in a lineup. There was also testimony regarding the presence of spermatozoa in vaginal specimens taken from Latanya. Additionally, the testimony of Susan Hatcher was probative of the identity of Latanya’s assailant.

JURY INSTRUCTION

Defendant maintains that the jury was not properly instructed on the use of other-crimes evidence. He argues that the instruction given to the jury failed to “distinguish between the relevance of modus operandi as it bears on identity and the impermissible supposition of propensity.” He claims that “[ijnstead of weighing whether or not the method of working was so similar that one man committed both crimes, or [sic] juror would merely think that if the defendant attacked Ms. Hatcher he probably attacked Ms. Whitfield too.”

Initially, we note that defendant did not object to the instruction and failed to raise the alleged error in his motion for a new trial. Thus, defendant has waived the alleged error. (People v. Richardson, 123 Ill. 2d at 344-45.) However, defendant argues that he was denied a fair trial because of the use of the instruction, and we will review the issue on appeal.

In People v. Richardson, the defendant argued that Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.14), which had been given to the jury, “improperly assumed the probative value” of other-crimes evidence and “thereby precluded the jury from determining the probative value of crucial evidence.” The defendant argued that the jury should have been instructed to compare the characteristics of the other-crimes and the crime for which he was being tried and instructed to “determine whether the offenses were sufficiently similar to permit a reciprocal inference of identity.” The Illinois Supreme Court rejected this argument. The court noted that, in addition to IPI Criminal 2d No. 3.14, the jury had been instructed to determine the weight to be given to the testimony of each witness. (Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981).) The court observed that “[t]he duty to evaluate the weight and credibility of the testimony of each witness includes the duty to evaluate the weight and credibility of the identification testimony.” (People v. Richardson, 123 Ill. 2d at 345.) Viewing these instructions together, the court found that “the jury was properly instructed regarding the other-crimes evidence; there most certainly was not a substantial defect by which defendant was denied due process.” People v. Richardson, 123 Ill. 2d at 345.

In the present case, the jury was also instructed to evaluate the weight and credibility of the testimony of each witness. Thus, the jury was entrusted with the duty to evaluate the weight and credibility of the identification testimony. There is no evidence that the jury failed to evaluate the weight and credibility of the other-crimes testimony. Nor is there any evidence that the jury assumed that since defendant attacked Susan Hatcher he probably attacked Latanya Whitfield. Therefore, we are of the opinion that defendant was not denied a fair trial.

PROSECUTOR’S COMMENT

During closing argument, the State’s Attorney remarked:

“[Ejvidence has been received that the Defendant has been involved in offenses other than that charged in the Indictment. This evidence has been received solely on the issue of the Defendant’s identification.
* * *
This evidence may be considered by you only for the limited purpose for which it was received. Now, that’s referring to the incident involving Susan Hatcher and Kathy Chatman. Okay. You’re not going to receive verdicts to decide guilt or innocence on those two cases. All you’re going to do is take the information you have received, the circumstances surrounding those incidents, and use those to determine whether or not on the night of November 10th, of 1984, this guy was the one who raped Latanya Whitfield.”

Defendant suggests that the State’s Attorney was asking the jury to convict on the basis of propensity to commit crimes. According to defendant, the State’s Attorney told “the jury that if defendant committed those crimes he probably committed [the crimes for which defendant was on trial] too.” To the contrary, we believe that the State’s Attorney was cautioning the jury to use the other-crimes testimony only for purposes of identification. The State’s Attorney was not implying that the jury should convict defendant because defendant had a propensity to commit crimes.

Even if we assume that the State’s Attorney’s remark was error, we believe that the error was cured by the circuit court when it gave IPI Criminal 2d No. 3.14 to the jury. The jury was instructed to use the other-crimes testimony solely on the issue of the defendant’s identification.

VICTIM IMPACT STATEMENTS

Latanya Whitfield and Susan Hatcher prepared victim impact statements which were submitted to the circuit court by the State’s Attorney at the sentencing hearing. Defendant maintains that the circuit court should not have considered the statements in imposing sentence because: (1) Susan Hatcher was not a “victim” and did not have the right to make a victim impact statement; (2) Latanya Whitfield and Susan Hatcher were not present at the hearing and were not subject to cross-examination; and (3) the victim impact statement prepared by Susan Hatcher was irrelevant.

Initially, we note that defendant did not object to the introduction of the statements at the sentencing hearing and failed to raise the issue in his motion for a new trial. Therefore, defendant has waived the issue for review. (People v. Israel (1989), 181 Ill. App. 3d 851; People v. Lewis (1988), 165 Ill. App. 3d 97, 111, 518 N.E.2d 741.) However, defendant claims that he was denied a fair sentencing hearing because of the introduction of the statements, and we will review the issue on the merits.

Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) provides:

“In any case where a defendant has been convicted of a violent crime *** and a victim of the violent crime is present in the courtroom at the time of the sentencing or the disposition hearing, the victim upon his or her request shall have the right to address the court regarding the impact which the defendant’s criminal conduct *** has had upon the victim.”

Defendant was not convicted for any crime committed against Susan Hatcher. Consequently, Susan Hatcher did not have a statutory right to present a victim impact statement to the circuit court. Moreover, Susan Hatcher was not present at the sentencing hearing, and the record does not contain any indication that she asked the court to consider her statement.

Nevertheless, while Susan Hatcher was not entitled by statute to present the statement to the court, the State did have the right to submit the statement to the court pursuant to section 5 — 4— 1(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 4—1(a)(3)). That section provides that the court shall “consider evidence and information offered by the parties in aggravation and mitigation.” Susan Hatcher’s statement was offered by the State and was a part of the State’s presentation of evidence in aggravation. (People v. Keyes (1988), 175 Ill. App. 3d 1013, 1017, 530 N.E.2d 708; see also People v. Estrella (1988), 170 Ill. App. 3d 292, 294-96, 524 N.E.2d 707.) The statement was relevant to sentencing as it related to defendant’s criminal history. (People v. Richardson, 123 Ill. 2d at 362; People v. Wallace (1986), 145 Ill. App. 3d 247, 254, 495 N.E.2d 665 (in sentencing hearing for aggravated criminal sexual assault of complainant, the trial court could properly consider evidence that defendant would have sexually assaulted another woman if he had been able to enter her house).) The statement was also reliable since Ms. Hatcher prepared the statement and had firsthand knowledge of the information contained therein. See People v. Wallace (1988), 170 Ill. App. 3d 329, 332-33, 425 N.E.2d 677.

Section 5 — 4—1(a)(6) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 4—1) provides that at the sentencing hearing the court shall:

“(6) afford the victim of a violent crime *** the opportunity to make a statement concerning the impact on the victim and to offer evidence in aggravation or mitigation ***. Any sworn testimony offered by the victim is subject to the defendant’s right to cross-examine.”

Defendant maintains that this section supports his contention that he had a right to cross-examine Latanya Whitfield and Susan Hatcher at the sentencing hearing. We disagree. Section 5 — 4—l(aX6) affords the victim of a crime the right to make a statement to the trial court if the victim so desires. However, the section does not apply to evidence that is presented by the State at the sentencing hearing. (People v. Keyes, 175 Ill. App. 3d at 1017.) Where a victim impact statement is submitted to the court by the State’s Attorney at the sentencing hearing, it is considered to be a part of the State’s presentation of evidence in aggravation. (People v. Keyes, 175 Ill. App. 3d at 1017.) The statements prepared by Latanya Whitfield and Susan Hatcher were relevant and reliable and could have been considered by the circuit court in imposing sentence. See People v. Keyes, 175 Ill. App. 3d at 1017; People v. Wallace, 170 Ill. App. 3d at 332-34 (victim need not be present before a sentencing court can consider the impact on her as presented in the form of a written statement); see also People v. Israel, 181 Ill. App. 3d 851 (prosecutor was allowed to read victim impact statement into the record).

SENTENCING-AGGRAVATED CRIMINAL SEXUAL ASSAULT The mittimus contains the following provision:

“Honorable Robert L. Sklodowski, sentence the defendant to a term of 60 yrs on the counts 1, 5, 11, & 12 Aggravated Criminal Sexual Assault (extended term) ***.”

