author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRADFORD et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—87—1623 through 1—87—1626 cons.
    Opinion filed August 25, 1989.

      Giovanni & Goldberg, of Chicago (Dennis A. Giovanni and Herbert L. Goldberg, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendants, Donald Bradford, Green Smith, Luther Woods and Michael Smith were charged by indictment with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401.) Prior to trial, Bradford brought a motion to suppress physical evidence against him. The motion was heard concurrently with the trial and was ultimately denied. Following a joint bench trial, Bradford was convicted of possession with intent to deliver 9.98 grams of heroin and was sentenced to a term of 14 years. Green Smith was convicted of possession with intent to deliver 126.19 grams of heroin and was sentenced to a term of 40 years. Woods was convicted of possession with intent to deliver 16.54 grams of heroin and was sentenced to a term of 40 years. Michael Smith was convicted of possession with intent to deliver 17.27 grams of heroin and was sentenced to a term of 20 years. The sentences of Green Smith, Luther Woods and Donald Bradford were enhanced based upon previous offenses by these defendants. Ill. Rev. Stat. 1985, ch. 56V2, par. 1408.

The issues raised on appeal are whether (1) the State presented sufficient evidence to prove the defendants guilty beyond a reasonable doubt; (2) the trial court erred in denying Bradford’s motion to suppress physical evidence; (3) the trial court erred in sentencing Green Smith, Luther Woods and Donald Bradford to enhanced prison terms; (4) the defendants’ sentences were excessive; and (5) the trial court erred in considering information that was not presented as evidence at trial.

The evidence adduced at trial established that on April 14, 1986, Chicago police officers Michael Daukus, James Keating and Arthur Jackson were assigned along with Sergeant Thomas Eichler to provide security at two summer job program sites located at 26th Street and Kolin Avenue and at Cermak Road and Marshall Avenue. The officers were in an unmarked police car driven by Officer Daukus. Officer Jackson was in the front passenger seat, Eichler sat behind Daukus, and Keating was in the rear passenger seat. About 9:30 a.m., while en route to the job program at Cermak Road and Marshall Avenue, Daukus drove east on Cermak beyond Avers Street. There the officers observed a group of people standing on both sides of Avers Street. Some of these people were known by the officers on patrol. All of these individuals ran in different directions when they saw the police car.

The officers also saw another group of people standing on the east side of Avers Street near the middle of the block. This group, consisting of the four defendants, was standing in front of a three-story building which was directly south of a vacant lot with a seven-foot cyclone fence in the front. There were no numbers on the building indicating its address, but it was at or near 2241 South Avers Street. Green Smith was standing in front of the doorway of the building. Woods, Bradford and Michael Smith were about 10 feet away and near the gate into the vacant lot. A fifth individual, later identified as Calvin Wilder, was standing about 40 or 50 feet away from the defendants at the north end of the vacant lot. Eichler directed Daukus to drive down Avers Street in order to “check [this group] out.” At Eichler’s suggestion, Daukus backed the car up and drove south on Avers. As the police car approached the group, Calvin Wilder ran through an opening in the fence and northeast through the vacant lot. The defendants ran through a gate in the fence and into the vacant lot as Eichler and Keating jumped out of the car while it was still moving. At Eichler’s direction, Daukus sped around the block to cut off the defendants’ flight.

Bradford, Woods and Michael Smith were about 20 feet in front of Green Smith and were running on a northeast diagonal through the lot. Green Smith was running down the concrete gangway situated along the side of the building. While running down this concrete walk, Green Smith threw a large brown bag to the ground. He then ran into the vacant lot, following the other three defendants. Eichler, who was in front of Keating, started to pick up the brown bag, but Keating called out that he would retrieve it. In the middle of the lot, Michael Smith broke away from the group and ran south toward the rear of the building. Eichler pursued Bradford, Woods and Green Smith, and Keating chased Michael Smith. As Bradford, Woods and Green Smith reached the back of the vacant lot near the alley behind Avers Street, the police car driven by Daukus came racing toward them. The three defendants stopped, and Woods dropped a paper bag to the ground. As Officers Daukus and Jackson were getting out of the car, Keating called out that he had “the dope.” Eichler retrieved the bag dropped by Woods, looked inside and saw that it contained several foil packets. He then told Daukus and Jackson to hold the defendants because “[they had] the dope” and indicated that he was going to assist Officer Keating.

Officer Daukus searched Bradford and recovered a plastic bag containing 50 foil packets from his jacket pocket. During this search, Calvin Wilder appeared on the scene and severely berated the officers for troubling his friends. Wilder was thereafter arrested for disorderly conduct. As Eichler was walking back toward the building, Keating came out of the door to the enclosed back porch with Michael Smith in handcuffs. All of the defendants were subsequently taken to the police station.

On direct examination, Sergeant Eichler testified that Green Smith was holding the large brown bag when Eichler first saw him standing in the doorway of the building. Eichler stated further that the gangway was about 125 feet long and ran the length of the building. Eichler estimated that it took about 30 or 40 seconds to run from the front of the gangway to the back, and it took the police officers in the car about one minute to get around to the alley at the back of the vacant lot. Eichler indicated, however, that he did not time these events with a stopwatch at the time of the incident.

Eichler also testified that he was familiar with the general area where this incident occurred, had observed illegal activities in the area and had made hundreds of arrests there in the past. He indicated that he had previously arrested Gabriel Smith, Michael Smith’s brother and Green Smith’s son, in the building outside which the defendants had been standing. Eichler obtained the address of the building from the earlier arrest report and listed it as 2245 South Avers. When Eichler saw Keating come out of the building with Michael Smith in custody, Keating was holding the bag that had been dropped on the gangway by Green Smith as well as a bag dropped by Michael Smith. Eichler and Keating returned to the alley with Michael Smith, and all of the defendants were taken to the police station.

On cross-examination, Eichler acknowledged that he had engaged in several conversations with Officers Keating and Daukus about the case. He also stated that when he spoke with the prosecutor about the case prior to trial, the other officers were present. Eichler did not have a private interview with the prosecutor prior to testifying. He indicated further that he had twice returned to the scene with Officer Keating and with two prosecuting attorneys.

Eichler had reviewed the arrest and case reports of this incident and made no changes or amendments. He confirmed that these reports did not include many of the specific details of the incident which he provided in his testimony. Specifically, the reports did not reflect that the officers had seen a group of people standing on both sides of Avers as they drove down Cermak. There was no indication that Eichler saw Green Smith holding the large brown bag while Smith was standing in the doorway. There was no list of the order in which the defendants ran into and through the vacant lot. The reports did not reflect that Green Smith dropped a bag in the gangway or that Keating stated that he would retrieve it. The reports did not indicate whether any of the officers saw the defendants with narcotics or which officer recovered narcotics from which defendant. There was no indication that a fifth individual, Calvin Wilder, ran through a hole in the cyclone fence. The reports did not reflect that the police car approached the defendants or cut them off in the alley. There was no indication that the address of the building had been obtained from an earlier arrest report.

Although Eichler testified that Green Smith dropped the bag near the alley, the arrest report reflected that the bag was dropped about eight feet into the gangway. The arrest report for Calvin Wilder reflected that Wilder was stopped at the same time as the other defendants and did not indicate that he approached the group later and was subsequently arrested. Eichler explained that these reports were merely summaries of the facts of the incident and arrests.

Officer Keating’s testimony substantially corroborated Sergeant Eichler’s account of the incident. He further indicated that he chased Michael Smith as he ran from the vacant lot back toward the building. As Smith approached the building, he dropped a brown paper bag to the ground. Keating retrieved the bag and followed Smith into the enclosed rear porch of the building. The officer stopped Smith as he was running up the porch stairs. Keating then opened the large brown bag that had been dropped on the gangway by Green Smith and saw that it contained hundreds of foil packets and a large amount of money (over $4,000). After he called to the other officers that he had “the dope,” Keating looked into the bag dropped by Michael Smith and saw that it contained two clear plastic bags, each holding several foil packets. Keating placed Smith under arrest, handcuffed him and conducted a pat-down search. As Keating and Smith were walking back down the stairs, Eichler approached them. Keating then gave Eichler the large bag that had been dropped by Green Smith, and they proceeded to the alley where the other defendants were being held by Officers Daukus and Jackson.

On cross-examination, Keating admitted that he had previously read the arrest and case reports pertaining to this incident and did not make any changes or amendments. He acknowledged that these reports did not reflect that the officers were assigned to provide security for job program sites or that they had observed a group of people standing on the corners of Avers and Cermak before they saw the defendants standing further down the block. The reports also did not indicate that the address of the building had been obtained from an earlier arrest report. The reports did not state that Green Smith was holding a bag as he stood in the doorway, that Keating later retrieved it or that he turned this bag over to Eichler after Michael Smith was arrested. The reports did not indicate that Keating called out that he had “the dope” or that Michael Smith was arrested in the building’s enclosed back porch. Rather, the arrest report indicated that Smith was arrested in the yard behind the building. Although the report reflected that Green Smith dropped the large bag near the alley, Keating testified that Smith dropped the bag about 10 feet into the gangway. Keating acknowledged that he had discussed his testimony with Sergeant Eichler and with the prosecutors prior to trial, but he said he had not returned to the scene after the arrests.

