author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD HOPKINS, Defendant-Appellant.
    Fourth District
    No. 4—91—0711
    Opinion filed May 20, 1992.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1991, a jury convicted defendant, Ronald Hopkins, of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)), and he was later sentenced to seven years in prison. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) as applied in this case, the burglary statute unconstitutionally created a mandatory presumption of an essential element of the crime; (3) the trial court improperly admitted evidence showing he had been fingerprinted in another county under another name; and (4) the sentencing order was defective for failing to specify the number of days of credit defendant was due for time he served in pretrial custody.

We affirm and remand with directions.

I. Facts

The State’s case rested almost entirely upon the testimony of Ronald C. Wells, who testified that he owned the Central Supply Company in Bloomington. His business sold maintenance and cleaning supplies. The store is approximately 5,000 square feet and includes a showroom and display area. The store’s cash register was located about 30 feet from the front door.

Between noon and 1 p.m. on August 30, 1990, Wells was working alone in the store when a black man and a black woman in their forties came into the store, looked around, and asked questions of Wells regarding the store’s merchandise. At first, they conversed near the cash register, but as the three of them talked further and Wells showed them various products displayed on a far wall, they had walked approximately 30 feet from the cash register. At that point, a display area 12 to 15 feet long, 3 feet wide, and 5 feet tall stood between Wells and the cash register.

As Wells and the other two people spoke, a third person, another black male, walked into the store. Wells noted that the third person was wearing a red baseball cap. Because Wells was helping the other “customers,” he did not initially pay much attention to the third person. However, after “about a minute,” he looked over to see what the third person was doing and noticed him behind the counter on which the cash register sat, stooping down as if hiding behind the counter. The cash register drawer was open and the man’s hand was pulling on the cash drawer. Wells could see all of this by looking over the top of the five-foot display between him and the cash register. Wells could see the person’s head and described the person’s hand on the cash drawer as making “a graspy motion.”

Wells yelled, “What are you doing behind my counter?” He then walked toward the cash register, picked up a telephone on the way, said “I’m calling the law,” and proceeded to dial 911 to summon the police. The telephone was within five feet of the cash register. At that point, the person behind the cash register ran from behind the counter and walked out the front door.

Wells then walked over to the other two people who were still in the store and asked them if they knew the third person or “if they were involved in it.” They told Wells, “Oh no, oh, no. We don’t know that person and we’re getting out of here. We don’t want to get involved in this.” They then left the store within about 10 seconds after the third person had left. Wells followed them outside and within another 10 seconds a police car drove up. Wells told the officers what had happened and pointed out the two people to whom he had been showing products, who were then walking up the street, about a block and a half away. The police left Wells and soon returned to the store to bring Wells to a location where a car had been stopped.

The police asked Wells if he recognized the people in the car. The car contained four people, and Wells identified the two people seated in the back seat as the two who entered the store first. Wells also identified the passenger in the front seat as the person Wells saw with his hand in the cash register drawer. Wells did not recognize the driver.

Wells identified defendant as the person who had gone behind the counter and opened the cash register. Although defendant was wearing a blue baseball cap in the car, Wells noted that defendant had worn a red baseball cap in the store.

As Wells watched, a police officer asked defendant to get out of the car and then searched it. The officer found a red baseball cap under the front passenger seat. When the officer showed the cap to Wells, he identified it as the same type of baseball cap that defendant had been wearing in the store. Wells also identified the cap at trial when it was introduced as an exhibit.

Wells testified that defendant and his confederates never attempted to buy anything in the store. Regarding the question of defendant’s authority to enter the business, Wells testified as follows:

“Q. [The prosecutor]: Did you ever give the Defendant permission or authority to enter your business for the purpose of stealing anything?
A. [Mr. Wells]: No.
Q. Your business is a retail store, is it not?
A. Yes.
Q. Sells to customers off the street?
A. Yes, mm-hmm.
Q. And would the general public have authority to enter your store for the purpose of buying products?
A. Yes.
Q. Would you give anyone permission to enter your store for any other purpose, such as stealing?
[Defense attorney]: I’d object, Your Honor. That’s a leading question.
THE COURT: Well, he’s answered the question, sustained.
[The prosecutor]: I’m sorry?
THE COURT: He answered a question earlier that he said he didn’t give him authority to do so.”
On cross-examination, Wells further testified as follows:
“Q. [Defense counsel]: *** [W]hen we say — or I say that you’re open for business, you’re actually inviting people to come into your business, are you not?
A. [Mr. Wells]: Yes.
Q. You’re hoping they’ll come in?
A. Yes, I am.
Q. Do you have any signs posted in the building or in the front of the building that would indicate no thieves have authority to enter this building?
A. No.
Q. Okay. So a normal individual approaching your building, seeing that it’s a retail establishment that is open for business, would assume that he can walk right on in?
A. Yes.”

Officer Albert Emery of the Bloomington police department testified that while on patrol on August 30, 1990, he responded to the call from Central Supply Company. When Emery arrived, Wells pointed out two people walking down the street who had just left the business. Emery pursued them and saw them get into a car. Emery stopped the car just as it started to pull out of a parking lot. He then directed another officer to bring Wells to that location. When Wells arrived, he identified three of the people in the car as having been in his store. Wells also identified the defendant as the man who had had his hand on the cash drawer. Emery searched the car after its occupants got out, and he found a red baseball cap under the front seat on the passenger side, where defendant had been sitting.

Emery arrested defendant and took him to the Bloomington police station to book him. While there, Emery asked defendant for his name, address, and other pertinent information. Defendant told Emery that his name was Leon Scott, and he signed the back of the booking sheet as Leon Scott.

Officer Randall McKinley testified that he is a detective with the Bloomington police department who has been trained in the examination of latent fingerprints and rolled fingerprints for purposes of identification and classification. McKinley testified that in November 1990 he received a set of rolled fingerprints “from St. Louis County” under the name of Ronald Hopkins, which he then compared to the fingerprints from defendant under the name of Leon Scott. McKinley determined that the fingerprints of Leon Scott obtained from defendant’s booking card in the present case were the same as the fingerprints of Ronald Hopkins.

The State presented no further evidence, and the defense presented no evidence at all. The jury convicted defendant of burglary.

II. Sufficiency Of The Evidence

Defendant first argues that the State failed to prove him guilty beyond a reasonable doubt. He notes that the burglary statute, in pertinent part, reads as follows: “A person commits burglary when without authority he knowingly enters *** a building *** with intent to commit therein a *** theft.” (Ill. Rev. Stat. 1989, ch. 38, par. 19— 1(a).) Citing People v. Perruquet (1988), 173 Ill. App. 3d 1054, 1063-64, 527 N.E.2d 1334, 1340-41, defendant argues that the State failed to prove that at the time he entered the store, he intended to commit a theft. According to defendant, we should conclude instead, as did the Perruquet court, that defendant could have entered the store for the purpose of looking at or purchasing merchandise and then formed the intent to open the cash register and steal money therefrom.

The issue of defendant’s intent at the time he entered the store, as well as the issue we discuss later of whether he had authority to enter the store, arises because the State charged defendant with the burglary in circumstances when the “burglarized” store was otherwise open for business. In more traditional (and common) burglary cases — those involving breaking into locked homes or businesses, usually at night, and stealing property located therein — no issue normally arises regarding whether the accused burglar either had authority to enter the burglarized premises or did so with the intent to commit theft. Typically, the owner of the burglarized premises testifies that the accused burglar had no authority to enter, and most burglary defendants do not even challenge that assertion. Further, in most burglary cases, property has been stolen from the locked premises by whoever broke in, typically making crystal clear what almost everyone would conclude anyway: that the burglar broke in with the intent to steal property located within those premises and succeeded in doing so.

The burglary charge before the court in this case is not typical because it involves no locked doors and no entry by stealth. Instead, this charge involves a retail establishment, open for business at the time of the alleged burglary, which invited potential customers to come in off the street, look around at the stocks within, and (the store’s owner hopes) make a purchase. As shown by defendant’s arguments in the present case, this charge of burglary — commonly known throughout central Illinois as a “Jones burglary” — often raises serious questions regarding both the accused burglar’s intent to steal at the time he entered the store and his lack of authority to enter.