Defendant relies upon the mittimus in support of his contention that the circuit court mistakenly believed he was guilty of four counts of aggravated criminal sexual assault, and, consequently, imposed a longer sentence.

It is established that a mittimus is not part of the common law record. (People v. Anderson (1950), 407 Ill. 503, 505, 95 N.E.2d 366; People v. Mays (1988), 176 Ill. App. 3d 1027, 1043, 532 N.E.2d 843.) Thus, defendant cannot predicate any assignment of error upon the mittimus. (People v. Allen (1971), 1 Ill. App. 3d 197, 272 N.E.2d 296.) However, even if the mittimus were considered a part of the record, it would be of no avail to defendant. The judgment of the court is the authority for the detention of a prisoner, and it is the rule that in case of variance between the language of commitment and the judgment, the latter will prevail. (People v. Anderson, 407 Ill. at 505; People v. Mays, 176 Ill. App. 3d at 1043; People v. Miles (1983), 117 Ill. App. 3d 257, 259, 453 N.E.2d 68.) The circuit judge indicated that he was sentencing defendant on only one count of aggravated criminal sexual assault. The court stated:

“Therefore, for the protection of the public, due to the wilfull [sic] and wanton, heinous nature of your crimes, the other aggravating circumstances presented at this hearing, and due to your past criminal history I hereby sentence you to sixty years, Department of Corrections, the extended term sentence on your conviction for the aggravated criminal sexual assault, and thirty years extended terms sentence on the aggravated kidnapping charge, concurrent with each other. Credit for any and all time served thus far.
All other charges and judgments entered on the record will be merged therein.”

The language of the court prevails over the language of the mittimus. The mittimus will be amended to reflect conviction and sentencing on only one count of aggravated criminal sexual assault. See People v. Ammons (1983), 120 Ill. App. 3d 855, 458 N.E.2d 1031; People v. Nard (1975), 32 Ill. App. 3d 634, 335 N.E.2d 790.

SENTENCING-AGGRAVATED KIDNAPING

The State concedes that it was error to sentence defendant to an extended-term sentence of 30 years for aggravated kidnaping, a Class 1 felony, when defendant had been convicted of a greater offense, the Class X felony of aggravated criminal sexual assault. (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569.) Accordingly, we reduce defendant’s sentence of 30 years for aggravated kidnaping to 15 years, the maximum sentence permissible without imposition of an extended term. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1; People v. Jordan, 103 Ill. 2d at 215; People v. Knight (1985), 139 Ill. App. 3d 188, 196, 486 N.E.2d 1356, cert. denied (1987), 480 U.S. 905, 94 L. Ed. 2d 518,107 S. Ct. 1346.

CONCLUSION

For the aforementioned reasons, we affirm defendant’s conviction for aggravated criminal sexual assault and aggravated kidnaping. We affirm defendant’s sentence of 60 years for aggravated criminal sexual assault, and we reduce defendant’s sentence for aggravated kidnaping to 15 years. The mittimus is to be corrected as set forth herein.

Affirmed as modified.

FREEMAN, P.J., and RIZZI, J., concur.

      The jury was instructed as follows:
      “Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of the defendant’s identification. This evidence may be considered by you only for the limited purpose for which it was received.” Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981).

      Aggravated kidnaping other than for ransom is a Class 1 felony. Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1977 AND PRIOR YEARS (Lorraine Shek, Plaintiff-Appellant, v. Edward J. Rosewell, Treasurer, as Trustee of the Indemnity Fund, Defendant-Appellee).
    First District (3rd Division)
    No. 1—87—1297
    Opinion filed June 21, 1989.

      Barry E. Burke, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Mark R. Davis, and Kevin P. Burke, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Lorraine Shek (Shek), appeals from a judgment of the circuit court, after a bench trial, which dismissed her petition for indemnity from the treasurer of Cook County pursuant to the provisions of section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 728a) for the loss of title to her property by reason of the issuance of a tax deed.

The record indicates that plaintiff owned land located at 11801 South Wallace in Chicago, which plaintiff purchased in 1975. On February 14, 1979, Michael LaPat purchased the property at the Cook County collector’s annual tax sale, after plaintiff failed to pay a portion of the general real estate taxes for the year 1977. During 1980, plaintiff filed a bankruptcy proceeding, which was dismissed by the bankruptcy court. On December 9, 1982, plaintiff filed a Chapter 13 bankruptcy petition. The petition listed LaPat as a creditor who was to receive monthly payments of $80 on a debt of $316.75.

On January 21, 1982, LaPat filed an application for issuance of a tax deed under the Revenue Act. LaPat’s petition listed the expiration date of the period of redemption as January 7, 1982. On or about April 26, 1982, LaPat’s motion to stay the order of the bankruptcy court regarding Shek’s Chapter 13 petition was granted by the bankruptcy court. On January 9, 1984, after a hearing in the circuit court of Cook County, an order was entered granting LaPat’s petition for a tax deed and directing the Cook County clerk to issue a tax deed in the name of LaPat. The tax deed was duly recorded.

During 1982 and 1983, Shek made payments to the bankruptcy trustee as required under the Chapter 13 plan. None of the payments due LaPat were made. On or about January 9, 1984, plaintiff received notice of the tax sale. Plaintiff filed the instant action on December 3, 1984. The matter was tried before Judge Wachowski on March 27, 1987. At trial, plaintiff was the only witness.

Plaintiff testified that she was a high school graduate and had taken a real estate course. She was employed as a certified nurse’s assistant. Previously she worked as an inspector for ITT. Plaintiff testified that twice, once in 1977 and again in 1980, fire damaged the building on her property and she rebuilt and restored the structure. After the property was damaged in 1977, plaintiff paid the mortgage on the property through an escrow account. Plaintiff testified that when she paid the mortgage, she believed the taxes also were being paid. While doing the repair work on the property, plaintiff sometimes stayed in the basement of the building and otherwise lived with her ex-husband in Des Plaines. Plaintiff also testified that at some point, she spoke with LaPat about redeeming her property, but that LaPat told her that it was too late.

Documentary evidence, including a schedule of creditors from plaintiffs Chapter 13 proceeding and an estimate by the Cook County collector of the cost of redemption from the tax sale, was admitted at trial. Both of these documents were dated December 9, 1981. The estimated cost of redemption was $708.10.

At trial plaintiff’s counsel argued, among other things, that plaintiff mistakenly believed that the stay of the bankruptcy proceeding would toll the period of redemption. Plaintiff’s counsel asserted that whether the stay would toll the redemption period was an issue of first impression in the Federal court, and therefore, the parties could not rely on established case law regarding the outcome of the case.

In dismissing plaintiff’s petition, the trial court stated that plaintiff was advised in time of the tax sale but failed to take action to redeem the property. The court found that plaintiff’s failure to redeem was due to plaintiff’s own negligence.

On appeal, plaintiff contends that the trial court’s decision is contrary to the manifest weight of the evidence. Plaintiff contends that the trial court failed to find that she acted wilfully in failing to redeem her property. Plaintiff asserts that she did not receive notice of the tax sale until 1982. Further, she asserts that she was under the impression that her tax problems were being rectified through the Chapter 13 proceedings and debt payment arrangements. Plaintiff also spoke with LaPat, the purchaser, in an effort to redeem her property. Further, plaintiff argues that she is the type of “unsophisticated property owner” which the Revenue Act is designed to protect. She had some difficulty with handling the repairs on the damaged property while commuting to Des Plaines. In addition, after the property was destroyed by fire and plaintiff used insurance settlement money to satisfy the mortgage, plaintiff believed that the balance of her tax debt also was being paid, since she made payments to the bank through an escrow account.

The portion of the statute relevant to the instant case provides that a land owner, “who without fault or negligence of his

own,” loses title to his property through issuance of a tax deed is entitled to indemnity for the loss. (Ill. Rev. Stat. 1987, ch. 120, par. 728a(5).) In construing the meaning of “without fault or negligence,” the court in Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, 357 N.E.2d 559, directed that

“a party need not be totally blameless, but the person claiming the asserted right must not have purposely failed in a duty or engaged in conduct that materially contributed to the problem complained of. We emphasize that each case must be decided on its own facts.” (Garcia, 43 Ill. App. 3d at 517.)