Officer Daukus testified to substantially the same facts as did Sergeant Eichler and Officer Keating. He stated further that after Eichler and Keating jumped out of the car, he sped down Avers, across a vacant lot and back north in the alley to cut off the flight of the defendants. When he reached the back of the vacant lot through which the defendants had run, he saw Bradford, Woods and Green Smith. Daukus and Jackson got out of the car and heard Keating call out that he had “the dope.” Eichler told Daukus and Jackson to hold the three defendants. Believing that the defendants had been placed under arrest, Daukus searched them. He recovered a plastic bag containing 50 foil packets from a pocket in Bradford’s jacket. After these defendants had been searched, Daukus saw Keating and Michael Smith come from the area behind the building. He also saw Eichler carrying the large brown bag that Green Smith had been holding as he stood in the doorway. Calvin Wilder appeared on the scene and was subsequently arrested.

On cross-examination, Daukus admitted that he had read and signed the arrest and case reports pertaining to this incident but did not make any changes or amendments. He acknowledged that the police reports did not reflect that Green Smith had a bag in his hand as he stood in the doorway or that Daukus had recovered narcotics from any of the defendants. Daukus testified further that these reports were merely summaries of the facts of the incident and arrests.

Daukus also stated that he did not see Woods drop a bag near the back of the vacant lot. When Daukus saw Eichler come from the vacant lot, Eichler had the large bag that Green Smith had been holding in the doorway. Subsequently, Keating handed something to Eichler who was then holding “a couple of paper bags.”

The parties stipulated that the bag alleged to have been dropped by Green Smith contained 15 clear plastic bags. Of those 15 bags, 13 held 50 foil packets, one held 46 foil packets and one held 51 foil packets. There were 747 foil packets, containing a total of 126.19 grams of heroin. The bag also contained a quantity of United States currency. The parties stipulated further that the bag alleged to have been dropped by Michael Smith contained two clear plastic bags, each holding 50 foil packets and totaling 17.27 grams of heroin. The bag alleged to have been dropped by Woods contained two plastic bags, each holding 50 foil packets and totaling 16.54 grams of heroin. The clear plastic bag alleged to have been recovered from Bradford during the search contained 50 foil packets totaling 9.98 grams of heroin. All of the bags described above were admitted into evidence.

Thereafter, the court denied each defendant’s motion for a directed finding, concluding that the inconsistencies in the officers’ testimony and the omissions from the police reports were minimal and were to be expected because the incident occurred very quickly and involved several officers and defendants. The court also denied Bradford’s motion to suppress physical evidence. Upon mutual request by the parties, the court agreed to and did personally view the scene of the incident.

Testifying for the defense, Mark Woods stated that he was not related to defendant Luther Woods but had known him for nine years. Mark Woods had known the other three defendants all of his life, and he knew Gabriel Smith. He lived at 2225 South Hamlin, which was in the block that was immediately east of where the defendants were arrested. About 9:30 a.m. on April 14, 1986, Mark Woods left his car to be repaired at a body shop located in the alley between Avers and Hamlin Streets. He then walked down the alley toward his home, carrying a large bag of dog food on his shoulder. Mark Woods saw Luther Woods, Green Smith, Donald Bradford and Calvin Wilder walking in the alley north of Gabriel Smith’s house and ran up to them. Michael Smith was not with the group at that time.

Thereafter, a police car, proceeding north through the alley, pulled up behind them. The police car was traveling at about 35 miles per hour. The officers in the car allowed Mark Woods to continue walking, but told the other four men to put their hands on the car. When he reached the end of the alley, Mark Woods looked back and saw the police officers searching the four men with whom he had been walking. He did not see anyone holding or dropping a brown paper bag and did not see anyone run through the vacant lot next to Gabriel Smith’s house. He returned to the scene about five minutes later and saw that his companions were still standing by the car and were handcuffed. Sergeant Eichler had a brown plastic bag with handles which did not look like the bags that were before the court. Mark Woods also saw Michael Smith walking toward the area with another police officer. Woods never heard Calvin Wilder say anything to the officers. Mark Woods admitted that he had discussed the case with Bradford, Michael Smith and the defense attorneys prior to trial.

Defendant Donald Bradford testified that about 9:30 a.m. on April 14, 1986, he was in the lot immediately to the north of Gabriel Smith’s house which was located at 2241 South Avers. As he was standing at the back of the lot near the alley, Luther Woods and Green Smith came out of the back door to the building’s enclosed rear porch and joined him. Calvin Wilder then walked from the front of the vacant lot to the back, and the four men walked north in the alley toward Cermak Road. They were joined by Mark Woods, but Michael Smith was not with the group at this time.

Bradford testified further that when the group reached the second vacant lot to the north of Gabriel Smith’s house, a police car drove north in the alley. Mark Woods continued walking, but the other four men stopped. The two officers in the car conducted pat-down searches of these four. Thereafter, Sergeant Eichler, with a dark plastic bag in his hand, came through the vacant lot to the south which was next to Gabriel Smith’s house. The bag held by Eichler did not resemble the paper bags that were before the court. Eichler told the other officers to handcuff Bradford, Green Smith, Luther Woods and Calvin Wilder. Wilder, who was hollering at the officers and asking why they were troubling his friends, was arrested. Thereafter, Officer Keating brought Michael Smith from the area of the vacant lot to the south and next to Gabriel Smith’s house. This officer was not carrying a paper bag in his hand. Bradford denied that a plastic bag containing foil packets was recovered from him during the search. He also denied that anyone had run through the vacant lot or dropped any paper bags to the ground.

Michael Smith testified that he was the son of Green Smith and his brother, Gabriel Smith, lived in the second-floor apartment of the three-story building at 2241 South Avers. He arrived at his brother’s house at about 8:45 a.m. on April 14, 1986, and his father arrived about 15 minutes later. Around 9:30 a.m. Green Smith left the apartment through the back door. Shortly thereafter, a woman came downstairs and said that “they had his father.” Michael then looked out of a window in the enclosed back porch and saw an unmarked police car. He also saw Calvin Wilder, Luther Woods, Donald Bradford and Green Smith being searched by three police officers.

After he had looked out of the window for about five minutes, a police officer ran up the stairs of the back porch with his gun drawn. The officer stuck the gun in Michael Smith’s side, kicked him in the midsection, handcuffed him and placed him under arrest. Smith was then taken down to the alley where his father was being held with Bradford, Woods and Calvin Wilder. There, he saw a dark plastic bag sitting on the hood of the police car. Smith stated that he never left the house and was not running outside when the officer came toward him. Michael Smith indicated further that his father, Green Smith, had a “bad leg” and could not run very well. Michael Smith denied having possession of a brown bag on the day in question. He also denied seeing any foil packets and denied that his father had a brown bag that day.

In rebuttal, the State introduced a certified copy of conviction for Michael Smith and two certified copies of conviction for Donald Bradford. The parties stipulated that Donald Bradford had been convicted in 1979 by a Federal court for conspiracy to distribute narcotics. This evidence was admitted without objection.

During closing arguments, the trial judge commented that while viewing the scene, he was told that the building at 2241 South Avers had new numbers indicating its address and that the numbers were not on the building at the time of the incident on April 14, 1986. Following closing arguments, the trial court held that the omissions from the police reports and the inconsistencies in the officers’ testimony were minimal. The court further found that the testimony of the defendants was not credible and thereafter found all of the defendants guilty as charged. The State’s motion to revoke the bond of Donald Bradford and of Michael Smith was granted, and the court ordered that presentence investigation reports be prepared.

The defendants subsequently filed motions for a new trial. During argument on these motions, counsel for Green and Michael Smith pointed out that the court had relied upon the out-of-court statement of a police investigator that the building at 2241 South Avers had new numbers indicating its address. In response to this argument, the court noted that this information was not included in its findings at the conclusion of the trial and specifically held that the information was not significant or pivotal in its conviction of the defendants. After additional argument on the motions for a new trial, the court found that there were no substantial inconsistencies in the officers’ testimony. Taking note that the incident occurred very quickly, the court held that that it could not have expected the testimony of the officers involved to be precisely identical. The court found the defendants’ theory that they were the unwitting victims of a conspiracy by the police officers to be unbelievable and not supported by the credible evidence presented at trial. Each defendant’s motion for a new trial was denied.

At the sentencing hearing, presentence investigation reports were distributed, and the parties stipulated that Green Smith had been convicted by a Federal court in 1980 of continuing criminal enterprise and conspiracy to distribute narcotics. It was also stipulated that Donald Bradford had been previously convicted by a Federal court of conspiracy to distribute narcotics. The parties stipulated further that Luther Woods also had been previously convicted by a Federal court of conspiracy to distribute narcotics and of distribution of narcotics. The State requested that Green Smith, Luther Woods and Donald Bradford be sentenced to enhanced prison terms in accordance with section 408 of the Controlled Substances Act. (Ill. Rev. Stat. 1985, ch. 56½, par. 1408.) The State sought a Class X sentence for Michael Smith.

Counsel for Michael Smith argued in mitigation that his only prior conviction was for possession of a stolen motor vehicle in 1985 for which he received a sentence of 18 months’ probation. Counsel also pointed out that Smith was 24 years old, married and had been a resident of Illinois all of his life.