The circumstantial evidence in this case strongly suggests a preconceived plan to steal money from the cash register. The two people who first entered the store did so simply to serve as a distraction for defendant’s later activities at the cash register. Although Wells was not certain about how much time passed from the point at which defendant entered the store until Wells saw him at the cash register, Wells estimated that period as “about a minute.” Further, defendant upon entry never spoke or attempted to speak to the only three people in the store; he apparently proceeded immediately and directly to the cash register, crouched behind the counter on which it was located, and opened its cash drawer.

Other circumstances also strongly support the jury’s inference of defendant’s intent to steal upon entry: (1) defendant’s two confederates denied knowing him even though they were found within minutes after that denial sitting in the same car with him; (2) defendant immediately ran out of the store upon being confronted by Wells; (3) in the few minutes that elapsed from the time defendant ran out of the store until Wells saw him as a passenger in the car, defendant had hidden the red baseball cap he had worn in the store under the front seat of the car and had put on a blue baseball cap, suggesting thereby that he hoped to confuse anyone who might try to identify him; and (4) defendant gave a false name when the police booked him at the police station.

The State can prove a defendant’s intent by inferences drawn from his conduct and from surrounding circumstances. (See People v. Richardson (1984), 104 Ill. 2d 8, 12-13, 470 N.E.2d 1024, 1026-27; People v. Fisher (1980), 83 Ill. App. 3d 619, 622, 404 N.E.2d 859, 862.) When the trier of fact in a burglary case decides whether the evidence was sufficient in a burglary case to infer a defendant’s intent to commit theft, relevant circumstances it should consider include the time, place, and manner of entry into the premises, the defendant’s activity within the premises, and any alternative explanations which may explain his presence. Richardson, 104 Ill. 2d at 13, 470 N.E.2d at 1027.

Defendant’s challenge on appeal to the sufficiency of the evidence to convict him must fail if any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could conclude that the State had proved the essential elements of the crime beyond a reasonable doubt. (See People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.) When we consider the evidence in the present case in accordance with this standard, we conclude that the evidence was sufficient to prove the defendant guilty of burglary. The jury could easily have concluded beyond a reasonable doubt that none of the people who entered Central Supply Company on the date in question had any intent other than for defendant to try to steal money from the cash register.

III. Defendant’s Argument That The Burglary Statute Unconstitutionally Allows An Element Of That Offense To Be Presumed

Defendant next argues that a “Jones burglary” charge is uncon-

stitutional because it provides for a presumption of one of the elements of burglary — entry without authority — once the State has proved that defendant entered with the intent to commit the offense of theft. In support of his argument, defendant cites People v. Weaver (1968), 41 Ill. 2d 434, 438-39, 243 N.E.2d 245, 248, wherein the court wrote the following:

“While a common-law breaking is no longer an essential element of the crime of burglary [citations], the statute requires an entry which is both without authority and with intent to commit a felony or theft. (Ill. Rev. Stat. 1967, chap. 38, par. 19 — 1.) A criminal intent formulated after a lawful entry will not satisfy the statute. But authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open.”

(See also People v. Blair (1972), 52 Ill. 2d 371, 374, 288 N.E.2d 443, 445 (“authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open”); People v. Bailey (1989), 188 Ill. App. 3d 278, 288, 543 N.E.2d 1338, 1344; People v. Drake (1988), 172 Ill. App. 3d 1026, 1028, 527 N.E.2d 519, 520 (“[defendant did not have authority to enter the grocery store to commit a forgery”); People v. Stager (1988), 168 Ill. App. 3d 457, 459, 522 N.E.2d 812, 814 (“entry with intent to commit a theft cannot be said to be within the authority granted patrons of a business building”); People v. Boose (1985), 139 Ill. App. 3d 471, 473, 487 N.E.2d 1088, 1090, (“[u]nder the ‘public building’ aspect of burglary, the element of entry without authority need not be established apart from the element of entry with intent to commit a theft”).) Based upon this line of authority, defendant argues that application of the burglary statute in a “Jones burglary” case, such as the present one, “compels the mandatory presumption that proof of intent to enter to commit a theft establishes the element of entry without authority. There is simply nothing left for the jury to decide on the issue.” We disagree.

The short answer to defendant’s argument is that nowhere in the jury instructions or in the prosecutor’s closing argument do the words “presumption” or “inference” appear. Instead, the jury was properly instructed that the State had to prove beyond a reasonable doubt that defendant’s entry into the Central Supply Company was without authority, and the prosecutor argued that he had presented direct evidence to prove that element. On the subject of defendant’s authority to enter, the prosecutor argued the following:

“The elements, ladies and gentlemen, there’s — the elements of burglary, there are several things that have to be proven. That the Defendant entered the business knowingly, the building knowingly. I think that’s obvious that that’s been established. That he did so without authority. And you heard Mr. Wells say that he would never have given anyone authority to enter his business for the sole purpose of stealing. And I don’t think any businessman or anybody would. If it’s your home or it’s a business, no one has authority to enter there with the sole intent of committing a theft. I think it’s just that clear. ***
I would also indicate, ladies and gentlemen, that in addition to the first two elements the Defendant, in addition to entering the building without authority, it had to be with the intent to commit a theft.” (Emphasis added.)

These quotations from the prosecutor’s argument make clear that he argued that the State had met its burden of proof on the element of defendant’s lack of authority by presenting direct testimony on that point from Wells. In addition, the emphasized portion of the prosecutor’s remarks makes clear that he also informed the jury that the element of defendant’s entering without authority was distinct and different from the element of defendant’s entry with the intent to commit a theft therein. Accordingly, we reject defendant’s argument that he was denied due process because the existence of an element was presumed; instead, we find that the trial court properly instructed the jury on each of the elements the State had to prove beyond a reasonable doubt, and neither the trial court nor the prosecutor said anything to the jury about presumptions which would somehow reduce the State’s burden.

IV. Evidence That Defendant Had Been Fingerprinted In Another County Under Another Name

Defendant next argues that the prosecutor improperly presented evidence that defendant’s fingerprints were taken in a collateral criminal matter and that he used an assumed name when he had been arrested in an unrelated case. Defendant concedes that he did not object at trial when the State presented this testimony, but he argues we should consider it as plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) because the evidence suggesting other crimes was totally irrelevant and highly inflammatory.

In support of this argument, defendant cites only the testimony of Officer McKinley that he had compared defendant’s fingerprints with fingerprints “from St. Louis County” that the Bloomington police department obtained in the name of Ronald Hopkins. McKinley testified that the known prints of Ronald Hopkins matched the prints obtained from defendant. Defendant argues that in Illinois, “evidence of the defendant’s fingerprints taken in a collateral matter or evidence of an assumed name is irrelevant since both imply prior criminal conduct.” We reject both prongs of defendant’s claim and find no error — much less plain error — in receiving McKinley’s testimony into evidence.

In support of his argument, defendant cites People v. Hudson (1972), 7 Ill. App. 3d 333, 337, 287 N.E.2d 297, 301, for the proposition that testimony about a defendant’s fingerprints taken in another matter and on file at the Illinois Bureau of Identification was error because it implied defendant’s involvement in other crimes. Although defendant has fairly stated the holding in Hudson, we disagree with it and decline to follow that holding. Instead, we agree with two more recent decisions that suggest a trier of fact may infer many different explanations for some governmental agency’s having a defendant’s fingerprints on file. In People v. Prewitt (1987), 160 Ill. App. 3d 942, 949, 513 N.E.2d 977, 982, the court wrote the following:

“There are a variety of reasons for a police department to have fingerprints on file, for example, fingerprints of crime victims may be on file, as may the fingerprints of security personnel. In addition, in the present case the prosecutor made no references to prior arrests or convictions ***. Because the reference was singular and ambiguous, in that it did not indicate that the defendant had a prior criminal record, we hold that the statement did not constitute reversible error.”

In People v. Gordon (1981), 94 Ill. App. 3d 764, 767-68, 419 N.E.2d 66, 69-70, the court that authored Hudson distinguished it to its limited factual context and wrote the following:

“It is reasonable to believe that fingerprints may be on file with the police for a number of reasons unrelated to prior criminal activity. For example, fingerprints of crime victims may be on file, as may the fingerprints of security personnel. In addition, in the present case the prosecutor made no references to prior arrests or convictions, nor was the fingerprint card introduced into evidence.
*** The reversal of the defendant’s conviction in Hudson and remand for a new trial were based on the cumulative effect of several errors. In the present case the only reference to the defendant’s prints being on file with the police prior to his arrest for the instant offense was made during the prosecutor’s
opening statement. Because the reference was singular and ambiguous, in that it did not clearly indicate that the defendant had a prior criminal record, we hold that its inclusion in the prosecutor’s opening statement does not constitute reversible error.”