In Garcia, the court held that the petitioner’s failure to redeem her property after a tax sale did not constitute fault or negligence under the Act. In so holding, the court found that prior to the running of the redemption period, a third party fraudulently represented to the petitioner that he already owned the property. In addition, the petitioner had a reduced capacity to handle her business affairs since she had a dying husband and their nine children to care for during the time in which the property could have been redeemed. Garcia, 43 Ill. App. 3d at 517.

Plaintiff cites In re Application of Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App. 3d 212, 456 N.E.2d 221, for the proposition that the statute is to be construed liberally to award indemnity where equity requires an award. The cited case, however, is distinguishable from the instant case since, in the cited case, the court found that administrative errors interfered with the petitioner’s attempted redemption of the property. (In re Application of Cook County Treasurer, 119 Ill. App. 3d at 215.) There were no such administrative errors in the instant case.

Plaintiff also cites In re Application of County Collector (1978), 59 111. App. 3d 494, 375 N.E.2d 553 (Korzen). In Korzen, the appellate court reversed the finding of the trial court that the petitioner was “without fault or negligence” in failing to redeem her property. The trial court found that the death of the petitioner’s husband resulted in her being the sole owner of the property; that her husband had always taken care of the couple’s business matters; and that she was “psychotic” at the time of her husband’s death and subsequently. In holding that the trial court’s decision was contrary to the weight of the evidence, the appellate court stated that the evidence showed the petitioner was educated, had taken courses in real estate, and had paid the taxes on the property previously. The court found that the petitioner’s failure to act, after twice receiving notice to redeem her property, was due to apparent indifference or a wilful failure to act. Korzen, 59 Ill. App. 3d at 499.

Finally, plaintiff cites In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 482 N.E.2d 161, in which the appellate court affirmed the trial court’s denial of indemnity to the petitioner. The issue in the cited case, however, focused on the language of section 247a that allows for indemnity where the court finds the petitioner “equitably entitled to just compensation.” (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).) Those provisions are not pertinent to the instant case. The court in In re Application of Kane County Collector did, however, touch on the issue raised in the instant case to the extent that it found that the petitioner’s awareness of her responsibilities and ability to handle her business affairs supported its decision that she was not equitably entitled to indemnity. In re Application of Kane County Collector, 135 Ill. App. 3d at 808.

The trial court’s judgment, in the instant case, may not be overturned unless it is against the manifest weight of the evidence. (In re Application of the County Collector v. Korzen (1978), 59 Ill. App. 3d 494, 375 N.E.2d 553.) A judgment is against the manifest weight of the evidence if it appears that conclusions, contrary to those reached by the trier of fact, are clearly evident. (In re Application of Cook County Collector (1988), 174 Ill. App. 3d 981, 529 N.E.2d 570.) Plaintiff presented evidence that she was burdened with rebuilding the structure on the subject premises and traveling between the subject premises and the apartment in Des Plaines. She also believed that her taxes were taken care of by means of her filing a bankruptcy petition and making payments through an escrow account at her bank.

In view of the entire record, however, we find the trial court’s determination, that plaintiff’s failure to redeem her property was due to her own negligence, is supported by the weight of the evidence. Therefore, we agree with the trial court that plaintiff was not entitled to indemnification under the Act and the judgment denying her relief was properly entered.

First, plaintiff had a high school education and had taken a course in real estate. She was the sole owner of the subject property for a number of years prior to the tax sale. Further, the record fails to support her assertion that she did not receive notice of the tax sale to LaPat until 1982, after the period of redemption expired. Rather, plaintiff introduced into evidence the estimate of redemption document from the tax sale, which was dated December 9, 1981, and reflected an expiration date for the period of redemption of January 7, 1982. Further, plaintiff’s Chapter 13 schedule of creditors was filed on December 9, 1981, before expiration of the redemption period, and listed LaPat, the purchaser, as a creditor. These documents support the conclusion that plaintiff was aware of the tax sale prior to the January 2, 1982, expiration date for redemption. Further, the record fails to indicate specifically that plaintiff was relying on a stay of the bankruptcy proceeding to extend the period of redemption. In short, the record indicates that plaintiff’s failure to redeem her property was due to her own negligence or inadvertence.

In addition, we note that there was no fraud in the instant case as was present in Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, 357 N.E.2d 559. Rather, the instant case is more factually similar to Korzen, in which the petitioner had notice that the taxes were not paid, but failed to take action to redeem the property. In view of our findings, we are compelled not to disturb the judgment of the trial court.

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

Judgment affirmed.

WHITE and CERDA, JJ., concur.


text:
    LESLIE SELIGMAN, Plaintiff-Appellee and Cross-Appellant, v. FIRST NATIONAL INVESTMENTS, INC., et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    No. 1—88—2703
    Opinion filed June 21, 1989.

      Paul W. Grauer, of Schaumburg (Jane Miller Brennan, of counsel), for appellants.
    Vojta & Laguttuta, P.C., of Schaumburg (John C. Vojta, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Leslie Seligman, filed a second-amended complaint, consisting of 13 counts, against defendants, Amr A. Effat, Shashikant S. Patel, real estate brokers, and First National Investments, Inc. (FNI), their real estate agency. In the first two counts, plaintiff alleged defendants’ breach of a contract to sell him certain real estate in Palatine, Illinois. In the remaining 11 counts, plaintiff alleged defendants’ common law fraud and violation of the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.) in that transaction. After a bench trial, the trial court entered judgment for plaintiff, in the amount of $5,000, against Patel and FNI on counts I and II. The trial court also dismissed counts III through XIII with prejudice. Lastly, the trial court dismissed defendants’ counterclaim with prejudice. Patel and FNI appeal the judgment against them and plaintiff cross-appeals the dismissal of counts III through XIII of his second-amended complaint.

On August 18, 1986, plaintiff was shown the property at 1165 Tern in Palatine, Illinois, by Beverly Schuler, an agent for FNI. Thereafter, plaintiff and Schuler returned to the FNI offices. Before leaving for another appointment, Schuler introduced plaintiff to Effat. According to plaintiff, when he told Effat that he was willing to offer $150,000 on the Tern property, Effat informed him that he would have to offer $165,000 because there was a prior offer on the property. Effat admitted that plaintiff might first have offered $150,000 on the Tern property but claimed that plaintiff wrote $165,000 as the purchase price in the contract. Plaintiff also testified that Effat, who knew plaintiff wanted to resell the property after repairing it, informed him that the property could sell for $225,000 if repaired. Effat claimed he told plaintiff the property could sell at an. unspecified higher price if repaired. Effat also admitted that Patel, his partner, had made an offer to purchase the Tern property from Deborah Macaluso on August 16, 1986, that the offer was outstanding on August 18, and that it was accepted on August 22.

As a result of their conversation, Effat prepared a form real estate contract containing plaintiff’s offer of $165,000. The contract provided for an earnest money deposit of $5,000 and a closing date of September 15. In the space providing “BROKERAGE FEE: Seller shall pay a brokerage fee as agreed in the listing agreement to,” “As agreed to [FNI]” had been printed. Under the “TITLE” clause, the contract provided: “Title, when conveyed, shall be good and merchantable.” Under “GENERAL CONDITIONS” on the back of the contract, the “EVIDENCE OF TITLE” clause provided:

“Seller shall deliver or cause to be delivered to Purchaser or Purchaser’s attorney not less than five days prior to the time of closing as evidence of title in Seller or Grantor, one of the following:
(a) Owner’s Duplicate Certificate of Title *** or certified copy thereof ***.
(b) A title insurance policy or commitment for title insurance ***. ***
Every certificate of title, title insurance policy or commitment for title insurance furnished by Seller shall be conclusive evidence of good and merchantable title as therein shown ***.”

Notwithstanding the representation in the contract regarding the brokerage fee, Effat admitted that FNI did not have any listing agreement with Macaluso. Effat also admitted that the contract did not reflect that Patel was attempting to purchase the Tern property on August 18 and that he did not otherwise inform plaintiff of that fact. Plaintiff paid the $5,000 in earnest money within a few days of August 16.