Counsel for Green Smith asked the court to consider the contents of the presentence investigation report and argued that Green Smith was not a violent person, was married, was 41 years old and a Chicago resident. Counsel also argued that the provisions of section 408 of the Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56½, par. 1408) did not apply in the instant case.

Counsel for Donald Bradford noted in his argument that Bradford had a sixth-grade education and had been gainfully employed as a truck driver, carpenter and brick mason, was married and had a 10-year-old daughter and a one-month-old daughter. Counsel then argued that although Bradford had previously been convicted of a Class 3 felony in Illinois, incarceration for an extended period of time would work a great hardship on his family.

Finally, counsel for Luther Woods argued that his client was 32 years old, a product of a broken home, had lived with his mother, and had no father-figure while he was growing up.

The trial court found that prior Federal convictions were included within the clear meaning of the provisions of section 408(b) of the Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56½, par. 1408(b)), and therefore, that section was applicable in the instant case. After considering the relevant statutory factors and the arguments of counsel in aggravation and in mitigation, the court sentenced the defendants as follows: Green Smith received a term of 40 years’ imprisonment; Luther Woods received a term of 40 years’ imprisonment; Michael Smith received a term of 20 years’ imprisonment; and Donald Bradford received a term of 14 years’ imprisonment. As noted above, defendants have now appealed the judgments of conviction and the sentences imposed.

Defendants initially contend that their convictions should be reversed because the testimony of the three police officers was rehearsed, conflicting, impeached by omissions and contradictions in the police reports, and contrary to the physical evidence at trial.

Defendants argue that the inconsistencies in the testimony and the details omitted from the police reports create reasonable doubt of their guilt. These inconsistencies and omissions related to (1) whether the officers were assigned to provide security for summer job program sites; (2) whether the officers saw a large group of people standing on both sides of Avers as they drove down Cermak; (3) whether Green Smith was holding a large brown bag while he stood in the doorway; (4) whether the officers observed Calvin Wilder run through a hole in the cyclone fence as they approached in the police car; (5) whether the officers testified differently concerning the order in which the defendants ran down the gangway and through the vacant lot; (6) whether Green Smith dropped the bag 8 or 10 feet into the gangway or near the alley; (7) whether Officer Keating told Eichler that he would retrieve the bag dropped by Green Smith; (8) whether any of the officers observed the defendants with narcotics; (9) which officer recovered narcotics from which defendant; (10) whether the address of the building had been obtained from an earlier arrest report; (11) whether Calvin Wilder was stopped at the same time as the other defendants or approached the group later and only then was arrested for disorderly conduct; (12) whether Keating or Eichler had possession of the bag dropped by Green Smith when Daukus and Jackson arrived in the alley behind the vacant lot; (13) whether Michael Smith was arrested in the yard behind the building or on the stairs of the enclosed back porch; (14) whether Keating called out that he had “the dope”; (15) whether Keating gave Eichler the large bag that had been dropped by Green Smith; (16) whether Luther Woods dropped a bag near the back of the vacant lot; (17) whether Officer Daukus recovered narcotics from Donald Bradford; and (18) whether Eichler and Keating returned to the scene after the arrests and prior to trial.

Minor inconsistencies in testimony do not constitute grounds for reversal of a criminal conviction (People v. Scott (1987), 152 Ill. App. 3d 868, 872, 505 N.E.2d 42, 45; People v. Daniels (1984), 129 Ill. App. 3d 894, 900, 473 N.E.2d 517, 522; People v. Wright (1972), 3 Ill. App. 3d 829, 833, 279 N.E.2d 398, 401), and the effect of minor testimonial discrepancies upon the credibility of the witnesses is a matter for the trial court’s determination. (People v. Morgan (1963), 28 Ill. 2d 55, 190 N.E.2d 755; People v. Lemon (1966), 70 Ill. App. 2d 413, 218 N.E.2d 8.) In the instant case, the inconsistencies in the testimony and the omissions from the police reports were fully explored during defense counsel’s cross-examination of the State’s witnesses. The trial court considered these discrepancies but concluded that they were minor and were to be expected because the incident occurred very quickly and involved several officers and defendants.

In a bench trial, it is within the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein, and to render its decision accordingly. (People v. Purnell (1984), 126 Ill. App. 3d 608, 620, 467 N.E.2d 1160, 1169.) Where the evidence is conflicting, it is the prerogative of the trier of fact to ascertain the truth. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Purnell (1984), 126 Ill. App. 3d 608, 467 N.E.2d 1160.) The trial court specifically found that the testimony of the State’s witnesses was credible. The court also held that the theory posited by defendants was unbelievable and was not supported by the evidence presented at trial. When a defendant waives trial by jury and offers an explanation of his conduct, the plausibility of that story is to be determined by the trial judge, and the trial judge, as trier of fact, is entitled to disbelieve the explanation offered. People v. Lebron (1987), 161 Ill. App. 3d 815, 821, 515 N.E.2d 312, 315; People v. Kaprelian (1972), 6 Ill. App. 3d 1066, 1072, 286 N.E.2d 613, 618.

The defendants also contend that the testimony of the officers was rehearsed. Although Eichler and Keating acknowledged that they had discussed the case with the other officers and with the prosecutors, there is no evidence that their testimony was altered or colored by emphasis or suggestion. (See People v. McGuirk (1969), 106 Ill. App. 2d 266, 245 N.E.2d 917, cert. denied (1969), 396 U.S. 972, 24 L. Ed. 2d 439, 90 S. Ct. 459.) Defendants assert that the officers’ testimony was influenced by the prosecutor or by the other officers and rely on People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496. In that case, the complaining witness testified on a Friday but was unable to identify the defendants as her attackers. The prosecutor met with her during the weekend recess to “review and discuss” her testimony. When the trial resumed the following Monday, the complainant positively identified the defendants as the men who had attacked her. The court found that the testimony of the complaining witness was changed drastically as a result of her lengthy discussion with the prosecutor. There is no evidence in the present case that the testimony of the officers was influenced or changed as a result of a discussion with the prosecutor or with the other officers. Thus, People v. Pendleton is factually distinguishable from the instant case and is not controlling.

Defendants assert further that the testimony of the State’s witnesses should be rejected because the prosecutor failed to call Officer Arthur Jackson during the trial. This assertion is without merit. The testimony of a single law-enforcement officer is sufficient to support a conviction in a narcotics case. (People v. Garcia (1981), 100 Ill. App. 3d 302, 304, 426 N.E.2d 1116, 1117-18; People v. Grayson (1980), 89 Ill. App. 3d 766, 772, 411 N.E.2d 1177, 1181.) In the case at bar, Sergeant Eichler and Officers Keating and Daukus testified that the four defendants ran from the area as the police car approached. Eichler testified that Green Smith and Luther Woods discarded bags containing narcotics. Keating testified that Green Smith and Michael Smith discarded bags containing narcotics. Daukus testified that a bag containing narcotics was recovered during a search of Donald Bradford’s person. It was unnecessary for the State to call Officer Jackson to further corroborate the accounts given by the other three officers. Garcia, 100 Ill. App. 3d 302, 426 N.E.2d 1116.

Defendants also contend that the testimony of the officers must be rejected because it was contrary to the “laws of physics.” Specifically, they refer to the fact that Sergeant Eichler stated it took between 30 and 40 seconds to run from the front of the vacant lot to the back, and it took about one minute for the police car driven by Daukus to reach the south end of Avers, cross another vacant lot and proceed north up the alley to meet the defendants as they were attempting to escape. As previously noted, the trial court personally viewed the scene and heard all of the evidence. Moreover, these discrepancies were fully explored during defense counsel’s cross-examination of the State’s witnesses. (People v. Bell (1972), 53 Ill. 2d 122, 125-26, 290 N.E.2d 214, 216; Scott, 152 Ill. App. 3d at 872, 505 N.E.2d at 45.) Yet, the trial court found the testimony of the officers credible and held that the inconsistencies were minor and to be expected because the incident occurred very quickly and involved several defendants and officers. We cannot say this evidence was contrary to the “laws of physics” or that this evidence raises a reasonable doubt as to defendants’ guilt.

We next consider defendant Bradford’s assertion that the court erred in denying his pretrial motion to quash his arrest and to suppress evidence against him. Bradford contends that the trial court’s ruling was erroneous because Officer Daukus did not have probable cause to arrest or search him. This argument is unpersuasive. On a motion to suppress evidence the defendant has the burden of proving the search and seizure were unlawful. (Ill. Rev. Stat. 1985, ch. 38, par. 114-12(b); People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941.) The standard of review on a motion to suppress is whether the trial court’s ruling was manifestly erroneous. People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837; People v. Tribett (1981) , 98 Ill. App. 3d 663, 424 N.E.2d 688; People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505.