We agree with the above analyses but add the following two points. First, the testimony in the present case did not even cite a police agency as the source of defendant’s fingerprints; McKinley’s testimony merely indicated that he received a set of fingerprints “from St. Louis County.” Trial courts routinely instruct juries, as happened here, that they “should consider all the evidence in the light of your own observations and experience in life.” (Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981).) Surely one of the “common experiences” in life that many jurors have had or know about is that governmental agencies frequently fingerprint persons seeking or obtaining governmental employment. Accordingly, in addition to the reasons discussed in Prewitt and Gordon, we find defendant’s claim that this jury must have concluded that he had a prior criminal record because his fingerprints were on file with “St. Louis County” to be highly speculative and groundless.

Second, as opposed to the holdings in Prewitt and Gordon, which state that the admissibility of the evidence in those cases “did not constitute reversible error,” we emphasize that the presentation of this evidence in this case was no error at all. Thus, we need not address defendant’s plain error claims.

As a last point, we similarly reject defendant’s argument that the evidence of his correct name was irrelevant and prejudicial. In support of this argument, defendant cites People v. Burns (1988), 171 Ill. App. 3d 178, 187, 524 N.E.2d 1164, 1170, where the court wrote that “evidence adduced at trial solely to raise the inference that the defendant had used assumed names in order to evade apprehension by law enforcement officers for prior criminal offenses is highly prejudicial and improper.” Burns does not support defendant’s claims here because he gave the police a false name not in some prior case, but in the case on trial, seemingly to thwart the police investigation in this very case into his background. Although we view the probative value of this evidence as somewhat minimal, we find no error in its admission because we view its prejudicial effect as even less than that.

V. The Order Of Restitution

Defendant last argues that the trial court failed to specify in its sentencing order the number of days of credit on his prison sentence defendant was due for time served in the county jail. The State concedes this point, and we agree. Accordingly, we remand this case to the trial court to conduct a hearing in accordance with the recent decision of this court in People v. Donnelly (1992), 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980, to determine how much credit for time served defendant is due and to modify the sentencing order accordingly. In all other respects, we affirm the judgment and sentence imposed in this case.

VI. Conclusion

For the reason stated, we affirm the judgment and sentence of the circuit court and remand this case for further proceedings in accordance with the directions set forth herein.

Affirmed and remanded with directions.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID A. WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—91—0535
    Opinion filed May 29, 1992.

      Sherri Carr, of Kankakee, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Raymond L. Beck, of Chicago (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, David A. Williams, appeals the revocation of his probation. We reverse.

The record shows that the defendant entered into a negotiated agreement with the State wherein in exchange for his plea of guilty to unlawful possession of a controlled substance he was placed on probation. Pursuant to the terms of his probation, the defendant was to pay court costs and a $25 street value fine, obtain a drug evaluation, and comply with the terms of that evaluation.

On a status date in October of 1990, the defendant produced evidence showing that he had paid his fine and court costs. He also presented evidence establishing that he had submitted to a drug evaluation at Silver Cross Hospital. Due to a positive drug test, Silver Cross had set up an extensive treatment program. The defendant contested the positive drug test finding, arguing that he had not used any drugs and that the test result was “incorrect.”

In December of 1990, the defendant asked the court for additional time to secure another facility to conduct a drug screening. The court granted the defendant’s request and told him that he had better be in compliance by March of 1991 or the court would send him to prison. At the conclusion of the hearing, the court told the State to file a petition to revoke the defendant’s probation.

Thereafter, on March 21, 1991, a “hearing” was held on the matter. At the onset of the “hearing,” the court informed the defendant that the burden was on him to present evidence showing that he was in compliance with the terms of his probation. The defendant presented a report from the St. Joseph Medical Center showing that he had completed six weeks of classes in that facility. The report also showed that the defendant had continually submitted to random drug tests and that each test result was negative. Finally, the report indicated that the defendant had failed to comply with some of the terms of his treatment program.

Defense counsel indicated that he tried to contact the counselor in charge of the defendant’s treatment program to question him about the defendant’s situation. However, he was unable to reach him for any comments or a status report. Defense counsel also indicated to the court that the State had told the defendant it would withdraw the petition and just have the defendant undergo random drug tests through the probation department.

Other evidence from this “hearing” showed that counsel for the State did not present any evidence or even speak during the entire matter. The trial court found the defendant was not in compliance with the terms of his probation and, as such, revoked his probation. The court thereafter sentenced the defendant to two years’ imprisonment.

On appeal, the defendant first argues that the trial court erred in revoking his probation. Specifically, he contends that the court failed to give him an adequate hearing on the matter and that it improperly shifted the burden of proof. He also notes that he was not given specific information as to which terms of his probation he failed to meet.

A defendant is entitled to a probation revocation hearing. At such a hearing, the State has the burden of going forward with the evidence and proving the violation by a preponderance of the evidence. (People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745.) The defendant is entitled to written notice of the alleged violation, to disclosure of the evidence against him, to be heard in person and to present testimonial and documentary evidence, to confront and cross-examine adverse witnesses, to be judged by a neutral and detached hearing body, and to receive a written statement by the fact finder stating the evidence relied on and the reason for revocation. People v. Hoyt (1984), 129 Ill. App. 3d 331, 472 N.E.2d 568.

In the case at hand, the State argues that the defendant received a proper hearing or at least received the “equivalent thereof.” We disagree.

Here, the court did not require the State to prove its case by a preponderance of the evidence. In fact, it did not even require the State to present any evidence. Instead, it told the defendant that it was up to him to prove he was in compliance. We find that this was erroneous, since by doing this the court improperly shifted the burden of proof to the defendant.

Additional error occurred when the State failed to file sufficient notification of the defendant’s alleged violations. The probation revocation petition stated only that the defendant had failed to comply with the recommendations of the ordered drug evaluation. However, evidence was presented showing that the defendant was in compliance with a number of the terms of his treatment. As such, the State should have set forth what terms of his treatment the defendant failed to meet. This is especially true in this case since it appears that the State considered the defendant to be in compliance as long as he continued to have negative results from his drug tests.

Based on the foregoing, we find that the trial court failed to provide the defendant with an adequate hearing. We note that our disposition of this issue renders moot the defendant’s remaining issue.

The judgment of the circuit court of Will County is reversed.

Reversed.

McCUSKEY and SLATER, JJ., concur.


text:
    DORENE WRIGHT, Plaintiff-Appellant, v. ST. JOHN’S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendant-Appellee.
    Fourth District
    No. 4—91—0476
    Opinion filed May 28, 1992.

      Gregory A. Scott, of Scott & Scott, P.C., of Springfield, for appellant.
    Richard J. Wilderson and Bradley E. Huff, both of Graham & Graham, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Dorene Wright, brought an action for retaliatory discharge against defendant, St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis. The trial court granted summary judgment in favor of defendant, and plaintiff appeals. We affirm in part, reverse in part, and remand.

I. Background

St. John’s Hospital hired plaintiff in August 1981 to work as a licensed practical nurse (LPN). In 1983, during the course of her employment, plaintiff injured her back while bathing and repositioning a patient. During 1983 and 1984, as a result of her back injury, plaintiff was seen by several physicians and hospitalized several times. Her doctor, Walter W. Wheelhouse, wrote a letter in July 1984, stating his opinion that plaintiff could not return to her normal duties as an LPN “since she is unable to lift patients, as most nurses would do in their daily activities.”

Plaintiff instituted an action with the Illinois Industrial Commission in March 1983 under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). In August 1984, plaintiff and defendant executed a settlement contract lump sum petition and order in the sum of $60,000, settling her Industrial Commission action. That agreement included statements that plaintiff’s injury was to the “whole person” and that “petitioner has chosen another line of work.”

In November 1984, Dr. Wheelhouse reduced plaintiff’s weight-lifting restriction. Plaintiff then attempted to return to work as an LPN. However, Dr. Pradeep Kulkarni, the hospital’s employee health physician, examined her in January 1985 and concluded that she “was not physically capable *** of performing the physical activities required of an LPN at St. John’s Hospital.” Defendant then offered her several alternative positions at the hospital, but plaintiff either declined those positions or did not have the requisite qualifications to be hired.