Patel accepted plaintiff’s offer by signing the contract on August 23. A few weeks after plaintiff signed the contract, he testified, Schuler told him that Effat’s statement as to the value of the Tern property after repairs was too high because he had compared the property to property in a subdivision with homes of higher value than the Tern property. Plaintiff learned that Patel did not hold title to the Tern property when he received a commitment for a title insurance policy from the Chicago Title Insurance Company. He received the title insurance policy about three months after he signed the contract. The parties stipulated at trial that Patel never had any interest in the property.

After hearing all the evidence, the trial court found that: (1) Patel “failed to show good and merchantable title as per the terms of the contract”; (2) plaintiff did not sustain his burden of proof regarding counts III through XIII; and (3) Patel and FNI did not sustain their burden of proof regarding their counterclaim. The trial court entered judgment accordingly.

Opinion

On appeal, Patel and FNI contend that the trial court erred in finding that Patel breached the contract with plaintiff in that he did not show good and merchantable title to the Tern property. The fact that a vendor does not hold title to real estate at the time he enters a contract to convey it, they assert, does not constitute a breach of contract. Citing Leaf v. Barton (1980), 91 Ill. App. 3d 373, 414 N.E.2d 909, defendants argue that, to meet his obligation under a contract, a vendor need only be in a position to tender title to the vendee at the time specified in the contract. Patel and FNI conclude that it was never required that Patel hold title to the property since the time specified for tender of title never arrived, because plaintiff failed to tender the purchase price.

We begin our analysis with the definition of a merchantable title. It is a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person, one which such persons, guided by competent legal advice, would be willing to take and for which they would be willing to pay fair value. (Sinks v. Karleskint (1985), 130 Ill. App. 3d 527, 474 N.E.2d 767.) However, this definition is merely a starting point. The determination of merchantability also depends to a great extent on construction of any contract provisions relating, either explicitly or implicitly, to that issue.

Under the contract at issue, plaintiff agreed that the seller would deliver “or cause to be delivered” to plaintiff evidence of title in the seller or “[g]rantor.” Moreover, the evidence of title in the seller or the grantor, which plaintiff agreed to accept, included a commitment for title insurance. In addition, plaintiff agreed that such evidence would be conclusive evidence of the title reflected therein. Lastly, under the “EVIDENCE OF TITLE” clause of the contract’s general conditions, the seller was required, if requested, to execute a “customary form of affidavit of title.”

These contract provisions significantly affected what was to be regarded as “good and merchantable title” under the contract. Plaintiff agreed to accept, as evidence of such title, a title commitment reflecting title in Patel or his grantor. Having done so, he could not allege a breach of contract on the basis merely that the title- commitment did not reflect title in Patel. Even if plaintiff was concerned that Patel would not hold title at the time of conveyance, we believe that he was required to proceed to a closing in order to establish his breach of the contract by failure to tender a merchantable title. We so hold inasmuch as Patel was not required to convey a merchantable title until the closing under the contract. Moreover, if, at that time, plaintiff suspected that Patel’s title was not merchantable, he could have required him to execute an affidavit of title as well as the warranty deed by which the conveyance was to be accomplished, as provided in the paragraph relating to the closing date. The provision for such an affidavit also affected what was to be regarded as a good and merchantable title by the parties.

Supportive of our construction of the contract here is Heller v. McGuin (1914), 261 Ill. 588, 104 N.E. 158. Therein, in contracting to convey property, of which he was possessed without having the record title, the plaintiff agreed to convey a good merchantable title by warranty deed. When the vendee refused to perform under the contract, the vendor sued for specific performance. The vendee defended his failure to perform on the grounds, inter alia, that, as the vendor was not the owner of the record title when the contract was made, he could not, by acquiring title later, enforce the contract against the vendee. In rejecting this argument the court stated:

“The contract was essentially one of a party obligating himself, within a certain time, to sell property he did not own at the time he made the contract, but the fact that at the time it was made [vendor] was not in a position to perform *** is not con-elusive that it was not capable of enforcement when he did, within the time fixed, become able to perform.” Heller, 261 Ill. 2d at 592.

While Heller was a case of specific performance, the rationale of the court clearly reveals that, contrary to plaintiff’s position, Patel was not in breach of the contract merely because the evidence of title revealed that he was not the record owner of the Tern property.

Moreover, in contrast to the contract here is the contract in Geithman v. Eichler (1914), 265 Ill. 579, 107 N.E. 180. In Geithman, Alfred and May Eichler had contracted to sell real estate by a contract providing, inter alia, that title was to be shown in Alfred Eichler by October 15, 1912, and that the grantors would deliver a good and merchantable abstract of title on March 1, 1913. On the eventual closing date, the vendees claimed that the title which the vendors intended to convey did not comply with the contract. On appeal, the vendors contended that the contract bound them to convey fee simple title to the land by warranty deed but not to furnish an abstract showing such title in them of record, or as the court otherwise stated, an abstract showing merchantable title in them. In deciding the issue, the court stated:

“As we construe the agreement, [vendors] were bound not only to convey to [vendees], by warranty deed, a good title free from encumbrances, but they were required to show by October 15, 1912, that they owned such title, and by March 1, 1913 *** they were to furnish [vendees] an abstract showing merchantable title in them. *** [Vendors’] agreement required them to convey to [vendees] a good and merchantable title, and it seems clear to us the intention of the parties was, from the language used, that the abstract should show they owned and were able to convey the kind of a title they had agreed to convey to [vendees].” Geithman, 265 Ill. at 583-84.

Unlike the contract in Geithman, the contract in this case cannot reasonably be construed as requiring that the evidence of title, supplied the vendee pursuant to the contract, show merchantable title in one person and only one person: the seller.

Additionally, Christopher v. West (1952), 345 Ill. App. 515, 104 N.E.2d 309, which plaintiff cites in support of the proposition that ownership of property is a requirement to show merchantable title, actually supports the conclusion that the evidence of title supplied under the contract is not necessarily conclusive of whether a merchantable title may be subsequently shown. Christopher states that “ ‘[a] merchantable title is not necessarily a perfect record of title, without fault, defect or omission, but whenever an abstract, together with explanatory affidavits, shows a person to have an indefeasible title in fee simple, whether acquired by deed, devise or by virtue of the Statute of Limitations, then such abstract shows a merchantable title.’ ” (Emphasis added.) Christopher, 345 Ill. App. at 530-31, quoting Bedinger v. May (1926), 323 Ill. 187,191.

Christopher thus recognizes the validity of supplementing the evidence of title provided, under a contract to convey, with an affidavit of title to show that the person conveying the property has merchantable title to it at the time of conveyance. In citing Christopher, plaintiff ignores that it allows such title to be shown through the documentary evidence of title and any “explanatory affidavits.”

Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081, and Madigan v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431, which plaintiff cites in support of his contention that defendants breached the terms of the contract at issue here, are of no avail to plaintiff.

In Crum, the defendant vendor was unable to fulfill his contractual duty to convey property by virtue of his failure to obtain the signatures of the other owners of the property on the contract at the time of closing. The appellate court relied on the rules that the grantor of real estate need not have title to property at the time the contract is made and that it is the promise to convey title that is the basis of the contract. The appellate court held that .the contract was nonetheless enforceable against the defendant and that he breached it. In contrast to the situation in Crum, defendants do not concede, nor does the record reveal, that Patel would have been unable to convey title to plaintiff when the time to do so under the contract arrived. .

Admittedly, as the parties stipulated at trial, Patel never had title to the Tern property. However, as plaintiff apparently chose to consider the contract breached upon receiving the title commitment rather than to proceed to the closing of the contract, we cannot say, unlike the situation in Crum, that Patel breached his contractual duty to convey a good and merchantable title at that time. As plaintiff did not continue his performance by requiring Patel to close the contract, Patel was not required to obtain title to the Tern property in order to satisfy his contractual obligations.

In Madigan, a land trust beneficiary contracted to convey the trust res, as its owner, and sought damages for the vendees’ breach of the contract. The court held that a land trust beneficiary could contract to sell the trust res only by exercising her power of direction over the trust either explicitly or by disclosing the trust and her status as beneficiary. Madigan turned on the attributes of the Illinois land trust and the relationship of the beneficiary and trustee thereunder to the trust res and is thus totally inapposite to this case. There is no support whatever in Madigan for the proposition for which plaintiff cites it, i.e., that unless a vendor, under a contract to convey real estate, discloses at the time of contracting that he is not the title holder he will be in breach of the contract.