The constitutional safeguards against unreasonable searches and seizures do not prohibit all searches made without a warrant, but only those which are unreasonable. (People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739; People v. Jefferies (1972), 6 Ill. App. 3d 648, 285 N.E.2d 593.) A warrantless search is justified where there is probable cause to believe that a crime has been committed and that a search of a particular place or thing will disclose evidence, fruits of the crime, or is necessary to protect the police officer. (Kelly, 76 Ill. App. 3d at 84, 394 N.E.2d at 743; People v. Hering (1975), 27 Ill. App. 3d 936, 327 N.E.2d 583.) The reasonableness of a search must be judged upon the particular facts and circumstances surrounding the search. In order to decide if the officer had probable cause to conduct a search, the crucial question is whether the facts available to the officer at the moment of the stop would have caused a reasonable person to proceed in the same manner. People v. Worlow (1982) , 106 Ill. App. 3d 112, 435 N.E.2d 795; People v. Watts (1981), 93 Ill. App. 3d 420, 417 N.E.2d 247.

Probable cause exists where the police have knowledge of facts which would lead a reasonable person to believe that a crime has occurred and that it has been committed by the defendant. (People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640; People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) The determination of probable cause to search is to be made after examination of the totality of the circumstances. Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.

The probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause is present. Whether the necessary probability exists is governed not by technical, legal rules, but rather by commonsense considerations that are factual and practical. Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.

Facts sufficient to establish probable cause need not be sufficient to establish guilt beyond a reasonable doubt, and probable cause may be founded upon evidence which would not be admissible at trial. (Kelly, 76 Ill. App. 3d at 84, 394 N.E.2d at 739; People v. Blitz (1977), 68 Ill. 2d 287, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.) In determining whether the officer had probable cause, the officer’s factual knowledge, based on his prior law-enforcement experience, is relevant. People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399; People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809.

In ruling on Bradford’s pretrial motion, the trial court noted that the evidence had established Donald Bradford, Luther Woods and Michael Smith fled the scene in close proximity to each other, followed by Green Smith and chased by Sergeant Eichler and Officer Keating. A bag containing narcotics was dropped by Green Smith, and the nature of the contents of this bag was known to Sergeant Eichler prior to the stop and search of any of the defendants. Considering the flight of the defendants, the court concluded that it was reasonable for Eichler to order Daukus to hold the defendants and that a search incident to the arrest would have been reasonable. Indicating that the issue was whether the actions of Eichler and Daukus were reasonable, the court determined that there was sufficient evidence to support this conclusion. Accordingly, the court denied Bradford’s motion to suppress physical evidence.

The record indicated that Daukus was aware that the defendants fled from the scene as the police car approached. Eichler told Daukus to hold the three defendants because “[they had] the dope,” and Daukus heard Keating call out that he had “the dope.” This case is, therefore, analogous to Peters v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, where the Supreme Court held that a suspect’s flight at the approach of strangers or law-enforcement officers was strong indicia of mens rea. When coupled with the officer’s specific knowledge relating the suspect to evidence of crime, the suspect’s flight will provide probable cause for arrest. See also People v. Beall (1976), 42 Ill. App. 3d 452, 355 N.E.2d 756; People v. Cribbs (1972), 8 Ill. App. 3d 750, 291 N.E.2d 326; People v. Staples (1971), 1 Ill. App. 3d 922, 275 N.E.2d 259.

The evidence clearly established that all of the defendants fled the scene and were running together as the police car approached. Bradford’s flight coupled with Daukus’ knowledge that narcotics had been recovered during the pursuit of the defendants provided probable cause for the officer to search Bradford. Consequently, we find no error in the trial court’s denial of Bradford’s pretrial motion.

Next, defendants Green Smith, Luther Woods and Donald Bradford allege that the trial court erred in sentencing them to enhanced prison terms because their respective prior convictions were not alleged in the indictment or proved at trial. This argument is unpersuasive. Section 408 of the Controlled Substances Act (Act) provides as follows:

“(a) Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
(b) For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law or the United States or of any State relating to controlled substances.” Ill. Rev. Stat. 1985, ch. 561k, par. 1408.

This section deals exclusively with sentencing and describes the circumstances under which an enhanced penalty may be imposed for a violation of the Act. It is, therefore, similar to the extended-term provision of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2). Section 408 does not make the prior offense an element of the crime charged and does not mandate that an enhanced penalty be imposed. Because imposition of an enhanced penalty under this section is discretionary, the prior offense need not be charged in the indictment or proved at trial. See People v. Palmer (1984), 104 Ill. 2d 340, 472 N.E.2d 795; People v. Racinowski (1979), 78 Ill. App. 3d 954, 397 N.E.2d 932; People v. Phillips (1978), 56 Ill. App. 3d 689, 371 N.E.2d 1214.

Defendants further argue that the trial court abused its discretion in imposing excessive sentences upon each of them. Defendants claim that the trial court was “adversely predisposed to the defendants” and failed to consider their rehabilitative potential. The evidence in the record does not support this assertion. The sentence for each of the defendants was within the applicable statutory limits.

It is recognized that in considering the propriety of punishment a court of review must give great weight to the judgment of the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Bergman (1984), 121 Ill. App. 3d 100, 458 N.E.2d 1370.) The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. Additionally, the trial judge is normally in a better position to determine the punishment to be imposed than is a court of review. Perruquet, 68 Ill. 2d at 153, 368 N.E.2d at 883; People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330, 333.

A reasoned judgment as to the proper sentence to be imposed must be based upon the particular facts and circumstances of each individual case. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884; People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168.) Such a judgment depends upon many factors, including the gravity of the offense and the circumstances of commission, the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, and criminal history. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884; People v. Duncan (1981), 97 Ill. App. 3d 896, 424 N.E.2d 67; People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.

The sentencing judge is charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 548; Bergman, 121 Ill. App. 3d at 109, 458 N.E.2d at 1378.) Yet, the objective of restoring the offender to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense. (People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1, 4; Bergman, 121 Ill. App. 3d at 198, 458 N.E.2d at 1378.) The trial court is not required to detail for the record the process by which it concluded that the penalty imposed was appropriate. La Pointe, 88 Ill. 2d at 493, 431 N.E.2d at 349; Bergman, 121 Ill. App. 3d at 198, 458 N.E.2d at 1378.

At the sentencing hearing, the trial court had before it the presentence investigation reports and heard defense counsel’s statements in support of the defendants’ rehabilitative potential. Prior to imposing the sentence, the trial judge stated that he had considered the presentence investigation reports, the relevant statutory factors, the evidence presented at trial, the factors in aggravation and in mitigation and the arguments of counsel. It is clear, therefore, that the court was fully aware of defendants’ past records, their family situations and their personal traits. Yet, these considerations had to be balanced against the seriousness of the offenses. Upon review of the record, it is clear that the trial judge properly considered all relevant factors, including the defendants’ rehabilitative potential, in his sentencing decisions. Thus, it does not appear that the penalties reflect an abuse of the trial court’s discretion. People v. Younger (1986), 112 Ill. 2d 422, 494 N.E.2d 145.

Finally, defendants contend that they were deprived of due process by the trial court’s consideration of information not presented at trial but obtained while viewing the scene. Specifically, defendants refer to the trial court’s statement during closing argument that the trial judge was told, while viewing the scene, that there were new numbers indicating the address of the building at 2241 South Avers and that those numbers were not on the building at the time of the incident and arrests. Defendants argue that because the person making this statement was not subject to cross-examination, the court’s consideration of the information constituted a denial of due process. This claim was rejected by the trial court during the hearing on defendants’ motions for a new trial. At that time, the court stated that no significance was attached to the information about new numbers on the building. Thus, this fact was not crucial and was not relied upon by the court in finding defendants guilty.

In a bench trial, it is presumed that the trial court has considered only competent evidence in reaching its finding, and this presumption may be rebutted only when the record affirmatively shows the contrary. (People v. Gilbert (1977), 68 Ill. 2d 252, 258, 369 N.E.2d 849, 852.) In the instant case, the trial judge specifically stated that he attached no significance to the statement about new numbers on the building. Thus, we find no basis for the defendants’ claim that the court relied upon incompetent evidence in finding them guilty.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

EGAN, P.J., and QUINLAN, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    ROBERT L. LEONARD, Plaintiff-Appellant, v. LEONARD W. KOVAL et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—1213
    Opinion filed August 25, 1989.
    Gordon & Gordon, Ltd., of Chicago, for appellant.
    Deutsch, Levy & Engel, Chartered, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Robert L. Leonard, the seller of a warehouse in North-brook, Illinois, filed a two-count complaint against defendants Leonard W. Koval, the buyer, Chicago Title and Trust Company, which held the escrow account, and Florrie Gottainer, a realtor, for specified performance and other relief. After plaintiff rested his case in this bench trial, the trial court directed a verdict in favor of defendants as to count II. Leonard appeals from the directed verdict as to count II for specific performance and declaratory relief concerning the $55,000 escrow. At the close of defendant’s case, the trial court directed a verdict in favor of Leonard as to count I, and defendants have not appealed that order. Only the appellee Koval has filed an appearance and answering brief in this court.

On January 21, 1985, Leonard entered into a real estate contract with Koval for the purchase of a 60-year-old airplane hangar which had been converted into a commercial structure, for the purchase price of $865,000. On August 7, 1985, the parties also entered into an escrow agreement, which provided that Koval would, for nine months, use his best efforts to seek a revision to Article V of the Northbrook Zoning Ordinance in order to permit him to add 29,000 square feet or less to the building. Leonard would then have an additional nine months to seek such a zoning revision in the event that Koval failed to succeed.