In February 1985, plaintiff filed a two-count complaint against defendant. Count I sought injunctive relief, ordering defendant to rehire plaintiff as an LPN. Plaintiff voluntarily dismissed that count in August 1990. Count II accused defendant of retaliatory discharge (see Ill. Rev. Stat. 1989, ch. 48, par. 138.4(h)) and sought both compensatory and punitive damages. In August 1990, the trial court granted defendant’s motion for summary judgment on count II. Plaintiff now appeals that judgment.

II. Summary Judgment

“Summary judgment is properly granted when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 246, 571 N.E.2d 1107, 1110; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The party moving for summary judgment must show, as a matter of law, that it is entitled to judgment. (Gardner, 213 Ill. App. 3d at 250, 571 N.E.2d at 1112.) In making this decision, the trial court may draw inferences from undisputed facts; if reasonable persons could draw divergent inferences from the undisputed facts, the issue should be decided by the trier of fact and the motion should be denied. “In light of the standard, the trial court does not have any discretion in deciding the matter.” (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272, 586 N.E.2d 1211, 1215.) On review, this court reviews the granting of summary judgment de novo — that is, this court must determine if the trial court correctly decided that no genuine issues of material fact were present. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167; Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240, 494 N.E.2d 830, 833-34; see also Fegan, Appellate Court Should Rethink Standard of Review for Summary Judgments, Chicago Daily Law Bulletin, Nov. 26, 1991, at 2, col. 1.

We note with some perplexity that the trial court’s order in this case included a section entitled “findings of fact.” As stated earlier, a trial court should grant a motion for summary judgment only when no genuine issue of material fact exists. When granting that motion, a trial court resolves only questions of law. By definition, a trial court should deny summary judgment if it must make “findings of fact.” Because we are reviewing this case de novo, we will disregard the trial court’s purported “findings of fact” as we determine whether defendant was entitled to summary judgment as a matter of law.

III. Retaliatory Discharge

Plaintiff raises two arguments on appeal: (1) what we consider to be a “traditional” claim of retaliatory discharge, and (2) a claim that she has a statutory right under the Act to be assigned by the hospital to some suitable alternative employment. We will address the traditional claim first.

A. “Traditional” Retaliatory Discharge

To sustain an action for retaliatory discharge, a plaintiff must prove three propositions: (1) defendant discharged plaintiff; (2) defendant did so in retaliation for her conduct; and (3) defendant’s discharge of plaintiff clearly violated public policy. (See Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911; Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 524-26, 478 N.E.2d 1354, 1356; Scheller v. Health Care Service Corp. (1985), 138 Ill. App. 3d 219, 222-23, 485 N.E.2d 26, 28-29.) A defendant in a retaliatory discharge action is entitled to summary judgment if it shows that no genuine issue of material fact exists in that the plaintiff cannot prove any one or more of these propositions.

Construing the pleadings, depositions, and affidavits in a light most favorable to plaintiff, the nonmoving party, as we are required to do under In re Estate of Whittington (1985), 107 Ill. 2d 169, 176-77, 483 N.E.2d 210, 215, we hold that the trial court properly granted summary judgment because defendant showed that plaintiff was not discharged in retaliation for her filing a claim with the Industrial Commission.

The complaint alleges that defendant retaliated against plaintiff because of her workers’ compensation claim; however, the record establishes that defendant refused to rehire plaintiff as an LPN solely because of her inability to perform the physical tasks of an LPN. (See Scheller, 138 Ill. App. 3d at 223, 485 N.E.2d at 28.) Portions of plaintiff’s December 1986 deposition were added to the record as part of defendant’s motion for summary judgment and plaintiff’s response to that motion. From that deposition, the following conclusions are clearly evident: (1) plaintiff’s disability limited her physical abilities; (2) the defendant hospital had established basic physical ability requirements that its LPNs had to meet; and (3) plaintiff’s physical inability to meet these standards, not some act of retaliation, precluded plaintiff from returning to work as an LPN for defendant. Plaintiff testified as follows:

“Q. [By Counsel for defendant:] Was it your intention at that time to pursue a different line of work?
A. *** I was agreeable to working at another line of work since I was told I could not work as an LPN.
Q. You had been been told by Dr. Wheelhouse you could not work as an LPN?
A. Dr. Wheelhouse and the hospital because the hospital statement was I could not work as an LPN with any limitation on my position.
* * *
Q. *** Were you offered some kind of position?
A. No, I was not. I was told LPN’s could not be employed by the hospital with any restrictions at all.
* * *
Q. Dr. Wheelhouse in May of ’85 states you still have not progressed to preaccident condition and have some weakness in limitation. Do you agree with that?
A. Yes, I do.
Q. That that was your condition in May of ’85?
A. That I had not returned to previous before-injury condition, yes, I do.
Q. And that you had weakness?
A. Yes, I do.
Q. Advised caution with heavy lifting or overhead lifting? That is July of ’84 he advised caution with heavy lifting and overhead lifting, is that right?
A. Yes.
Q. He continues to feel that those limitations were still applicable in May of 1985. You disagree with that?
A. I assume that is what he felt, if that is what the letter says.
Q. Do you feel you have limitations?
A. Yes, I feel I have slight limitations.
Q. What are those?
A. Well, I still do have the problem, to some degree, with
my eyes. I still have slight weakness on the left side.
* * *
Q. [Did] [a]nyone ever told [sic] you that you are physically able to perform the LPN job at St. John’s Hospital?
A. Dr. Trudeau sent a letter in fact stating in his opinion I was capable of functioning as an LPN as nursery or newborn nursery or pediatrics or even in the health care office.
Q. Who said that, Dr. Trudeau?
A. Dr. Trudeau. And Dr. Wheelhouse and I had talked about it the last time I was in his office. He said there was many functions I could function as I could not return to the same floor I was on because of the heavy lifting.
Q. Has anyone ever told you you could work without those restrictions and restrictions to those areas as LPN?
A. No, sir.
* * *
Q. The complaint that has been filed in the Industrial Commission states you have chosen another line of work. Had you, at that time, chosen another line of work?
A. No, and the day that was in front of the hearing board my attorney, on my behalf, because I insisted, called the agent and clarified to me that that meant I was agreeable to choose another line of work besides LPN because I was informed I could not work as an LPN. Under no way did I understand I was choosing another line of work other than the hospital. And I told in front of the judge that in no way meant I could not get my job back at the hospital.
Q. The job or a job?
A. A job.
Q. Not the LPN job, right?
A. At that time I was not able to function as an LPN at the hospital because of their restrictions against my weight [(i.e., lifting)] restrictions.
Q. But your own Dr. Wheelhouse in July, just a couple of months before you signed this said you were not able to work as an LPN, is that true?
A. That is why I said I was under the understanding I was agreeable to work in other line of work other than LPN.
Q. It is not only as a hospital restriction, it is your own doctor?
A. I was understanding I was able to work in the nursery.
Q. In July of’84?
A. I had a ten-pound weight limit. There are very few ten-pound babies. I called the hospital and asked if I could not be placed in the nursery. They said their policy was [that if a person] had any restriction you [(that person)] could not work as an LPN. So I agreed to work anywhere in the hospital.” (Emphasis added.)

In her deposition, plaintiff admits that she is physically restricted and that the defendant hospital had not employed her in her former position as an LPN because she is not physically able to perform the minimal physical requirements of the job. Therefore, whether plaintiff could perform as an LPN in some other department of the defendant hospital is not relevant.