Neither do the remaining cases cited by plaintiff compel the conclusion that Patel breached the contract merely because the title commitment did not show merchantable title in him.

Lastly, plaintiff attempts to avoid the rule stated in Leaf on the ground that Patel could meet his obligation to tender title to the Tern property only by defendants’ use of plaintiff’s funds, which, he asserts, required his consent. This “apples and oranges” argument is unavailing to plaintiff. That defendants used plaintiff’s earnest money as the earnest money on Patel’s contract with Macaluso, while perhaps giving plaintiff a cause of action for conversion, does not make the rule stated in Leaf inapplicable here. A wrongful conversion by defendants of plaintiff’s earnest money was totally unrelated to whether Patel breached the contract with him by failing to show a merchantable title as required under the contract.

In summary, the evidence merely showing that Patel did not hold title to the Tern property, when the title commitment was delivered to plaintiff, did not prove that Patel did not hold, and thus could not convey, a good and merchantable title when he was required to do so under the contract, i.e., at the time of closing. The trial court’s judgment for plaintiff on counts I and II of the second-amended complaint was thus against the manifest weight of the evidence. In view of this conclusion, we need not consider whether, as defendants next contend, the trial court erred in entering judgment against FNI because it was not a party to the contract with plaintiff.

Plaintiff cross-appeals the trial court’s dismissal, after trial, of counts III, IV, VII, VIII, X, and XIII of his second-amended complaint. The trial court dismissed all but counts I and II of the second-amended complaint after finding that plaintiff had not sustained his burden of proof thereon. Therefore, the applicable standard is whether what amount to verdicts for defendants on these counts were against the manifest weight of the evidence.

Plaintiff contends that the trial court erred in dismissing counts III, IV and X, which alleged causes of action for common law fraud against each defendant based on their alleged misrepresentations that Patel owned the Tern property.

To prove a claim of common law fraud, a plaintiff must show (1) a false statement of material fact; (2) known or believed by the maker to be false; (3) made for the purpose of inducing reliance thereon; (4) justifiable and actual reliance thereon; and (5) injury. See, e.g., Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052.

After reviewing the record, we cannot conclude that the trial court’s verdicts for defendants on counts III, IV, and X were against the manifest weight of the evidence.

Count III alleged that Patel falsely signed the real estate contract as the owner of the Tern property. While plaintiff’s offer to purchase the Tern property was addressed to “Owner of Record,” it was Effat who wrote that term on the contract. Moreover, immediately after the space in which this term was handprinted, “(Seller)” was preprinted on the form. Thereafter, the form contract referred only to “Seller” in all of its substantive provisions, including the lines provided for acceptance of the offer to purchase, on which Patel’s signature appears.

In addition, appended to the form contract was an attorney’s approval rider. On this rider, “Seller is Licensed Real Estate Broker in 111.,” was printed below Patel’s signature. Plaintiff denied that the rider contained that notation when he signed it on August 18. However, it is undisputed that Patel did not sign the contract until five days after plaintiff signed. Thus, the notation on the rider tended to disprove the allegation that Patel signed as the owner of the Tern property, whether or not the notation was there when plaintiff signed it. Under all the evidence on the issue, we cannot say that the manifest weight of the evidence reveals that, in accepting plaintiff’s offer to purchase by signing a contract referring in all but one place to the “Seller,” Patel represented himself to be the owner of the Tern property.

Count IV alleged that an unnamed agent of FNI with whom plaintiff met on August 18 told him that Patel owned the Tern property. Because count X alleged that Effat misrepresented that Patel owned the Tern property, the only agent of FNI to whom count IV could have referred was Beverly Schuler. However, neither plaintiff nor Schuler testified that she told plaintiff that Patel owned the Tern property. As such, there was absolutely no proof of the most material allegation of count IV. Manifestly, the trial court’s verdict for FNI on count IV was not against the manifest weight of the evidence.

The evidence was conflicting with respect to the allegation in count X that Effat told plaintiff that Patel owned the Tern property. While plaintiff claimed at trial that Effat did tell him that Patel owned the Tern property, Effat denied making the statement. Therefore, we cannot say that the trial court’s verdict for Effat on count X was against the manifest weight of the evidence.

Plaintiff also contends the trial court erred in dismissing counts VII, VIII, and XIII of his second-amended complaint.

Counts VII, VIII and XIII alleged that defendants violated the Consumer Fraud Act in that they: (1) misrepresented the value of the Tern property both before and after any repairs by plaintiff; and (2) failed to disclose to plaintiff that Patel: (a) was a real estate broker associated with FNI; (b) did not own the Tern property; and (c) was attempting to purchase it at a lower price than plaintiff offered. Plaintiff alleged in these counts that he was damaged in that he had not received his earnest money, lost profits as to a successful transaction and sustained less than $15,000 in other consequential damages. He prayed for judgment in that amount plus costs, punitive damages and attorney fees.

Section 2 of the Consumer Fraud Act outlaws, inter alia, unfair or deceptive acts or practices including the misrepresentation, concealment or omission of any material fact with the intent that others rely on such misrepresentation,, concealment or omission in the conduct of any trade or commerce whether or not any person is in fact misled, deceived or damaged thereby. (Ill. Rev. Stat. 1985, ch. 121½, par. 262.) Section 2 applies to misrepresentations by real estate brokers to prospective purchasers. (Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448.) Moreover, a plaintiff suing under the Consumer Fraud Act need not establish all of the elements of common law fraud. Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267.

With regard to defendants’ alleged misrepresentations of the value of the Tern property, there was absolutely no evidence of any statements by defendants of the value of the Tern property before any repairs. Moreover, as to the only alleged statement of any defendant as to the value of the property after repairs, plaintiff did not prove the sine qua non of a claimed misrepresentation actionable under the Consumer Fraud Act, viz., that it was, in fact, false. That is, even conceding, as proven facts, that Effat represented to plaintiff that the Tern property would be worth $225,000 after repairs and that he improperly based this representation on a comparison with properties of higher values, plaintiff introduced absolutely no evidence of the true value of the property after repairs. It was incumbent upon plaintiff to do so in order to meet his burden of proving that Effat’s representation was a misrepresentation. As such, we cannot reverse the trial court’s verdicts on counts VII, VIII and XIII, in this regard, as against the manifest weight of the evidence.

However, the manifest weight of the evidence does reveal, as plaintiff next alleged in these counts, that defendants failed to disclose that Patel was: (1) a real estate broker associated with FNI; (2) not the owner of the Tern property; and (3) attempting to purchase it at a lower price than plaintiff offered.

There can be no doubt, on the record before us, that all defendants knew, at the time plaintiff signed the contract at issue, that Patel was: (1) associated with FNI; (2) not the owner of the Tern property, although he shortly thereafter represented himself to plaintiff as the seller of the property; and (3) attempting to purchase it from Deborah Macaluso. Neither can it be disputed on the record that no defendant disclosed these facts to plaintiff before Patel accepted his offer to purchase the Tern property as the seller. Further, defendants do not dispute that nondisclosures of such facts by real estate brokers constitute violations of the Consumer Fraud Act. Nor could they seriously do so.

Real estate brokers occupy a position of trust with respect to the purchasers with whom they negotiate. They owe a corresponding duty to exercise good faith and to disclose any personal interest in property they list for sale. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 386, 432 N.E.2d 849.) This, Effat admitted, he did not do. Sawyer Realty Group held that the failure of real estate brokers to disclose such self-dealing to a prospective purchaser of property gave rise to a private right of action for violation of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.). Logically, it also constitutes consumer fraud. The trial court’s findings for defendants on counts VII, VIII and XIII were against the manifest weight of the evidence with respect to these three latter allegations.

For all of the foregoing reasons, we: (1) affirm the trial court’s judgment for defendants on counts III, IV and X of plaintiff’s second-amended complaint; (2) reverse the judgment for plaintiff on counts I and II of the second amended complaint; (3) reverse the judgment for defendants on counts VII, VIII and XIII of the second-amended complaint; and (4) remand the cause for a new trial on counts VII, VIII and XIII.