During the 18-month period, $55,000 was to be held in escrow by Chicago Title and Trust. If the zoning revisions were obtained, $44,000 was to be paid to Leonard and $11,000 was to be paid to a real estate broker. If the zoning change was not accomplished after Koval’s best efforts, the money was to be given to Koval. The agreement read:

“VI. The parties have agreed to retain $55,000 as escrow funds for the next eighteen months during the time the revising of Article V of the Northbrook Zoning Ordinance as aforestated will be pursued; that for the first nine months of said period, the purchaser [defendant] and his attorney shall use their best efforts and at their expense to secure the contemplated revision of Article V of the Northbrook Zoning Ordinance as heretofore stated and permission to add twenty-nine thousand square feet of building or such lesser square footage as Koval [defendant-buyer] accepts; that after said nine month period, the seller [plaintiff], upon notice by purchaser [defendant] that the revision has not yet been accomplished, shall use his [plaintiff-seller’s] best efforts so as to accomplish the revision of Article V of the Northbrook Zoning Ordinance as before stated.”

Koval filed for a 32,774-square-foot variance with the Northbrook Zoning Board of Appeals (ZBA). He subsequently reduced the request to 31,000 square feet. Koval’s application for variance was filed on September 27,1985.

The October 28, 1985, minutes of the ZBA show that Grant Erickson, Koval’s attorney, appeared with Joseph Alexander, an architect, who presented site plans. After some discussion, with various recommendations and suggestions made to Koval, the matter was continued until November 25,1985.

On November 19, 1985, Leonard notified Koval that he was in the wrong forum, since the ZBA had no authority to revise Article V of the Northbrook Zoning Ordinance. The letter included a demand to proceed “up and until April 15, 1986, so as to obtain this variation by ordinance,” at which time Leonard would “use the following 9 month period of time to accomplish said variation.” The parties then contacted Northbrook’s attorney, Steven Elrod, to determine the proper forum. Based on the information received from Elrod, the parties included the disputed language in section V of the escrow agreement.

On November 25, 1985, Koval appeared before the Northbrook ZBA. He requested a continuance due to his “inability to complete the items addressed at the November meeting.” The chairman announced that if Koval could not proceed on January 27, 1986, the petition would be dismissed and he could refile for a hearing at a later date.

In January 1986, Koval made an application to the Northbrook plan commission for an ordinance amendment.

On January 27, 1986, the ZBA minutes reflect that Koval was still not ready to make a presentation in response to the suggestions and requests made at the November meeting, and he asked for a continuance until April. The chairman stated emphatically that he did not want Koval to work one board, such as the plan commission or village board, against the ZBA. Koval’s attorney assured the ZBA that he did “not intend to approach the boards in opposite directions.” He further stated that the project is an expensive and complicated development which required further detailed study. The matter was continued until February 24,1986.

In January 1986, Leonard told Koval that he could add 29,000 square feet to the second floor without obtaining a zoning change, but Koval replied that he wanted the addition to be a one-store facility.

On February 14, 1986, Koval entered into an exclusive real estate agency agreement with Gottainer to sell the property.

On February 24, 1986, no one appeared at the ZBA on behalf of Koval and the matter was again continued.

On March 18, 1986, Koval’s attorney appeared before the plan commission and explained that Koval had “struggled as to which direction to pursue,” the commission or the ZBA. She stated Koval did not agree with specific engineering changes suggested by the village, and therefore he went to the ZBA; that she was aware of the lack of cooperation on the part of her client; and that she was not in favor of changing the zoning ordinance since the building was purchased knowing of the non-conforming bulk. When asked why Koval believed the plan commission was a better forum, his attorney replied that it was easier. Elrod stated that he was not sure the ZBA had been presented with sufficient evidence to merit a variation. The plan commission recommended that the village board deny the application “due to insufficient evidence that the amendment would promote public health, safety and welfare.”

According to the March 24, 1986, minutes of the ZBA, Koval’s attorney stated that Koval had presented to the plan commission an amendment to the zoning code, and that the petition was heard and rejected by the plan commission on March 18. The plan commission had recommended the adoption of a zoning code amendment which would prohibit the ZBA from granting variations to increase the floor area of nonconforming commercial property, which proposed amendment was before the village board of trustees. A request for a continuance until April 28 was granted.

On March 28, 1986, a potential purchaser of the property signed a letter of intent to offer Koval $850,000 for the property, subject to title inspection and procurement of authority to conduct its business there.

On April 2, 1986, Koval notified Leonard in writing that he would not proceed with an appeal to the board.

On April 7, 1986, Leonard informed Koval in writing that he believed Koval did not use his best efforts to obtain the zoning amendment, and thus Leonard felt it would be futile to use his best effort to obtain a zoning amendment, and that he believed Koval had materially breached the contract.

The April 28, 1986, minutes of the ZBA discussed the numerous continuances Koval had received; the fact that he still was unprepared to offer testimony; that no testimony had ever been presented regarding the nature of the requisite hardship; and that in the chairman’s opinion Koval had “not made any effort to comply with or respond to the Board’s suggestions.” The petition for a variance was denied.

On May 27, 1986, Koval entered into a real estate contract to sell the property.

At trial, defendant Florrie Gottainer, a real estate broker for Koval, testified regarding the sale of the property in May 1986.

John Novinson, the assistant village manager for Northbrook, testified that Koval’s application to the plan commission was deficient in several respects: It did not have the owner’s name and signature; the property’s location; the real estate index number; the parcel’s size; the current zoning; the proposed zoning; the structure’s height; and the number of lots. However, the application would not be deficient if the party only sought to change an ordinance without reference to one particular piece of property. Novinson testified that the April 28 ZBA minutes were authentic.

Novinson testified further that he was not aware of the precise facts concerning the petition at issue. He did not know if the numerous requests for continuances negatively affected the final decision of the ZBA. Novinson testified that typically applications for zoning amendments included a substantial number of expert witnesses regarding the best use of the land. Typical witnesses included experts from financial institutions, land planners, architects, traffic consultants, tax impact consultant and engineers. However, experts were less likely to be used where a general ordinance amendment was sought.

Jerry Schain, an attorney, testified for Leonard as an expert in zoning. After reviewing the real estate contract and escrow agreement at issue, he testified that the only way to revise an article of the Northbrook Zoning Ordinance was to seek a public hearing before the plan commission and then go to the board of trustees. The ZBA did not have the authority to make such a revision. The two forums, however, were not mutually exclusive. In Schain’s opinion, going before the ZBA did not constitute an earnest effort to amend or revise the ordinance.

Schain testified that the appropriate expert witnesses to be called at such a hearing would include an urban planner, an appraiser, and perhaps a traffic consultant. Moreover, after denial by the plan commission, an “earnest effort” would require an appeal to the board of trustees. Whether evidence which was not offered before the plan commission could be offered later to the board of trustees was within the discretion of the board.

Grant Erickson, the attorney representing Koval in the matter at issue, was called as an adverse witness by Leonard. Erickson testified that he requested an addition of 31,000 square feet instead of 29,000 square feet because he wanted to leave room for negotiation. Erickson believed the nine-month time restriction terminated on April 15 (instead of May 7), and therefore, he did not appeal the decision of the plan commission to the board of trustees. At the April 28 meeting of the ZBA he tried everything possible to get the 29,000 additional square feet.

Koval testified as an adverse witness for Leonard that he purchases real estate for his own portfolio. He attended only the first meeting of the ZBA and never appeared before the plan commission.

Leonard testified that he did not know whether a nonconforming building could be added onto by means of a second and third floor. He received no notice of any of the hearings.

Sheldon Harris, the attorney who represented Leonard in the matter at issue, testified that in November 1985 he discovered that Koval was appearing before the wrong forum, and he notified Koval of this error on November 19. He informed Erickson that the burden of proof before the ZBA would be insurmountable. Harris testified further that on March 28, 1986, Erickson told him that Koval was planning on selling and did not have much interest in pursuing the zoning change.

Harris chose not to proceed before the ZBA or the plan commission because of Koval’s sale of the property; because he believed he had no standing to seek the zoning change; and because he believed he lacked privity since the property was being sold to another person.

At the close of plaintiff’s evidence, the trial court entered a directed verdict in favor of defendants as to count II. The trial court subsequently denied Leonard’s motion to reconsider, and he appeals.

The trial court must carefully scrutinize the evidence submitted by plaintiff when considering a motion for a directed verdict following the close of plaintiff’s case in chief. (McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 450 N.E.2d 5.) In a bench trial, when defendant moves for a directed verdict at the close of plaintiff’s case, the court must weigh the evidence, consider the credibility of the witnesses, and the weight and quality of the evidence. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110.) Thus, rather than considering the evidence in the light most favorable to plaintiff, as in a jury case, the court in a trial without a jury must weigh all of the evidence. (Kellman v. Arthur Rubloff & Co. (1979), 68 Ill. App. 3d 799, 386 N.E.2d 502.) The court must first determine as a matter of law whether plaintiff made out a prima facie case. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) That is, the plaintiff must have presented at least some evidence on each element essential to his cause of action. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; Wilbur v. Potpora (1984), 123 Ill. App. 3d 166, 462 N.E.2d 734.