In May 1985, Dr. Wheelhouse concluded that although plaintiff “has not progressed to her pre-accident physical condition, and still has some weakness and some limitations *** she should be able to perform her regular working duties with precautions.” Dr. Wheelhouse then suggested that plaintiff could perform the duties of an LPN in the nursery, pre-operation, or post-partem departments. However, the record makes clear that the defendant hospital does not have different classes of LPNs — those who can perform all the duties of an LPN and those who are restricted-duty LPNs — that differ between departments of the hospital. Dr. Kulkami explained the hospital’s position on this point as follows:

“Q. [By counsel for plaintiff:] It is true that she could most likely work in the newborn nursery[,] pre-op and postpartum with the findings that you had in January of ’85, isn’t that true?
A. Well, again, in January of 1985 when I was asked to evaluate the patient, I do not necessarily evaluate them whether they are going to be working in an office situation or whether they are going to be working on the floor, whether they’re going to be in newborn nursery or intensive care or neurology floor. It doesn’t really matter.
I’m given a set of criteria as far as their physical demands are concerned, and when I say that the person is not capable of working as a nurse, that could be in any capacity at any floor in any nursing department.
Q. Is there any weight limitation that you are given in your standards that a person must be able to perform in order to be qualified to work as an LPN?
A. I don’t think there is any definite weight limitation given but I think having worked in the hospital for many years, I am fully aware of what a nurse sometimes has to perform in terms of weight limitations, I mean, in terms of lifting patients as well as doing other chores.
Q. Doctor, would it surprise you to learn that this lady is working as an LPN at SIU School of Medicine and has continued to do so since April of 1986?
A. It depends on what department, in what capacity the person is working.
* * *
*** In other words, the person could be working in an office situation or in an administrative situation where the person may not have any physical demands as compared to a person working in an intensive care unit where a nurse may have to lift a two hundred pound patient or help a two hundred pound patient who is not capable of helping himself at all so there are two extremes here we are talking about.
* * *
Q. It is true, Doctor, is it not, that these limitations that you found that would exclude her from working in your opinion would apply only to the situation as an LPN, is that correct?
A. That’s correct.”

Dr. Kulkarni’s statement provides further evidence that the hospital does not distinguish between LPNs in their employment. The defendant hospital may choose not to establish multiple categories of LPNs — those who can do heavy lifting and those who cannot — and that is apparently what it has done. The hospital’s choice is neither unreasonable nor unlawful and may reflect sound administrative policy, providing for maximum flexibility in the utilization of LPNs throughout the hospital. In any event, the issue is one for the hospital, not the courts, to resolve.

“Illinois law does not obligate an employer to retain an at-will employee who is medically unable to return to [her] assigned position.” (LaPorte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 1093, 572 N.E.2d 1209, 1212.) The court in LaPorte, relying on Horton v. Miller Chemical Co. (7th Cir. 1985), 776 F.2d 1351 (applying Illinois law), concluded that “medical inability to work was a ‘legitimate nondiscriminatory reason’ for discharge and the defendant’s failure to reassign plaintiff was immaterial to whether plaintiff was wrongfully discharged.” (LaPorte, 213 Ill. App. 3d at 1093, 572 N.E.2d at 1212.) We find no genuine issue of material fact to support plaintiff’s claim for “traditional” retaliatory discharge.

B. Retaliatory Failure To Assign To Suitable Alternative Employment

At oral argument, plaintiff clarified that her second claim was distinct and different from “traditional” retaliatory discharge. Her second claim was based upon section 4(h) of the Act, which reads, in part, as follows:

“It shall be unlawful for any employer *** to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 138.4(h).)

Plaintiff contends that this section entitles her to continued employment by defendant “in a suitable capacity,” and that defendant’s failure to assign her to “active service in a suitable capacity” at the hospital, consistent with her physical condition, provides her with a cause of action under the Act. She claims that on this record, it is at least arguable that defendant denied her this statutory right as a result of the workers’ compensation action she brought against St. John’s Hospital, thus giving rise to her claim that the defendant’s conduct amounts to retaliatory failure to assign to suitable alternative employment.

The Act is remedial in nature and is designed to promote the general welfare. A cause of action for retaliatory discharge exists in furtherance of this public policy. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181, 384 N.E.2d 353, 357.) The State of Illinois has determined that the right to pursue workers’ compensation benefits should not be interfered with by discharge or an employer’s failure to rehire or recall an employee to active service in a suitable capacity. (Ill. Rev. Stat. 1989, ch. 48, par. 138.4.)

“The fact that defendant had no duty to rehire is irrelevant in retaliatory discharge or refusal to rehire or recall cases involving at-will employees since the material issue is not whether the employer has an obligation to retain a worker, but why the employer discharged the employee.” (Emphasis added.) Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 175, 533 N.E.2d 1, 5.

Illinois employers are not required to rehire disabled employees, but the employer cannot terminate or refuse to rehire because the employee sought benefits under the workers’ compensation laws. (McEwen v. Delta Air Lines, Inc. (7th Cir. 1990), 919 F.2d 58, 60.) However, “[c]ausality does not exist if the basis for discharge is valid and nonpretextual.” Slover v. Brown (1986), 140 Ill. App. 3d 618, 621, 488 N.E.2d 1103, 1105.

The issue before this court is whether the trial court was correct in determining that no genuine issues of material fact were present. Defendant presented affidavits purporting to show that defendant offered plaintiff other positions, such as in the medical records division, the business office, radiology, and as a dietary hostess. Plaintiff presented affidavits purporting to show that she was interested in accepting a suitable position with the defendant and disputing defendant’s claims that it made any bona fide offers to place her in a suitable alternative employment. These disputes present a genuine issue of material fact, and summary judgment as to this portion of plaintiff’s complaint should not have been granted. Although defendant was not required to create a job for plaintiff, this case presents questions of fact of whether there was suitable alternative employment already available for plaintiff, and whether plaintiff was offered the same by defendant.

IV. Conclusion

The trial court correctly determined that no genuine issue of material fact is present in this case regarding plaintiff’s failure to demonstrate that she was discharged in retaliation for bringing a workers’ compensation claim. However, genuine issues of material fact exist in regard to plaintiff’s claim that defendant has failed to rehire or recall her to active service in a suitable capacity because of her filing a workers’ compensation claim. Accordingly, we affirm in part and reverse in part the order granting summary judgment, and remand for further proceedings.

Affirmed in part; reversed in part and remanded.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD E. CARNEY, Defendant-Appellant.
    Fourth District
    No. 4—91—0611
    Opinion filed May 20, 1992.

      James L. Ayers, of Monticello, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Clifford E. Carney was convicted of aggravated criminal sexual abuse (count I) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16) and sentenced to 48 months of probation, with the first six months to be served in periodic imprisonment and the first year to be spent under intensive conditions. Defendant appeals, asserting three issues: (1) his guilt was not proved beyond a reasonable doubt; and the court erred in entering judgment on the conviction when (2) he was actually exempt from criminal liability for conducting a reasonable medical examination of his stepdaughter, and (3) he lacked the specific intent to gain sexual gratification or arousal as required by statute. We affirm.

In September 1988, defendant Clifford Carney was indicted on two counts of aggravated criminal sexual abuse (counts I and II) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(b)), and in February 1990, on one count of criminal sexual assault (count III) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3)). Following a jury trial in January 1991, in McLean County, defendant was found guilty on counts I and II; however, the jury was unable to reach a verdict on count III. Accordingly, the trial court ordered a mistrial as to that count. Defendant filed a post-trial motion for a new trial. The trial court granted the motion and ordered a new trial on all three counts, which was held in June 1991. Defendant was found guilty on count I, not guilty on count III, and the jury was unable to reach a verdict on count II. Counsel agreed that the court should declare a mistrial as to count II. Defendant was sentenced and this appeal followed.

Count I alleged that defendant committed the offense of aggravated criminal sexual abuse in that he fondled the breasts of his then 14-year-old stepdaughter, A.C. Count II alleged defendant committed the offense of aggravated criminal sexual abuse in that he fondled the vagina of A.C. Count III alleged defendant committed the offense of criminal sexual assault in that he committed an act of sexual penetration involving his mouth and the vagina of A.C.

A.C. testified the incidents alleged in count I and count II occurred some time in early 1988, between her birthday on February 12 and early March when she was hospitalized. She stated these incidents occurred on a weeknight and her mother was not present in their trailer because she was at an Alcoholics Anonymous (AA) meeting. A.C. complained to defendant that she had a rash on the upper part of her chest but not near her breasts and defendant told her he would look at it for her. They went into the bathroom of the trailer. A.C. testified she was wearing a floor-length black nightgown with “spaghetti” straps and defendant was wearing only a towel wrap. A.C. testified she lowered her nightgown only to the top of her chest area, which would have allowed defendant to see the area of the rash. According to A.C., defendant told her “No, let it fall to your waist, you know, let it go.” She then stated she let her nightgown drop to her waist and defendant told her to let it go completely, whereupon it fell to the floor. She had only panties on underneath her nightgown. Defendant then took some ointment from the cabinet and rubbed it on her breasts and nipples. A.C. testified the rash was neither on her breasts nor her nipples. She stated she did not do anything to stop defendant because she was scared.