Affirmed in part; reversed in part and remanded.

WHITE and CERDA, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBBIE BLOMMAERT, Defendant-Appellant.
    Third District
    No. 3—88—0525
    Opinion filed June 9, 1989.
    — Modified on denial of rehearing July 11, 1989.

      Schenk, Duffy, Quinn, McNamara, Phelan, Carey & Ford, Ltd., of Joliet (Joseph R. Mazzone, of counsel), for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Debbie Blommaert, was charged with first degree murder (111. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2)) following the death of her adopted baby, Amy, who was nearly 10 months old at the time of her death. When Amy was admitted to the hospital on October 12, 1987, she was suffering from hemorrhaging within her skull. She lapsed into a coma and died four days later. The defendant was convicted following a jury trial and was sentenced to a 20-year term of imprisonment. She appeals her conviction, and we affirm.

Much of the medical testimony presented at trial was conflicting, and the record in this case is voluminous. Accordingly, the summation of the relevant proceedings and evidence is of necessity somewhat lengthy.

Prior to trial, the court heard extensive arguments regarding the admissibility of certain evidence of alleged prior abuse Amy suffered. Counsel discussed numerous bruises and scars and how they might have been sustained, as well as a collarbone fracture which the baby suffered at the age of 16 weeks. The court ruled that the evidence would not be admissible unless the State was able to show that the defendant inflicted the injury.

Deputy Gary Kraemer of the Will County sheriff's office testified that he interviewed the defendant on October 14, 1987. The defendant told Kraemer that she and her husband adopted Amy on March 23, 1987, and that the baby was healthy at that time. She told him that the baby had recently been crabby and vomited several times. She stated to the witness that on October 12, at approximately 3 or 4 in the afternoon, she and the baby were in the kitchen about 10 feet from one another and the baby pulled herself up to a kitchen chair. Amy began chewing on a tie which secured the seat cushion to the chair. Next, the defendant told Kraemer, she heard the baby cry, looked over, and saw her lying on her back on the kitchen floor. Kraemer stated that the defendant told him she did not hear or see the baby fall. At this time, the defendant’s husband was at work and the defendant’s four-year-old son was outside playing. The defendant indicated to Kraemer that she took the baby into the family room, and Amy became quiet.

Kraemer further testified that the defendant told him her husband arrived home at 4:15 or 4:30. He checked the back of Amy’s head at the defendant’s request and after she explained that the baby had fallen earlier, but neither of them felt anything unusual. At approximately 7:30 that evening, Kraemer was told in the interview, the baby became limp and apparently lost consciousness as the defendant carried her downstairs after changing her diaper. After the defendant and her husband unsuccessfully attempted to revive Amy, they called their neighbor, who was a nurse. The neighbor continued resuscitative efforts until Amy was transported to the hospital.

Dr. Mitra Kalelkar, an assistant Cook County medical examiner who performed an autopsy on Amy, also testified. She stated that she noted the existence of several fresh bruises on Amy’s face, left buttock, and back. In her opinion, the bruises occurred approximately four to five days before the baby died, and only two of them might have occurred as a result of medical treatment such as cardiopulmonary resuscitation (CPR).

Dr. Kalelkar further testified that during the autopsy, she discovered the baby had two hemorrhages in the subgaleal area, that is, in the inner scalp. The larger hemorrhage measured 2Vz inches in diameter and the smaller hemorrhage measured one inch in diameter, and they were located in the occipital region, which is in the back of the head, toward the neck area. The witness testified that blunt trauma caused each hemorrhage, but that they were separate injuries and resulted from separate blows.

Dr. Kalelkar testified that beneath the larger subgaleal hemorrhage, she then discovered a lineal vertical skull fracture measuring seven-tenths of an inch in the left occipital bone. She indicated that in her opinion, the fracture was caused by the same blow or blows that caused the larger hemorrhage. After the baby’s skullcap was removed by an autopsy technician, Dr. Kalelkar observed a large, fresh subdural hemorrhage on the right side of the brain, toward the back. She also observed an older subdural hemorrhage at the base of the skull on the right and left sides of the brain. She explained that the subdural space lies between two of the membranes covering the surface of the brain. The doctor testified that the baby’s injuries were consistent with the head being in motion and striking a stationary object, and further stated that the baby died as a result of cranial cerebral injuries which were sustained as a result of blunt trauma. During the witness’ testimony, slides taken before and during the autopsy were shown, and the witness pointed out the injuries. Dr. Kalelkar testified that in her opinion, based on a reasonable degree of medical certainty, a nine-month-old baby sustaining a backwards fall to a tile floor would not sustain a skull fracture and subdural hematomas such as Amy did. Finally, Dr. Kalelkar stated that a baby sustaining subdural hematomas such as those observed would lapse into a coma in a matter of four or five hours.

On cross-examination, Dr. Kalelkar acknowledged that it was possible that the baby sustained the bruises in an accidental manner, but that it was unlikely. She also stated that she saw no evidence that Amy was grabbed or held with great force. Defense counsel established that the witness testified at an earlier proceeding that the bruises on Amy’s body could have been anywhere from several hours to two or three days old.

David Gilíes, a Will County deputy sheriff, testified that he was present when Dr. Kalelkar performed Amy’s autopsy. He stated that when Amy’s skull was exposed, the doctor pointed to a thin red line and indicated it was a fracture. After the technician removed the skullcap, Dr. Kalelkar held it up and manipulated the fracture back and forth.

Charlotte Clark, a registered nurse, testified that Amy’s right eyelid was swollen and discolored when she was brought to the emergency room for treatment.

Next, Mary Ann Burton Lewin testified that on October 28, 1987, in the course of her employment as a social worker, she had a conversation with the defendant. Lewin testified that the defendant described Amy as an irritable child who got worked up and upset to the point of throwing up. The defendant also told Lewin that for several days before Amy lapsed into the coma, she had been irritable, cried often, vomited several times, and repeatedly placed objects in her mouth as if she were teething. The witness noted that the defendant did not describe any positive qualities the child may have possessed.

Pamela Vraney, a neighbor of the defendant’s, was allowed to testify over defense objection. The court informed the jury that it should consider her testimony for the purpose of establishing the defendant’s intent or absence of mistake with regard to Amy’s death. Vraney testified that on June 26, 1987, her husband noticed a hole in their above-ground pool and directed her to go to the Blommaerts’ residence and bring back four-year-old Justin Blommaert, whom he suspected may have helped create the hole. After she explained this to the defendant, Vraney remained in the Blommaerts’ kitchen from where she heard the defendant go to the upstairs bathroom to inquire about the incident. Vraney testified that after Justin admitted putting a hole in the pool, the defendant began to yell and to beat him, and she heard the defendant slap him more than 10 times. Vraney said the defendant then brought the boy downstairs, clad only in his underwear, and “flung” him about 10 feet across the linoleum floor. Next, Vraney said, the defendant carried Justin to the swimming pool, threw him to the ground, and yanked and pushed him until he demonstrated what he had done. On cross-examination, Vraney stated that in the year she had known the Blommaerts, she had never seen the defendant act in any manner other than as a good mother. She also testified that she did not observe any welts or bruises on Justin after this incident.

The defendant then presented her case in chief. She presented three doctors who observed and examined Amy on either October 12 or 13 while she was in the hospital, and all testified that they observed no bruising on Amy’s body.

The defendant also called Dr. Mitra Kalelkar. The doctor stated, as she had in her earlier testimony, that it was possible that the bruises on Amy’s body could have been the result of accidents. She testified that the baby sustained the subgaleal hemorrhages at almost the same point in time, but admitted that they may have been inflicted up to a week apart. Dr. Kalelkar stated that there was no indication that the older subdural hematoma rebled and caused the newer hematoma, and further that old subdural hematomas do not usually rebleed in children.

On cross-examination, Dr. Kalelkar stated that the skullcap contains blood vessels, and if it fractures while the individual is alive, there will be a minute amount of bleeding along the fracture line. There will be no bleeding along the fracture line if the skullcap is fractured after death. While viewing a slide of the fracture she observed in Amy’s skullcap, the doctor noted the red line in the fracture, which indicated the fracture was not created postmortem. The witness again stated that in her opinion, the fall described by the defendant was not sufficient to create the subdural hematomas or the skull fracture Amy suffered.