In the present case, Leonard presented prima facie evidence of a breach of contract. He offered some evidence of breach, supporting his claimed entitlement to specific performance and declaratory relief.

On August 7, 1985, the escrow agreement was executed by the parties, and Koval then had nine months to use his best efforts to seek a revision of article V of the Northbrook zoning ordinance to obtain permission to add 29,000 square feet to the building in question.

Koval, however, sought 32,774 square feet, when he agreed to seek only 29,000 or such “lesser square footage” as he accepts. It is impossible to tell from this record whether the addition of several thousand extra square feet affected the final decision of Northbrook, but it tends to indicate less than best efforts to obtain the required zoning amendment.

Leonard also presented the testimony of Schain, qualified as an expert in zoning by the trial court, that Koval presented his application before the wrong board. Schain stated the ZBA had no authority to make the zoning change specified in the escrow agreement.

Koval finally filed an application with the plan commission in late January 1986. However, he failed to present the type of evidence which Schain and Novinson indicated ordinarily was necessary in seeking a zoning amendment. While the trial court is not required to accept that testimony, it was enough to establish a prima facie case of failure to use best efforts to accomplish the required zoning change. The absence of such expert witnesses carried an inference of the failure to exert best efforts because at the same time, the property was put up for sale without any conditions even vaguely resembling those which required Koval to seek the zoning amendment.

Koval admits deciding to sell the property before the nine-month period had passed. He listed the property on February 14, 1986, and the new purchaser executed a letter of intent to purchase on March 28, 1986. The formal contract of sale was executed on May 27 without any zoning restrictions. While there is no prohibition against such a sale in the contract, the action tends to show a lack of best efforts to obtain the zoning change.

Even after the plan commission recommended a denial of the application to the board of trustees, Koval failed to make an attempt to appeal to the board of trustees. Confusion as to the expiration of the nine-month period does not compel us to find a lack of a prima facie case.

Finally, Leonard offered evidence that any efforts on his part to seek the ordinance during the second nine-month period would have been futile. First, he would be appealing to the board on the basis of allegedly inadequate evidence presented by Koval, to the plan commission, thus greatly reducing Leonard’s chances before that tribunal. And significantly, by the time the second nine-month period rolled around, Koval had sold the property.

By our holding, we in no way intend to foretell the result of the case upon remand, following a full trial. We limit our holding to the facts in the procedural setting before us. As a matter of law, Leonard presented some evidence on each element essential to his breach of contract cause of action, and therefore, successfully made out a prima facie case sufficient to withstand a motion for a directed verdict at the close of his case in chief.

Koval maintains that there was an anticipatory breach when Leonard wrote that he would not spend the second nine-month period seeking the zoning change. A party cannot claim the failure of a condition when that party prevented the actualization of the condition upon which the contractual liability depends. (Osten v. Shah (1982), 104 Ill. App. 3d 784, 433 N.E.2d 294.) Here, Leonard offered evidence that Koval’s failure to use his best efforts to obtain the zoning amendment prejudiced any chance of appeal to the Board.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the views contained herein.

Reversed and remanded.

QUINLAN and LaPORTA, JJ., concur.


author: JUSTICE BUCKLEY

text:
    THE NEW YORKER MAGAZINE, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0379
    Opinion filed August 28, 1989.

      Sidley & Austin, of Chicago (J. Douglas Donenfeld, Henry L. Mason III, and Lisa A. Hausten, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This action arises from the circuit court’s affirmance on administrative review of the Illinois Department of Revenue’s (the Department’s) decisions regarding two tax deficiencies issued to the New Yorker Magazine, Inc. (the New Yorker). The New Yorker is a unitary business, operating in more than one State, which engages in the business of publishing a magazine known as “The New Yorker.” It derives its business revenue from subscriptions, newsstand sales and advertising, and pays taxes on its business income to five States, including Illinois.

The New Yorker appeals the circuit court’s decision, contending that (1) the circuit court erred in finding that the Department properly apportioned its receipts from advertising space, subscription sales and newsstand sales under the Illinois Income Tax Act (the Act) (Ill. Rev. Stat. 1985, ch. 120, par. 1 — 101 et seq.), and (2) the Act is unconstitutional as applied to the New Yorker in the instant case. We affirm.

The Department issued a tax deficiency notice to the New Yorker for the years 1975-77 and another for the years 1979-81. After administrative hearings were held for both audit periods, a January 18, 1985, decision issued assessing the New Yorker $56,279 for the first period and a March 31, 1986, decision issued assessing it $39,325 for the second period. Both decisions increased the New Yorker’s tax liability to Illinois because the New Yorker underreported its sales under the Act’s three-factor apportionment formula.

The Act contains a three-factor formula that apportions income of a corporation engaged in a multistate business. The formula, adopted from the language of the “Uniform Division of Income for Tax Purposes,” includes sales, property and payroll factors. Under this formula, each of these factors is considered as a fraction. The numerator of each fraction is the Illinois portion of the value, while the denominator represents the total value in all jurisdictions. The resulting percentage represents the taxing percentage on the taxpayer’s business activity in Illinois. Ill. Rev. Stat. 1985, ch. 120, par. 3 — 304(a)(3).

Illinois’ power to apportion the income of an integrated, multistate business, as well as that of other States, is restricted by the commerce clause and due process clause of the United States Constitution. (U.S. Const., art. I, §8, cl. 3; U.S. Const., amend. XIV.) These clauses require a “minimum connection” between the interstate activities and the taxing State and a “rational relationship” between the income attributed to that State and the intrastate values of the enterprise. (ASARCO, Inc. v. Idaho State Tax Comm’n (1982), 458 U.S. 307, 328, 73 L. Ed. 2d 787, 802, 102 S. Ct. 3103, 3115; Exxon Corp. v. Wisconsin Department of Revenue (1980), 447 U.S. 207, 219-20, 65 L. Ed. 2d 66, 79, 100 S. Ct. 2109, 2118; Moorman Manufacturing Co. v. Bair (1978), 437 U.S. 267, 273, 57 L. Ed. 2d 197, 204, 98 S. Ct. 2340, 2344.) The Constitution, however, imposes no single formula on the States because of the difficulties in arriving at precise territorial allocations of value (Container Corp. v. Franchise Tax Board (1983), 463 U.S. 159, 164, 77 L. Ed. 2d 545, 552, 103 S. Ct. 2933, 2939), although an application of an apportionment formula will be struck down where the taxpayer can prove by clear and cogent evidence that the income attributed to the State is out of appropriate proportion to the business transacted in the State or has led to a grossly distorted result. Container Corp., 463 U.S. at 164, 77 L. Ed. 2d at 552, 103 S. Ct. at 2939-40; Butler Brothers v. McColgan (1942), 315 U.S. 501, 507, 86 L. Ed. 991, 996, 62 S. Ct. 701, 704.

The business activities of the multistate business here are conducted as follows: The New Yorker is headquartered in New York, its corporate domicile. Its management and editorial functions are performed in New York, including the acceptance of subscriptions, the selection of magazine materials, the preparation of the copy and layouts for printing, the execution and approval of advertising contracts, and the approval of advertising copy. It maintains six branch offices for advertising solicitations, one of which is located in Chicago, Illinois. These offices employ 7% of the New Yorker’s personnel, with the remaining percentage of the personnel employed in New York.

The printing of the magazine is contracted to R.R. Donnelley & Sons, Inc., a commercial printer located in Chicago. Galleys from the printing are sent to New York for proofreading. One of five production supervisors from New York is at the printing plant on a rotating basis to resolve manufacturing problems and to aid in the magazine’s prompt distribution. One clerical employee of the New Yorker is permanently assigned to Illinois to perform duties such as typing, checking the number of issues printed each week, calculating and recording weekly lineage, and maintaining offset evaluation records.

Upon printing, “newsstand” copies are shipped from the printer to wholesalers in various parts of the country pursuant to instructions given by Curtis Circulation Company (Curtis), an independent contractor and a Philadelphia-based circulation company under contract with the New Yorker to sell its magazine. The New Yorker instructs Curtis as to the quantity of issues to be shipped, and the New Yorker remains responsible for arranging and paying for special promotions.

Before considering the New Yorker’s constitutional claims, we address its contention that the circuit court erred in finding that the Department correctly applied the Act’s apportionment provisions. The decision for the years 1975-77 found that the New Yorker failed to include as a sale of tangible personal property in the sales factor of the apportionment formula its advertising income and its total newsstand and subscription sales that were shipped from its printer but were not taxed in other jurisdictions. The decision for the years 1979-81 similarly taxed the New Yorker, except that its newsstand and subscription sales from the shipment of its printer were included only for the period January 1, 1979, to September 8, 1979, due to a 1979 statutory amendment to the Act.

The New Yorker first argues that the circuit court erred in finding that its advertising receipts were sales of tangible personal property under the sales factor in the Act’s apportionment formula. The formula’s distinction between the sale of tangible and intangible property is critical to the New Yorker’s tax liability here because income from the sale of tangible personal property is allocable to Illinois where (1) the property is delivered or shipped to a purchaser within Illinois, or (2) the property is shipped from an “office, store, warehouse, factory or other place of storage” in Illinois and is not taxable in the purchaser’s State (Ill. Rev. Stat. 1985, ch. 120, pars. 3— 304(a)(3)(B)(i), (ii)), whereas income other than from the sale of tangible personal property is allocable to Illinois only if the greater proportion of the income-producing activity is performed in Illinois (Ill. Rev. Stat. 1985, ch. 120, par. 3-304(a)(3)(C)(ii)).