A.C. testified she then went into the living room and covered up with a blanket which was on the couch. Defendant allegedly followed her into the living room and sat beside her on the couch. A.C. testified defendant put his hand down her nightgown and touched her breasts again. She testified he then pulled up her nightgown, moved her underwear to the side and touched her vagina. A.C. testified she did not stop defendant because she was scared. Eventually, defendant stopped touching her and told her she needed to go to bed. She testified that as she was walking toward her bedroom, defendant told her, “Wait a minute, don’t tell your mother. She wouldn’t understand.” A.C. further testified defendant stated, “Look what you make me do,” unsnapped his towel and exposed his erect penis.

A.C. testified she told a neighbor on her paper route what defendant had done to her. The neighbor then contacted the police and the Department of Children and Family Services (DCFS). A.C. went with her mother to DCFS headquarters and told them what had happened. The following day, she sat in her parents’ bedroom with her mother and defendant and told them both what she believed he had done to her. A.C. testified she also told the police about these three incidents.

On cross-examination, A.C. testified she had had this rash for at least one month before defendant put the ointment on it. Prior to that time, neither defendant nor her mother had put anything on the rash. In late March, A.C.’s mother did take her to the doctor to get treatment for this rash. A.C. testified she had been admitted to Mercy Hospital in March 1988 for psychiatric help. She also testified she had periodically been admitted into other hospitals for psychiatric treatment.

A.C.’s mother testified she was married to defendant for 15 years but they had divorced in January 1990. She testified there were problems between A.C. and defendant in that they always competed for her attention. A.C.’s mother testified A.C. was afraid of defendant because he was so big and that defendant spanked her excessively. A.C.’s mother verified that she and defendant had sat in their bedroom with A.C., and A.C. told them what she had told DCFS. She further testified defendant stated he had put the lotion on A.C.’s chest because of the rash and that he had told A.C. not to tell her mother that he had done so.

Detective Mike Jordan of the Bloomington police department testified a DCFS worker contacted him about this case in July 1988. He testified he approached A.C. while she was on her paper route and asked her to talk about the possibility that she had been sexually abused. A few days later, Detective Jordan took A.C.’s statement at the police station, which involved the incidents alleged in counts I and II.

Defendant testified on his own behalf. He admitted he put lotion on A.C.’s chest but denied all of the other allegations. Defendant agreed that the night he put lotion on A.C. was a weeknight and A.C.’s mother had gone to an AA meeting. He testified A.C. complained about the rash and when she pulled down her shirt a little bit, he could see some small red spots. Defendant testified he told A.C. to go into the bathroom because he had some ointment that would help. He testified he reached into the cabinet and when he turned around, A.C. had taken off her shirt. He testified she took the lotion, placed a small amount on her fingers and began to dab at the spots on her chest. Defendant testified he told A.C. that would not work, so he took some lotion in his hands and rubbed it all over her chest, including her breasts. Defendant denied touching her breasts for sexual gratification.

Defendant denied that at that time he told A.C. not to tell her mother about this incident but admitted he did say that to her a few days later. Defendant admitted inflicting corporal punishment on A.C. but denied that it was excessive or that he treated her differently than her siblings. Defendant testified the first he knew about these allegations was when his wife telephoned him at work and said he needed to come home, whereupon A.C. related the allegations she had told DCFS.

On cross-examination, defendant stated he was wearing blue jeans and no shirt the day he put the lotion on A.C. He testified she had on her school clothes. He admitted he applied the lotion again two days later. He explained he told A.C. not to tell her mother about the lotion incident because her mother was already mad at him and he believed she would not understand why he did this.

Defendant first argues he was not proved guilty beyond a reasonable doubt because the evidence was neither clear and convincing nor substantially corroborated. In People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690, the Illinois Supreme Court specifically rejected the standard suggested by defendant. The court stated:

“In place of this standard, we find that the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237[, 478 N.E.2d 267], should govern an appellant’s claim of evidentiary insufficiency in sex-offense cases. ***
*** The test to be employed on review ‘ “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis omitted.) (Schott, 145 Ill. 2d at 202-03, 582 N.E.2d at 697, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.)

The evidence presented was sufficient to find defendant guilty beyond a reasonable doubt. As both the State’s Attorney and defense counsel argued, this case essentially hinged on the believability of A.C. and defendant. The jury is charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimonies. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276, cert, denied (1990), 498 U.S. 881, 112 L. Ed. 2d 174, 111 S. Ct. 215.) Defendant admitted touching A.C.’s breasts, so the only issue before the jury was whether he did so for the purpose of sexual gratification or arousal of himself or A.C. (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(b).) Defendant testified he did not touch her for this purpose while A.C. testified defendant exposed his erect penis to her. A jury could reasonably believe defendant touched A.C. for the purpose of arousal of himself given her testimony and the fact that he told her not to tell her mother of the incident. Accordingly, we find, after reviewing the evidence in the light most favorable to the State, that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.

Defendant next argues he is exempt from criminal liability for aggravated criminal sexual abuse because he was conducting a reasonable medical examination of A.C. Section 12 — 18(b) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 18(b)) provides that any medical examination or procedure conducted by a parent for purposes and in a manner consistent with reasonable medical standards does not constitute the offense of aggravated criminal sexual abuse. Defendant contends his application of lotion to A.C.’s chest was a medical examination done in a manner consistent with reasonable medical standards. Accordingly, he believes he should not have been convicted of this offense.

In People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112, the court concluded section 12 — 18(b) of the Code was neither an element of the offense of aggravated criminal sexual assault or aggravated criminal sexual abuse nor an affirmative defense to those offenses. The court noted this section was not an element of those offenses because the statutes defining those offenses do not include a requirement that the State prove a defendant’s action was not a reasonable medical examination. Likewise, the court stated this section was not an affirmative defense to either of these sex offenses because it was not specifically set forth as an affirmative defense to a sex offense in section 12 — 17 of the Code. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 17.) Whenever the legislature intends a provision to constitute an affirmative defense to a crime, it has labeled it as such. (People v. Smith (1978), 71 Ill. 2d 95, 106, 374 N.E.2d 472, 476.) Thus, the court concluded that since section 12 — 18(b) was neither an element of the offense nor an affirmative defense to those offenses, it is an exception or exemption from the sexual offenses. Foster, 195 Ill. App. 3d at 953, 552 N.E.2d at 1131.

Defendant contends the trial court erred in failing to instruct the jury that he may have been exempt from criminal liability because of this exception or exemption. We note that defendant failed to raise this issue at trial and, therefore, has waived it on appeal. (People v. Lang (1986), 113 Ill. 2d 407, 469, 498 N.E.2d 1105, 1133.) Generally, failure to object at trial to an error in jury instructions waives the issue for appeal. (People v. Thurman (1984), 104 Ill. 2d 326, 472 N.E.2d 414.) Defendant has waived any argument on this issue because he failed to object to these jury instructions at trial, tender alternate instructions and raise the issue in a post-trial motion. (People v. Smith (1991), 209 Ill. App. 3d 1043, 1055, 568 N.E.2d 482, 489.) The purpose of requiring a defendant not only to object to a particular instruction, but also to tender proper instructions, is to afford the trial court the opportunity to correct any errors in the instructions before they are actually given. (People v. Burns (1986), 144 Ill. App. 3d 345, 355, 494 N.E.2d 872, 880.) In the case of an exception, however, it is defendant’s burden to prove by a preponderance of the evidence that he is entitled to the exception. (People v. Delk (1981), 96 Ill. App. 3d 891, 902, 421 N.E.2d 1341, 1350; Smith, 71 Ill. 2d at 109, 374 N.E.2d at 478.) Defendant neither objected to the instructions given at trial nor tendered alternate instructions to support his position. Moreover, defendant failed to raise the issue of his entitlement to an exemption to the jury. Accordingly, this issue has been waived on appeal.