Debbie Blommaert took the stand in her defense. She testified that on July 21, 1987, while in Chicago in the company of her family and the attorney who helped them adopt Amy, she tripped and fell forward with the baby in her arms. The defendant stated that the right rear portion of Amy’s head struck the concrete. The baby cried briefly but displayed no injuries, so the Blommaerts did not seek medical attention. The parties later stipulated that if he were called, the attorney would testify that he observed the defendant trip and fall, and that Amy hit the concrete and cried for several minutes. The defendant repeated the version of events she earlier told to Deputy Kraemer regarding Amy falling in the kitchen and later losing consciousness.

On cross-examination, the defendant testified that October 12 was the first time Amy had fallen and struck anything in the kitchen. The prosecutor then inquired whether in May of 1987, the defendant fainted in the kitchen while carrying Amy, causing Amy to fall and strike a chair or table leg and sustain a large facial bruise. The defendant denied this and stated she did not faint. On redirect, the defendant testified that in May of 1987, she had been applying water sealant in her basement while her gas dryer was operating, when Amy awoke from her nap. The defendant stated she got Amy and was coming downstairs with her when she became dizzy in the kitchen. The defendant testified she tried to sit on the kitchen floor so she did not fall with Amy, but she fell a little forward and, as a result, Amy hit the side of a chair and bruised her face.

Dr. Larry Blum, a forensic pathologist, conducted an autopsy on Amy on January 25, 1988. He testified that all of the bruises he observed could have been caused by the efforts to resuscitate Amy. After looking at a photograph of Amy’s skull, Dr. Blum testified that the line alleged by Dr. Kalelkar to be a fracture may or may not be a fracture, and even if it were, it was a fracture of the parietal bone, not the occipital bone as Dr. Kalelkar stated. He testified that small linear fractures in the parietal area are consistent with falls, and that accidental injury is more likely to occur in the parietal area rather than in the occipital area. He further stated that the larger subgaleal hemorrhage and the fracture could have been caused by the baby falling backwards.

Dr. Blum testified that the baby might have sustained the older subdural hematoma when the defendant fell with her in July of 1987. According to Dr. Blum, as part of the healing process of these hematomas, new blood vessels with thin walls form, and the hematoma might rebleed spontaneously or after only slight trauma. If a hematoma rebleeds, the blood flow puts pressure on the brain and the result is respiratory arrest and brain death unless the patient is placed on a respirator and the swelling in the brain is decreased. He opined that if a baby fell from a standing position and struck her head on the floor, there would be enough force to cause the rebleeding of a chronic subdural hematoma, and that is what occurred in this case. Finally, he stated that based upon a reasonable degree of medical certainty, it is entirely possible that the injuries that resulted in the victim’s death were accidental.

On cross-examination, Dr. Blum acknowledged that it was possible that the bruises on the baby’s body were of a nonaccidental nature. The witness agreed that the existence of a skull' fracture accompanied by a subdural hematoma indicated a blow of considerable force. He stated that when he performed the autopsy, he did not observe the .7-inch linear skull fracture Dr. Kalelkar located, and he based his opinion as to the cause of death on his own findings. However, he testified that the existence of the skull fracture did not alter his opinion regarding cause of death.

In rebuttal, the State called Pamela Vraney, who testified that in May of 1987, she noticed a bruise on Amy’s face. She stated that the defendant told her she had fainted in the kitchen while carrying Amy and that the baby must have hit the table or the chair leg. Vraney said the defendant told her she was going to see a social worker from the adoption agency in a few days and was worried the social worker would see the bruise.

The State called Dr. Haller, a neuropathologist, who examined Amy’s brain and spinal cord and reviewed the autopsy reports of other physicians. She testified that old subdural hemorrhages rebleed more frequently in adults than in children. She also stated that the fall described by the defendant would not generate enough force to create the fracture Amy sustained, whether the fracture was to the occipital bone or the parietal bone. Further, the doctor opined that the force of such a fall was not sufficient to cause the old subdural to rebleed.

The State also called Dr. Mary Ann Radkowski, whose specialty is pediatric neuroradiology. After viewing several CAT scans of Amy’s head and neck, the doctor testified that the old subdural hematoma did not rebleed into the area of the fresh hematoma. She explained that tremendous force would be required to cause a subdural hematoma in the area where the fresh hematoma was located, and that the hematomas were in different compartments of the brain and bleeding does not usually spread outside the compartment. The witness also testified that blood had collected in the subarachnoid space outside Amy’s brain and in the ventricles, which are sac-like structures containing cerebral-spinal fluid in the brain. She opined that re-bleeding of an old hematoma did not cause the collection of blood, but that it was the result of severe trauma. Dr. Radkowski further testified that a fall on a linoleum floor would not generate enough force to cause the injuries suffered by the baby in this case.

Dr. Robert Kirschner, the deputy chief medical examiner in Cook County, testified over defense objection. He testified that a fall such as that Amy experienced would not create a skull fracture, bleeding in the subarachnoid space, or bleeding in the ventricles. He stated that such injuries would result from severe blunt head trauma. The doctor observed the autopsy while it was being done and testified that he observed a fracture of the parietal bone in the left occipital region of the skull. In his opinion, the fall did not cause the old subdural to rebleed, and even if it had, it would be unlikely to have caused death.

On cross-examination, Dr. Kirschner acknowledged that the fracture was not in the occipital bone as Dr. Kalelkar stated in the autopsy protocol. He also stated that several studies have determined that when a skull fracture and subdural hematoma are present in a child Amy’s age, statistically, the chances of the injuries being caused by abuse are 95%. The doctor stated that the degree of brain injury Amy suffered is far out of proportion to what would occur from a re-bleeding of a subdural hematoma.

In surrebuttal, Dr. Blum testified that Dr. Kalelkar’s autopsy protocol made no mention of bleeding in the ventricles or subarachnoid space. He repeated that in his opinion, a fall sustained by a baby with a chronic subdural hematoma could result in rebleeding of the hematoma and death. The doctor stated that the older hematoma was in a stage of healing which made it highly susceptible to rebleeding, and that removal of fluid from the area could cause further subdural bleeding. He also acknowledged that the fluid removed from the area where the older subdural hematoma was located did not indicate rebleeding.

Following the presentation of the evidence, the defendant’s motion for directed verdict was denied and the case went to the jury. The jury found the defendant guilty of murder, and she was sentenced to a term of 20 years’ imprisonment. This appeal followed.

The defendant contends it was error for the trial court to allow the State to present evidence of prior acts of abuse directed against the victim and the defendant’s son, even though the court instructed the jury that the evidence was to be considered only to establish the defendant’s intent or the absence of accident or mistake with regard to the baby’s death. Specifically, the defendant argues that it was improper for Pamela Vraney to testify about the defendant’s treatment of Justin during the pool damage incident, and it was improper for the State to inquire of her about the facial bruise the baby sustained several months earlier and the defendant’s explanation for the manner in which it was sustained.

Evidence of other crimes, "wrongs, or acts is inadmissible if it only tends to establish the defendant’s propensity to commit crimes. (People v. Milner (1984), 123 Ill. App. 3d 656.) Such evidence is admissible for numerous other purposes, such as proof of motive, intent, knowledge, or absence of mistake or accident. Evidence of other acts or crimes may thus be received, if relevant, for any purpose other than to show mere propensity unless the court determines the probative value of the evidence is substantially outweighed by the risk that admission will unduly prejudice the defendant. (People v. Groleau (1987), 156 Ill. App. 3d 742.) The trial court’s decision with respect to admissibility of other crimes evidence will not be overturned unless there is a clear abuse of discretion. People v. Funches (1978), 59 Ill. App. 3d 71.