No dispute exists here that the sale of the magazine constitutes the sale of tangible personal property. (Time, Inc. v. Hulman (1964), 31 Ill. 2d 344, 201 N.E.2d 374.) The parties disagree, however, as to whether the revenue derived from the New Yorker’s advertising transactions should be included in that category or treated separately from the circulation revenue as a sale of intangible property. The New Yorker asserts that the substance of its advertising transactions is the provision of the service of communicating a message to the public, wherein no tangible property is transferred to the advertiser. The Department, on the other hand, maintains that receipts from the sale of advertising space are sales of tangible personal property because the sale of advertising space is an integral part of the publication and depends upon the circulation of the magazine.

In determining this issue, we are mindful that substantial weight and deference must be afforded an interpretation given to a statute by the agency charged with its enforcement. (Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 508 N.E.2d 1058.) Two such interpretations are brought to our attention. The New Yorker refers us to the Illinois Department of Revenue Rules and Regulations, effective July 24,1971, to December 24, 1981, which provide:

“For purposes of the sales factor, sales of services not directly related to real or tangible personal property, such as advertising services, legal and accounting services, management consulting services, will be presumed to be in Illinois if the place from which the service is directed or controlled is in Illinois.” (Emphasis added.) (Department of Revenue Rules and Regulations, July 24,1971.)

As the department urges, we do not believe this regulation demonstrates the Department’s intent in this regard because “advertising services” most likely refers to traditional advertising services performed by advertising agencies, such as creating the “ad” concept. The Department’s interpretation of the statutory provision is reflected in a position memorandum issued August 15, 1978, by its income tax and hearing division, stating that sales of advertising space are to be included in sales of tangible personal property because they are an integral part of the publication and the sale of magazines. Position Memorandum 1978-2, Illinois Department of Revenue, Income Tax and Hearing Division,.August 15, 1978.

To support its position that advertising proceeds should be considered as a service transaction and not as a sale of tangible property, the New Yorker cites Illinois and Federal case law. The Illinois cases cited, Time, Inc. v. Hulman (1964), 31 Ill. 2d 344, 201 N.E.2d 374, Colorcraft Corp. v. Department of Revenue (1986), 112 Ill. 2d 473, 493 N.E.2d 1066, and Dinner Theatre Associates, Ltd. v. Department of Revenue (1985), 139 Ill. App. 3d 911, 488 N.E.2d 288, involve the question of whether a business is subject to taxation as a manufacturing process under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 440 et seq.) or as a service under the Service Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 439.101 et seq.).

Time established that the test for determining whether a business transfers tangible personal property is whether the transfer is the substance of the transaction or merely incidental to a service. (Time, 31 Ill. 2d at 349, 201 N.E.2d at 377.) The Illinois Supreme Court expounded upon this test in Colorcraft:

“If the article sold has no value to the purchaser except as a result of services rendered by the vendor and the transfer of the article to the purchaser is an actual and necessary part of the service rendered, then the vendor is engaged in the business of rendering service and not in the business of selling at retail. If the article sold is the substance of the transaction and the service rendered is merely incidental to and an inseparable part of the transfer to the purchaser of the article sold, then the vendor is engaged in the business of selling at retail.” (Colorcraft, 112 Ill. 2d at 482, 493 N.E.2d at 1069, citing Velten & Pulver, Inc. v. Department of Revenue (1963), 29 Ill. 2d 524, 529,194 N.E.2d 253, 256.)

Applying the above test to the photo-finishing business in Colorcraft, the supreme court found the business to be properly classified as a service occupation because its service of creating the prints is the essence of its transactions, with the finished prints having no value to the customer except as a result of these services.

In Dinner Theatre, the appellate court found a dinner-theatre business, which included both a dinner and theatrical production in its admission price, to be properly taxed as a manufacturing process on the one-half admission price which was attributed to the sale of the meal served. The court reasoned that the business engaged in two separate and divisible capacities through its dinner-theatre operation, in which the sale of meals was an integral part of, and not merely incidental to, the operation. Dinner Theatre, 139 Ill. App. 3d at 913-14, 488 N.E.2d at 289.

Apart from our recognition that the above cases do not involve an interpretation of the statutory provision in issue here, we do not believe these cases support the New Yorker’s position. The substance of the business activity here is the sale of the magazine. Unlike Colorcrafi, where the plaintiffs were in the business of developing film, the New Yorker is not in the business of advertising but in the business of publishing a magazine.

The sale of the advertising space is also incidental to and inseparable from the circulation sales. Contrary to Dinner Theatre, the New Yorker is not functioning in two separate and divisible capacities so that the revenues generated are to be treated separately for tax purposes. The advertising revenue here is dependent upon and part and parcel of the publication and sale of the magazine.

We reject the New Yorker’s assertion that a finding of a service here is even more compelling than the above cases because no article is transferred to the advertiser. This reasoning confuses the buyer-seller analysis of the sales tax statutory scheme with the statutory scheme in issue here, one concerned with apportioning the total income of a multistate business. Thus, we find that the circuit court did not err in finding the advertising revenue to be includible with the circulation revenue as a sale of tangible property under the Act.

Our conclusion does not conflict with the Federal cases cited by the New Yorker. Contrary to the New Yorker’s assertion, the United States Supreme Court in Western Live Stock v. Bureau of Revenue (1938), 303 U.S. 250, 82 L. Ed. 823, 58 S. Ct. 546, did not broadly hold that advertising revenue should be apportioned independently of circulation revenues. The Supreme Court there addressed only the question of whether the State’s 2% tax imposed solely on the gross receipts from the sale of advertising space of a business which published newspapers and magazines circulated in and out of the State placed an unconstitutional burden on interstate commerce. The Court sustained this broadly worded “unapportioned” tax because the concerns with burdening commerce with taxing unapportioned gross receipts were not present there. It noted that all aspects of the publishing of the magazine and the sale of advertising space were purely local and therefore beyond the control and taxing power of other jurisdictions. Western Live Stock, 303 U.S. at 260, 82 L. Ed. at 830, 58 S. Ct. at 550-51.

The New Yorker also misplaces its reliance on Broadcasting Publications, Inc. v. District of Columbia (D.C. Cir. 1962), 313 F.2d 554, as distinguishing between national and local publications for purposes of taxing circulation and advertising revenues. The court in Broadcasting Publications confronted the question of whether the District of Columbia properly taxed all the business income of the taxpayer under its statutory provision that the District could tax only the income of a multistate business which is attributable to the business activity within the District. The taxpayer argued that the court’s previous decision in District of Columbia v. Evening Star Newspaper Co. (D.C. Cir. 1959), 273 F.2d 95, compelled that it be taxed only based upon its circulation, apportioned according to the resident of the subscriber.

In finding that the District properly taxed all the taxpayer’s income, the court reasoned that Congress did not make the “circulation test” the exclusive apportionment formula for all types of publications; that a publications business is comprised of various operations, including newsgathering, advertising solicitation, publication, and magazine distribution; and that the total activity must be examined in each case to select the function reflecting the geographic sources of income. It concluded that, unlike Evening Star, where the location of subscribers reflected the geographical derivation of the newspaper’s income because its central function was the dissemination of news and the distribution of newspapers, all the significant factors and the majority of the taxpayer’s activities in publishing the trade magazine occurred within the District. (Broadcasting Publications, 313 F.2d at 559-60.) Thus, as Broadcasting Publications addressed only whether the District was justified in apportioning all the taxpayer’s income to itself under its broad statutory provision requiring apportionment based upon business activities and did not address the question of whether the sale of advertising space is the sale of tangible personal property or whether circulation and advertising revenues should be treated separately for allocation purposes, it lends no support for the New Yorker’s position in the case at bar.

Evening Star, however, did address the question of whether circulation and advertising must be separated for apportionment purposes. In finding that the two should be treated together for apportionment purposes, the court reasoned:

“The interrelationship between [circulation and advertising revenue] is so intimate that a separation would of necessity be arbitrary and artificial. It is apparent that all revenues *** rest ultimately upon circulation and readership. Merchants place and pay for advertising because of those who buy and read papers. The advertising rates are directly related to circulation. The activities of the Taxpayer are directed to one end: the sale of newspapers, which contain news and ads from many and varied sources. That the advertising revenue is greater than the circulation revenues is not controlling; the former is the fruit of the latter. *** In a sense advertising revenues are subsidiary since they are dependent upon circulation.” (Evening Star, 273 F.2d at 103.)

This sound reasoning further supports our conclusion that the circuit court correctly found that advertising and circulation revenues are to be treated together as the sale of tangible property under Illinois’ apportionment formula.