Finally, defendant argues his conviction cannot be sustained because he lacked the specific intent to gain sexual gratification or arousal as required by sections 12 — 16(b) and 12 — 12(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 16(b), 12 — 12(e)). The State suggests “defendant’s sexual inadequacies or response time for arousal does not negate his intent.” Section 12 — 12(e) of the Code defines sexual conduct as any intentional or knowing touching or fondling by the victim or the accused of the sex organ, anus or breast of the victim or the accused, for the purpose of sexual gratification or arousal of the victim or the accused. Defendant suggests the evidence supports his contention because he told Detective Jordan he only applied the lotion to A.C.’s breast for medicinal purposes and also because he allegedly did not become aroused until sometime after he applied the lotion. He contends that had he intended to gain sexual gratification or arousal by applying the lotion, he would have become aroused much sooner and A.C. would have noticed his erection.

Section 12 — 12(e) requires the State to prove defendant touched the victim for the purpose of sexual gratification or arousal. As the State notes, the statute does not require a defendant to actually achieve sexual gratification or arousal in order to satisfy the definition of sexual conduct. Defendant offered the jury an explanation as to why he touched A.C.’s breasts, which apparently the jury did not believe, as evidenced by the conviction on count I. A.C. testified she had no rash on her breasts and she further testified defendant had an erection, which he exposed to her. The jury had sufficient evidence to conclude defendant touched the breasts of A.C. for the purpose of sexual gratification or arousal.

Accordingly, for the foregoing reasons, defendant’s conviction for aggravated criminal sexual abuse is affirmed.

Affirmed.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF JERRY L. PORTER, Petitioner and Counterrespondent-Appellant, and DORIS J. PORTER, n/k/a Doris J. Wenzel, Respondent and Counterpetitioner-Appellee.
    Fourth District
    No. 4—91—0717
    Opinion filed June 4, 1992.

      Leanna L. Karnopp and S. Linn Baker, both of Vonachen, Lawless, Trager & Slevin, of Peoria, for appellant.
    Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by petitioner Jerry L. Porter from an order of the circuit court of De Witt County, holding certain mortgage payments ordered to be paid by a marriage dissolution judgment to be in the nature of maintenance and support rather than as division of property. Petitioner contends the payments were property settlement in nature and dischargeable by his recent bankruptcy proceedings. On motion of the appellee we have reached a determination that this appeal is not properly before us and must be dismissed on jurisdictional grounds. Although we are under no obligation to discuss the substantive merits of this case, we feel this case is one where we might, with profit, set forth an alternative ground for the decision we have reached, for on substantive grounds alone, the opinion of the trial court must be affirmed. See Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346; Berber v. Hass (1965), 57 Ill. App. 2d 109, 207 N.E.2d 96.

Bankruptcy

Child-support payments and maintenance payments are not dis-chargeable in bankruptcy unless they are assigned. Property settlement debts are dischargeable under the Bankruptcy Code (11 U.S.C. §§101 through 1103 (1988)). See 11 U.S.C. §523(a)(5) (1988).

Background

A judgment of dissolution of marriage was entered by the circuit court of Du Page County on either December 20, 1983, or January 5, 1984, dissolving the marriage of petitioner and respondent Doris J. Porter, n/k/a Doris J. Wenzel. This judgment incorporated and approved a document consisting of 14 single-spaced, SVa- by 14-inch pages and entitled “SEPARATION AGREEMENT.” Attached to the agreement were exhibit A, listing debts to be assumed by the wife, and exhibit B, listing debts to be assumed by the husband. The agreement was divided into 11 articles.

Article VI of the agreement was entitled “UNALLOCATED FAMILY SUPPORT AND CHILD SUPPORT,” and this article contains seven paragraphs, the following of which are relevant to this opinion:

“1. The husband shall pay to the wife, as and for her support and the support of QUINTIN and MICHELLE PORTER (the minor children of the parties), the sum of thirteen hundred dollars ($1,300.00) each and every month, commencing with December 1, 1983 and continuing through October 31, 1988. *** In the event of the death of either party or the remarriage of the wife, the unallocated support as provided herein shall immediately terminate. In no event shall unallocated support continue after October 31, 1988. Further, no other conditions or events other than those which are specifically set forth herein-above, shall cause a termination of unallocated family support.
The unallocated family support of thirteen hundred dollars ($1,300.00) per month shall be reduced to the sum of eleven hundred dollars ($1,100.00) per month upon the latest to occur of the following events:
a. Quintín Porter’s completion of high school, or
b. Quintín Porter attaining age eighteen (18) years.
2. Any portion of unallocated family support deemed to be maintenance by a court of competent jurisdiction is to be non-modifiable in amount and duration.
* * *
5. The wife hereby waives any and all rights she might have to maintenance from the husband other than is specifically provided for hereinabove in paragraph no. 1 of this Article as unallocated family support.”

Under Article X, “PROPERTY SETTLEMENT,” petitioner agreed to convey title to the family residence to respondent on the effective date of the settlement agreement. Respondent was to hold petitioner harmless for the first mortgage debt of approximately $19,500. The agreement, under Article X(l), then stated in part:

“The title to the above described residence is the collateral securing two loans from the Du Page Schools Credit Union, having a total balance in excess of thirty six thousand eight hundred and seventy dollars ($36,870.00). It is the intention of the parties that the husband shall reduce the principal balance of both loans to the sum of fourteen thousand ($14,000.00) dollars.
The reduction in the principal balance of both loans to fourteen thousand dollars ($14,000.00) shall be paid by the husband to the Du Page Schools Credit Union in a timely fashion as required by the promissory notes for each obligation. One promissory note requires 180 monthly payments of $267.00 and the second loan requires 180 monthly payments of $218.00. Both obligations are presently charging interest at the rate of 15% per annum.
The husband shall make minimum payments of $485.00 per month so long as he has an obligation to make unallocated support payments to the wife as has been previously set forth herein. In the event that the principal balance of the two loans owed to the Credit Union have not been reduced by fourteen thousand dollars ($14,000.00) by the time the obligation of unallocated support to the wife has terminated, then the husband shall immediately increase his payments to the Du Page Schools Credit Union by $200.00 per month, so that the total monthly payment shall be $685.00 per month.
In the event that the wife, in her discretion, sells the marital residence, it will be necessary for her to retire both the first mortgage and all outstanding loans owed to the Du Page Schools Credit Union from the gross sale proceeds. Any unpaid portion of the reduction in the principal balance of the two loans owed by the husband to the Du Page Schools Credit Union to fourteen thousand dollars ($14,000.00) shall become a debt and obligation of the husband to the wife, bearing interest at the rate of 15% per annum, and the husband shall make the same monthly payment to the wife as was required to be made on the two loans to the Du Page Schools Credit Union as is set forth hereinabove.
The agreement by the husband to reduce the outstanding indebtedness on the marital residence to fourteen thousand dollars (14,000.00) is in the nature of support for the wife in that she would be unable to meet her reasonable needs and contribute to the needs of the minor children if she was required to make such payments by the terms of this separation agreement.” (Emphasis added.)

Article X(8) referred to debts to be paid, listing attached “Exhibit A” as respondent wife’s obligation and “Exhibit B” as petitioner husband’s obligation. Exhibit A included “Du Page Schools Credit Union[ ] (approximate balance after husband’s reduction of second mortgage to $14,000.00), approximately $13,463.00.” Exhibit B included “Du Page Schools Credit Union, approximately $20,231.13.”

In May 1986 respondent sold the house and retired the encumbrances. Petitioner subsequently fell behind in his payments, which resulted in respondent’s seeking court action to collect what would have been the second-mortgage payments. After various pleadings and procedures connected with the collection process, an “AMENDED AGREED ORDER” was entered by the circuit court of De Witt County which found the parties had “entered into a Stipulation resolving all issues.” That order found petitioner’s obligation to respondent to be $30,000, payable in both lump sum and installment payments. The order provided in part:

“3. The obligation [of petitioner] to pay to the aforesaid [respondent the] sum of $30,000.00 is acknowledged by the parties to be a support obligation and is in satisfaction of and compliance with obligations of [petitioner] as set forth in paragraph 1. of Article X of the Separation Agreement of the parties dated November 30, 1983, as incorporated by reference into the Judgment of Dissolution of Marriage entered on December 20, 1983.”

On July 9, 1990, petitioner’s notice of bankruptcy was filed. Respondent’s motion to determine dischargeability of the amended agreed order signed on June 25, 1990, was filed in the circuit court of De Witt County on March 11, 1991. This resulted from transfer of the dischargeability issue from the bankruptcy court to the Illinois courts. The trial court subsequently held the debt was to be support and not subject to discharge. The decision was basically based on the 1983 separation agreement, but evidence from respondent relative to the condition of the parties existing at the time of the settlement agreement was introduced.