The defendant argues that Pamela Vraney’s testimony was irrelevant, about a remote incident, and served only to inflame the jury. We disagree. The testimony regarding the defendant’s abusive actions toward Justin provided information about the defendant’s temperament and her previous reactions when a child of hers frustrated or angered her, and it was therefore relevant. The uncharged incidents of abuse were also relevant to prove the defendant’s intent and to establish lack of mistake or accident. As the State noted, there are often no eyewitnesses to acts of child abuse, which renders it difficult to identify through direct evidence the perpetrator or the exact cause of death. Instead, guilt must often be established through circumstantial evidence which may include proof of a pattern of repeated beatings or injuries. Accordingly, under the totality of the circumstances presented, we cannot say that the trial court’s decision to admit the evidence of other acts or wrongs was a clear abuse of discretion. Furthermore, Pamela Vraney’s testimony that the defendant told her that Amy’s face was bruised because she fainted in the kitchen while carrying the baby was elicited in response to the defendant’s denial that she fainted in the kitchen. Thus, Vraney’s testimony about the defendant’s explanation of her fainting and the bruise Amy sustained was proper impeachment.

The defendant also contends that the court erred when it precluded her from impeaching Pamela Vraney by introducing evidence of litigation pending between their respective husbands. In an offer of proof, Vraney testified that Ron Blommaert, the defendant’s husband, performed unsatisfactory masonry work on the Vraney home and, as a result, Vraney’s husband filed a civil lawsuit and a complaint with the Attorney General’s office. Vraney admitted that she prepared and filed the necessary papers, but did not sign them because she had school-age children and might not be able to appear in court. She further stated that she and her husband had been friends with the Blommaerts, but they no longer had any relationship, good or bad. The court refused to allow the defendant to introduce this evidence during Vraney’s cross-examination, and the defendant contends this ruling improperly limited her right to establish bias or interest on the part of the witness.

In criminal proceedings, the accused has the right to question a witness concerning matters which explain,- qualify, discredit, or destroy what he or she said on direct examination. Although the scope of cross-examination is generally within the trial court’s sound discretion, the widest latitude should usually be allowed the defendant on cross-examination for the purpose of establishing bias, interest, or motive. (People v. Gonzalez (1984), 104 Ill. 2d 332.) We agree with the defendant that she should have been permitted to question Vraney about the pending litigation and the claim filed with the Attorney General. Even though the witness did not sign the documents, the fact that she prepared them for her husband’s signature and that she acknowledged her friendship with the Blommaerts had terminated as a result of the dispute indicates that this is a matter which might have colored her testimony. Therefore, inquiry into this matter should not have been foreclosed.

Improper restrictions on the scope of cross-examination constitute reversible error only if there was a clear abuse of the trial court’s discretion which resulted in a manifest prejudice to the defendant. (People v. Larson (1980), 82 Ill. App. 3d 129.) We find that the undue restriction on the witness’ cross-examination in this case does not rise to the level of reversible error. The defendant was otherwise given wide latitude in her cross-examination of this witness, and her testimony established that she was upset about the damage to their pool and the Blommaerts’ refusal to pay for the damage. While introduction of evidence regarding the lawsuit and the claim with the Attorney General would have been proper, we find the trial court’s decision to exclude that evidence did not result in manifest prejudice to the defendant.

Furthermore, as is often stated in Illinois law, a defendant is entitled to a fair trial, not a perfect one. (People v. Jackson (1986), 145 Ill. App. 3d 789, 795.) A conviction will not automatically be reversed merely because error was committed at trial, because trial error may be harmless if it is inconsequential or if it appears that it did not affect the outcome of the trial. (People v. Hunter (1984), 124 Ill. App. 3d 516.) On review, the appellate court’s purpose is not to determine whether the record is completely free from error, but whether any error occurred which prejudiced the defendant or which unduly affected the outcome below. (People v. Miles (1986), 151 Ill. App. 3d 485.) Upon a careful review of the record, we find that any error was harmless beyond a reasonable doubt, and neither reversal of the defendant’s conviction nor a new trial is required. People v. Foley (1982), 109 Ill. App. 3d 1010.

The defendant’s next assignments of error arise out of events which took place after the evidence was heard and prior to the rendering of the verdict. Judge Penn, who presided over the trial, informed the jury after closing arguments were made that he was late for a prior commitment and that Judge Bolden would therefore instruct the jury as to the law. During the course of its deliberations, the jury sent a note requesting that the autopsy slides which had been admitted into evidence be provided for further review. After hearing the arguments of counsel, Judge Bolden sent the slides and a projector to the jury room. The defendant now claims she was denied a fair trial because Judge Penn inexplicably absented himself from the courtroom, which prejudiced the jury, and because Judge Penn’s absence caused Judge Bolden to make an erroneous decision to submit autopsy slides to the jury, which served no purpose other than arouse the jury’s passion and prejudice. We disagree with both of the defendant’s allegations.

Judge Penn did not inexplicably absent himself and leave the courtroom unsupervised. Rather, after he heard all the evidence and arguments and ruled on jury instructions, he informed the jury that he had a prior commitment and left Judge Bolden to read the jury instructions. The cases cited by the defendant are not relevant because in those cases, the trial judges left the courtroom during closing argument and the proceedings continued unsupervised, while in the case before us, Judge Bolden presided over the proceedings after Judge Penn departed. The defendant admits that Judge Penn’s absence had an unknown effect on the jury, but presumes it somehow prejudiced the jury. There is no indication in the record that the change in judges affected the jury and there is no reason to presume prejudice in this situation. We find there was no reversible error.

The defendant contends Judge Bolden’s decision to allow the autopsy slides to go to the jury was prejudicial and constituted fatal error. She asserts that the slides were graphic and inflammatory, and that the only purpose for submitting them to the jury was to confuse, inflame, and prejudice the jurors. Again, we disagree.

The allowance of exhibits to be taken to the jury room during deliberations is within the sound discretion of the trial court. (People v. Montague (1986), 149 Ill. App. 3d 332.) In reaching its decision, the trial court is to balance the probative value against any prejudicial effect, and the decision will not be disturbed on appeal absent an abuse of the court’s discretion. (People v. Williams (1983), 97 Ill. 2d 252.) The slides in this case were graphic depictions of autopsy proceedings; however, they tended to establish the cause of death, the possible use of force, as well as the existence and location of the baby’s wounds. The slides had been shown to the jury and admitted into evidence, and they corroborated and explained the extensive and often conflicting medical testimony. Furthermore, the slides were submitted to the jury only in response to a written request from the foreman. It was well within the trial court’s discretion to allow these slides to be sent to the jury room during deliberations.

Finally, the defendant urges this court to find she was not proved guilty beyond a reasonable doubt of the offense of first degree murder. Specifically, she asserts that several of the State’s witnesses were biased, that they were impeached during cross-examination, that they disagreed on the location of the baby’s skull fracture, and often could not support their opinions with references to scientific literature. She also contends the State failed to prove she was the only one present when the fatal blow was inflicted and further failed to rebut her theory of defense, that the baby’s fall on the kitchen floor on October 12 caused the old subdural hematoma to rebleed.

The evidence against the defendant in this case was solely circumstantial, so in order for this conviction to be sustained, her guilt must be so thoroughly established as to exclude every reasonable hypothesis of innocence. (People v. Garrett (1975), 62 Ill. 2d 151, 163.) That is, the circumstantial proof must be of a conclusive nature tending to establish that the accused and no one else committed the crime. (People v. Williams (1977), 66 Ill. 2d 478.) As is often stated, it is the function of the trier of fact to pass upon the question of the guilt or innocence of the accused, and in cases where the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact to ascertain the truth. (People v. Hammond (1970), 45 Ill. 2d 269.) When presented with a challenge to the sufficiency of the evidence, a court of review does not retry the defendant, but determines only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

From a careful and thorough consideration of all of the evidence in this case, we are unable to say that there is a reasonable doubt as to the guilt of the accused or that the evidence failed to exclude every reasonable hypothesis of innocence. The conflicts in testimony and the issue of witness credibility were for the jury to resolve, and neither the defendant’s personal attacks on the State’s witnesses nor the citation to selected portions of the evidence leads this court to conclude that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The verdict of the jury is supported by the evidence in the record. The trial court found no fault with the verdict and denied the defense motion for judgment notwithstanding the verdict. Our review of the record discloses no errors necessitating reversal.

Based on the foregoing, the judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.