The New Yorker next contends that it was incorrectly taxed on its subscription and newsstand sales from the period 1975-79. The Department increased the New Yorker’s sales apportionable to Illinois for the period 1975-79 from its reported Illinois subscription sales to all newsstand and subscription sales not taxed in other jurisdictions. As previously stated, the Act attributes sales to Illinois where property is delivered or shipped to a purchaser in Illinois (Ill. Rev. Stat. 1977, ch. 120, par. 3 — 304(a)(3)(B)(i)) or, under its “throwback” provision, where the person is not taxed in the State of destination and the property is shipped from an “office, store, warehouse, factory or other place of storage in [Illinois]” (Ill. Rev. Stat. 1977, ch. 120, par. 3 — 304(a)(3)(B)(ii)). While the Department increased the New Yorker’s subscription and newsstand sales for the years 1975-79 under the latter provision, it did not increase the sales for the period subsequent to 1979 due to a statutory amendment, effective September 7, 1979, which added the following proviso to section 3 — 304—(a)(3)(B)(ii) of the Act:

“[Provided, however, that premises owned or leased by a person who has independently contracted with the seller for the printing of newspapers, periodicals or books shall not be deemed to be an office, store, warehouse, factory or other place of storage for purposes of this Section.” Pub. Act 81 — 478, efective September 7, 1979 (amending Ill. Rev. Stat. 1977, ch. 120, par. 3 — 304(a)(3)(B)(ii)).

The New Yorker argues that the “throwback” rule in subsection (B)(ii) is inapplicable to its situation (1) because the 1979 amendment excluding commercial printers from subsection (B)(ii) merely clarified the existing law, and (2) alternatively, because the New Yorker’s printer cannot be found to be the place of shipment in Illinois. Instead, it urges that the applicable provision is subsection (B)(i), and, thus, only the newsstand and subscription sales shipped to the initial purchaser in Illinois are taxable.

We find that the 1979 legislative amendment to the “throwback” provision does not demonstrate that the provision is inapplicable to the New Yorker for the years prior to the amendment. It is presumed when the legislature enacts an amendment that a change in the existing law was intended (Chicago & Illinois Midland Ry. Co. v. Department of Revenue (1976), 63 Ill. 2d 474, 481, 349 N.E.2d 22, 26), but this presumption may be rebutted by circumstances surrounding the enactment which indicate that the legislature intended only to interpret the original act (O’Connor v. A. & P. Enterprises (1980), 81 Ill. 2d 260, 271, 403 N.E.2d 204, 209). The New Yorker places great emphasis on the fact that, during debates on the amendment, representatives in the General Assembly commented that the revenues in issue had never been collected in Illinois previously and that the Department intended to begin to collect the tax. This is inadequate to rebut the presumption here. Nowhere in the legislative histories is there mention of a purpose to clarify the existing language. In fact, the history is replete with references to creating an “exemption” for independent printing plants. See 81st Ill. Gen. Assem., Senate Proceedings, May 17, 1979, at 81; 81st Ill. Gen. Assem., Senate Proceedings, June 15, 1979, at 133, 134.

We further find that the circuit court did not err in concluding that the property here was shipped from an “office, store, warehouse, factory, or other place of storage in [Illinois]” for the years 1975-79, thereby subjecting the New Yorker to the Act’s “throwback” provision. The record shows that the New Yorker entered into a contract with an Illinois printer not only to print its magazine but to be responsible for mailing, delivery, loading, hauling and shipping of the magazine. Although the magazines were shipped from the printer to various wholesalers pursuant to instructions from an independent contractor under contract with the New Yorker to distribute its magazine, the New Yorker determined the quantity of issues to be shipped and it had continued responsibilities relating to the shipments. The contract with the Illinois printer also required it to store press plates from the printing for a short period of time, to provide storage facilities for paper, and to store remaining copies of each issue of the magazine for two weeks before disposal, as directed by the New Yorker. We cannot conclude from this record that the administrative finding that the magazines were “shipped from an office, store, warehouse, factory or other place of storage in [Illinois]” is against the manifest weight of the evidence.

Concluding that Illinois’ apportionment provisions were correctly applied to the New Yorker in the case at bar, we now turn to the New Yorker’s contention that the statutory apportionment as applied to it cannot survive constitutional scrutiny. The New Yorker directs us to the following as indicative that the taxation here is out of appropriate proportion to its business conducted in Illinois and results in an unconstitutional overlap in taxation. Before the tax increases in issue here, the New Yorker was taxed on 40% of its subscription and newsstand revenues, 4.7% of which was apportioned to Illinois. All jurisdictions taxed the New Yorker on 70% of its total advertising revenue. After the increases, 64% of the New Yorker’s circulation revenues and 64% of its advertising revenues were apportioned to Illinois. All jurisdictions taxed the New Yorker on 120% of its combined circulation and advertising revenue earned and 128% of its advertising revenue earned.

We first note in evaluating these percentages that, in placing much emphasis on the fact that a great portion of its advertising functions were performed outside of Illinois yet Illinois taxed 64% of those revenues, the New Yorker ignores the fact that advertising is an integral part of and inseparable from other aspects of the publication of the magazine. In addition, by focusing solely on the sales factor of the apportionment formula, the New Yorker overlooks the proper constitutional analysis here. United States Supreme Court case law has demonstrated that the appropriate focus is not on the proportions of one aspect of the business, as may be reflected in one factor of the formula, but on the relationship between the income attributed to a State and the value of all of its business activities.

In Underwood Typewriter Co. v. Chamberlain (1920), 254 U.S. 113, 65 L. Ed. 165, 41 S. Ct. 45, the Supreme Court, faced with a one-factor formula, held that a corporation did not meet its burden of showing an unconstitutional apportionment by relying on the fact that the State received only 3% of the corporation’s net income yet taxed 47% of its income. The court emphasized that the profits of the corporation were earned by a series of transactions beginning with the manufacture in the State in issue and ending with sale in other States. Underwood, 254 U.S. at 120, 65 L. Ed. at 169, 41 S. Ct. at 47.

Illinois’ three-factor formula, combining the property, payroll and sales factors, is designed to adjust for variances in any given factor so that the factors together represent “business activity.” The United States Supreme Court has recognized the wide approval of the three-factor formula because the payroll, property, and sales, in combination, reflect a large share of the activities by which value is generated and are able to avoid gross distortions. Container Corp., 463 U.S. at 183, 77 L. Ed. 2d at 565, 103 S. Ct. at 2949.

Based upon these three factors, 22% to 30% of the New Yorker’s income for the years 1975-79 was attributed to Illinois, while New York received 65% to 70% of its income. During this period, the magazine was printed in, packaged in, and shipped from Illinois. Some of the magazines were sold to Illinois consumers through subscription and newsstand sales. The New Yorker maintained a branch office in Chicago, employing several employees to solicit advertising, and employed a permanent clerical employee and a rotating employee to be stationed at the printing plant. Based upon this business activity and the fact that no other state except New York has greater business activity than Illinois, we find that the New Yorker has not met the constitutional standards that there be no “minimal connection” between its activities and the taxing state or no “rational relationship” between 22% to 30% income attributed to Illinois and the New Yorker’s business activities. ASARCO, 458 U.S. at 317, 73 L. Ed. 2d at 795, 102 S. Ct. at 3109; Exxon Corp., 447 U.S. at 219-20, 65 L. Ed. 2d at 79,100 S. Ct. at 2118.

Moreover, the New Yorker has not met its burden of showing an overlap in taxation which results in gross distortions. The total business income here, based upon all three factors taxed by all jurisdictions during the six years in issue, ranged from 85% to 103%. This slight overage does not render the formula’s application here unconstitutional. The Supreme Court has recognized the inherent margin of error in any apportionment method and that some risk of duplicative taxation will exist with the states’ varying tax formulas. (Container Corp., 463 U.S. at 183-84, 77 L. Ed. 2d at 565, 103 S. Ct. at 2949-50; Moorman, 437 U.S. at 278, 57 L. Ed. 2d at 207-08, 98 S. Ct. at 2347.) The Elinois Supreme Court has also stated that the purpose of Elinois’ three-factor apportionment formula is to assure not only that a corporation’s business income is not overtaxed but also to avoid any gap in taxing all business income. GTE Automatic Electric, Inc. v. Allphin (1977), 68 Ill. 2d 326, 335, 369 N.E.2d 841, 846-47.

Accordingly, we affirm the circuit court's order upholding the Department’s decisions regarding the New Yorker’s tax deficiencies for the periods 1975-77 and 1979-81.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      It appears the New Yorker’s position is that if it were taxed solely under subsection (B)(i), the only tax on its newsstand sales would be for those newsstand copies picked up by wholesalers in Chicago because the initial purchaser was the Philadelphia-based independent contractor with which it had contracted to sell the magazines. The New Yorker cites two cases from other jurisdictions to support its position relating to initial purchasers, Department of Revenue v. Parker Banana Co. (Fla. App. 1980), 391 So. 2d 762, and Olympia Brewing Co. v. Commissioner of Revenue (Minn. 1982), 326 N.W.2d 642. Because we find that the New Yorker was properly taxed under subsection (B)(ii) of the Act, we need not address this contention.

      The figures submitted by the New Yorker in the circuit court were slightly higher due to the inclusion of a proposed California assessment at approximately 5% rather than 2%. The total business income subject to taxation based upon this variation would be 103.85% for 1975,101.97% for 1976, and 103.85% for 1977.