The Law

Section 523(a)(5) of the Bankruptcy Code allows for nondischargeability of marital debts to be paid by one of the parties to a dissolution order, if the liability is in the nature of alimony, maintenance, or support. 11 U.S.C. §523(a)(5) (1988).

“Whether a debt is nondischargeable as being in the nature of alimony, maintenance or support (see 11 U.S.C. sec. 362(b)(2), sec. 523(a)(5) (Supp. III 1979)) is a matter of Federal, not State, law. (In re Harrod (1982), 16 B.R. 711; In re Diers (1980) , 7 B.R. 18, 20.) State law may be used to develop Federal standards or to ascertain the incidents or nature of the debt to determine whether it fits within the exception. (In re Hughes (1981), 16 B.R. 90, 92; In re Tilmon (1981), 9 B.R. 979, 987; In re Pelikant (1980), 5 B.R. 404, 407-08.) Federal and State courts have concurrent jurisdiction to determine whether debts are nondischargeable under section 523(a)(5). In re Romeo (1981) , 16 B.R. 531, 534; In re Williams (1980), 3 B.R. 401, 403.
Exceptions to the rule of dischargeability are to be narrowly construed in line with the ‘fresh start’ policy of the Bankruptcy Code. (In re Daiker (1980), 5 B.R. 348, 351, 352; In re Netherton (1979), 2 B.R. 50, 53.) The label attached to a decree and the language of the decree are not controlling in determining dischargeability; rather the court must look to the substance of the decree to determine the essential nature of the obligation. In re Smith (1980), 3 B.R. 224, 230.
Property settlement obligations to a former spouse are dis-chargeable in bankruptcy, while obligations to provide maintenance and support are nondischargeable. (In re LaFleur (1981), 11 B.R. 26, 28-29.) An obligation to hold an ex-wife harmless for certain debts may fall into either category (In re Massimini (1981), 8 B.R. 428, 430), and will be nondischargeable if it is actually in the nature of alimony, maintenance or support. In re Massimini (1981), 8 B.R. 428, 431; In re Miller (1981), 8 B.R. 174,176; In re Daiker (1980), 5 B.R. 348, 351.
The criteria used to determine which category a given debt falls into include, among others, the nature of the obligation assumed, whether there are children to be provided for, the relative earning power of the spouses, and the adequacy of support absent the debt assumption. (In re Petoske (1982), 16 B.R. 412.) Courts are more likely to find a debt dischargeable where its assumption is over and above what is necessary for support and maintenance of the wife and any children (In re Breaux (1981), 8 B.R. 218, 220), where the spouse to whom the debt is owed was, at the time of the decree, young, healthy, employed and without dependents (In re Williams (1980), 3 B.R. 401, 404), where each spouse assumes considerable responsibility for servicing debts on marital property (In re Thompson (1981), 13 B.R. 830, 832), and where the obligation assumed does not terminate on the death or remarriage of the obligee spouse (In re Taff (1981), 10 B.R. 101, 104).” In re Marriage of Lytle (1982), 105 Ill. App. 3d 1095, 1099-1100, 435 N.E.2d 522, 526.

Collier Family Law and the Bankruptcy Code (MB) paragraph 6.04[2] (1991) (hereinafter Collier Family Law) lists the various factors to be considered in making a determination on the question of dischargeability. First, the intent of the parties or the court in fixing the obligation and the purpose of the obligation in light of the parties’ circumstances at the time of the dissolution is important. (Collier Family Law (MB) 16.04[2] (1991).) The label given is not binding; the obligation must actually be in the nature of maintenance or support. (Collier Family Law (MB) f6.04[3] (1991).) Probably one of the most important factors in assessing the intention of the parties is the financial situation of the parties at the time the obligation is incurred. If the spouse would have difficulty in providing for herself (or herself and the children) absent the obligation, the inclination is to treat the payment of a debt as maintenance or support. Collier Family Law (MB) 16.04[4] (1991).

Second, the overall property division at the time of settlement must be considered at least two ways: (1) the fact that lack of a spouse’s receipt of substantial assets reflects the need for support, and (2) if the payment due the nondebtor spouse is clearly identified as proceeds of a sale of what had been a marital asset. (Collier Family Law (MB) H6.04[5] (1991).) Third, another factor to consider is whether payment terminates on death, remarriage, or the children coming of age. (Collier Family Law (MB) f6.04[6] (1991).) Fourth, when the obligation due is a lump-sum amount or a limited number of periodic payments over a relatively short period of time, it is more likely to be considered property settlement and not support. However, long-term monthly payments are more likely to be considered support. Collier Family Law (MB) f6.04[7] (1991).

Fifth, waivers of maintenance in the settlement agreement are relevant in determining whether an installment payment is support or property settlement. However, this is not necessarily controlling. If an apparent need for support exists, such may outweigh the significance of the specific waiver when interpreting the particular installment payment provided for in the property settlement. (Collier Family Law (MB) 1Í6.04[8] (1991).) Sixth, the ability to obtain modification is a factor to be weighed. Collier Family Law (MB) f6.04[9] (1991).

Seventh, tax treatment of the obligation is a factor to be considered in determining intentions of the parties. The various changes in the Internal Revenue Code of 1986 (26 U.S.C. §1 et seq. (1988)) considered in relation to the date of the agreement becomes relevant in determining how the parties treated the taxability issue. Collier Family Law (MB) 16.04[10] (1991).

A small minority of courts have considered current circumstances of the parties at the time of the dischargeability determination. This is a questionable practice, because the intention should be determined from facts existing at the time the court entered its order or the time the agreement was approved. Collier Family Law (MB) f 6.04(11).

Where a spouse who agrees to make mortgage payments has the greater income of the two parties, and the nonpaying spouse lives in the property with the couple’s children, the payments will usually be found to be in the nature of providing shelter and, thus, treated as support payments. Collier Family Law (MB) f6.05[2] (1991).

Trial Court Decision

Petitioner contends the trial court was not presented with sufficient evidence to justify the decision that the debt was nondischargeable. Regardless of the limited testimony, we disagree. The agreement was before the court, as was the evidence of up to five children living in the mortgaged property with the respondent. Respondent’s assumption of debts and her having little in the way of assets, taken with testimony of her post-dissolution bankruptcy, clearly indicate her economic plight. Evidence also established that she had difficulty obtaining meaningful employment.

The wording of the settlement agreement, while appearing to have inconsistencies, clearly termed the payments as support for respondent and acknowledged that without the payments she would not otherwise be able to support herself and the children. The intent of the parties appears clear, and the facts justify treating the payments as spousal support — thus nondischargeable in bankruptcy.

Dismissal Of Defendant’s Appeal

Interestingly, upon this case being submitted to the court for decision without benefit of a brief by respondent, she discovered her attorney had not appeared for her in the appellate process. This resulted in her obtaining new counsel and filing a motion to dismiss the appeal due to petitioner’s apparent late filing of the notice of appeal.

The trial court record indicates as follows: On May 22, 1991, the trial judge removed the case from the advisement calendar and decided the $30,000 was not dischargeable by bankruptcy. The trial court made a docket entry that ended with the following statement: “Counsel for movant to prepare written order. Clerk to notify counsel of record of this entry.” Petitioner’s motion to reconsider is file marked June 28, 1991. The trial court’s written order shows that it was signed on July 3, 1991, and filed the same day. The docket indicates the motion to reconsider was denied August 12, 1991, but notice ■to counsel of the decision was to be given by the clerk. The record does not indicate when the clerk gave that notice.

Notice of appeal was filed on September 26, 1991. It appears the motion to reconsider was a nullity because it was filed before the written judgment was signed and filed. The motion being a nullity, then, did not extend the time for filing of the notice of appeal. Supreme Court Rule 303 (134 Ill. 2d R. 303) requires the notice to be filed with the clerk of the circuit court within 30 days after entry of the appealed-from final judgment or, if a timely motion directed against the judgment is filed, within 30 days after the entry of the order disposing of the last pending motion. A similar set of circumstances required the dismissal of the appeal in Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290. We find that case controlling and determine the appeal must be dismissed.

Appeal dismissed.

McCULLOUGH and COOK, JJ., concur.