author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM BAUGH, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0235
    Opinion filed September 28, 1989.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is a consolidated appeal by defendant William Baugh from an order of the circuit court of Coles County entered upon defendant’s convictions for violating his bail bond (No. 88 — CF—86) (Ill. Rev. Stat. 1987, ch. 38, par. 32 — 10) and theft by deception of property exceeding $300 in value (No. 87 — CF—185) (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1(b), (e)(3)). Defendant was found guilty of the bail bond violation following a jury trial. Thereafter, defendant pleaded guilty to the theft charge, the charge pending at the time of the bail bond violation.

A combined sentencing hearing was conducted on January 3, 1989, after which defendant was sentenced to a term of imprisonment of five years for the theft conviction, to be served concurrently with a three-year term of imprisonment imposed by the circuit court of Sangamon County in an unrelated case, and to a three-year term of imprisonment for the bail bond violation to be served consecutive to the other two sentences. In addition, the trial court ordered defendant to pay from the defendant’s bond deposit court costs and a $100 fee for the services of the public defender. In the event there was any bond deposit remaining after the payment of court costs and the fee for the public defender, the trial court ordered the remainder paid to the victims of the theft by deception, not to exceed $2,200, which was the amount of money paid by the victims, Marion and Thomas McManaway, to defendant as a result of defendant’s deception. At that time, defendant had deposited with the circuit clerk’s office a total of $2,200 as cash bond in both cases.

After defendant’s motion to withdraw the guilty plea and to reconsider the sentence was denied, defendant appealed. On appeal, the only issue raised is whether the trial court improperly ordered restitution in these cases. Defendant’s contentions are three: (1) the order of the trial court failed to state an exact amount; (2) the order of restitution failed to offset the value of work performed by defendant for the victims; and (3) the bond money actually belongs to defendant’s father. Defendant also suggests the court erred when, in determining whether the deposits should be paid to defendant’s father or the victims, the court referred to the “79-year-old victim” since defendant suggests there is no factual basis for this statement in the record.

Under section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6), when the victim of a criminal offense is age 65 or older, the court must order restitution. In all other cases, the court must determine if restitution is appropriate, and if restitution is appropriate, the court has the discretion to order restitution. We note that nowhere in the record is the age of the victim established. The sentencing judge referred to the victim’s age as 79. This was apparently because the State’s Attorney so stated and suggested this was established in the factual basis of the defendant’s guilty plea. However, the age of the victim was not included in the factual basis for the guilty plea, nor in the presentence report. However, we do not find this to be determinative since restitution would have been proper here regardless of the victim’s age.

The method for determining the amount of restitution is set forth in section 5 — 5—6. Considering the ability of defendant to pay restitution, the court may order defendant to pay restitution in a single payment or in installments (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(f)). Although courts have stated no presumption that defendant is able to pay restitution exists merely because defendant has posted bond (People v. Johnson (1982), 106 Ill. App. 3d 171, 440 N.E.2d 1257), the statute provides the court may require a defendant to pay as restitution the balance of a cash bond remaining after court costs and any fine are paid out of the bond. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(e).) Here, the court knew defendant was about to serve consecutive terms of imprisonment and that his ability to pay restitution would be diminished thereby. Therefore, the court appropriately ordered the payment of restitution in a single payment, applying only the balance of defendant’s $2,200 cash bond, after payment of court costs and $100 for public defender’s fees. See People v. Roby (1988), 169 Ill. App. 3d 187, 523 N.E.2d 631.

Defendant argues that the court’s directive putting a cap of $2,200 on the amount of restitution was not sufficiently determinate to properly state an amount of restitution. We disagree. In People v. White (1986), 146 Ill. App. 3d 998, 497 N.E.2d 888, the sentencing court ordered restitution in the sum of $12,884.25 and reserved the right to determine additional expenses during defendant’s incarceration. This court declared the order invalid since the sentence was not clear and definite. In the case at bar, the restitution order is clear and definite. The only amount defendant will have to pay in restitution is the amount of the cash bond left over after reduction by court costs and the public defender fee. No other payment is required by the order of the trial court.

Similarly, defendant’s argument that the trial court’s order of restitution exceeded the victims’ out-of-pocket expenses is without merit. Clearly, the statute requires the victims be reimbursed only for their actual out-of-pocket expenses (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(b)). The factual basis for the guilty plea establishes that defendant and another individual were driving around Mattoon, Illinois, “looking for work.” They approached the victims’ home and advised Mrs. McManaway she needed roofing repair work done. She agreed to allow defendant to do the work. She agreed to pay $400 or $500. Defendant went to a local lumber yard, purchased $75 worth of tar and shingles, returned to the victims’ home and applied the shingles and tar. After three hours on the job, he demanded and was paid $2,200. Two reputable roofers in the area viewed the work. One estimated the cost of the job to be $143. The other estimated $170.

Defendant contends the trial court ignored the value of the repairs to the victims. However, the defendant did not offer evidence in mitigation to establish the repairs were necessary in the first place, and the trial court could conclude that, even though defendant did some work, he was deceiving these people right from the inception. Defendant admitted to police officers he knew the work was not ) standard work and he had overcharged the victims.

Moreover, assuming for the sake of argument that defendant is entitled to a setoff for work performed, he received it. The victims in this case will receive a great deal less than the $2,200 they paid defendant. The first 10% of the cash bond is applied as bond costs. (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7(f).) Thereafter, court costs and $100 for public defender’s fees are deducted. Based on the evidence presented, the trial court could properly determine these costs and fees equalled or exceeded any value received by the victims by reason of defendant’s work.

Defendant’s final contention is that restitution was not proper in this case because the cash bond was not defendant’s money. Defendant posted the $2,200 cash bond on July 18, 1988. On January 3, 1989, an assignment of bond deposit was executed by defendant in favor of his father, William A. Baugh, and filed with the court. No evidence was presented at the sentencing hearing concerning the source of the $2,200 posted as bond. Defendant’s attorney merely advised the court that defendant executed the bond assignment “so money advanced him by his father might be returned to his father.”

Several decisions have considered the availability of the cash bond to pay fines and court costs where another person loaned the money to defendant or was later assigned defendant’s right to the money. In such cases, the courts have held that regardless of who posted bond, section 110 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7) requires the cash bond to be applied to satisfy a judgment ordering defendant to pay either court costs or a fine. (People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194; People v. Owens (1988), 174 Ill. App. 3d 156, 528 N.E.2d 446.) The statute relating to restitution, however, does not require the cash bond to be applied to pay the ordered restitution. Instead, the statute leaves to the discretion of the trial court the question of whether the cash bond should be used to pay restitution. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(e).) The order of the trial court will not be reversed in the absence of defendant demonstrating an abuse of discretion on the part of the trial court.

In this case, no abuse of the trial court’s discretion has been demonstrated. The supplemental presentence investigation report indicates defendant described himself as a self-employed roofer with an income of $100 per week on which he supports himself, his wife, and three children ages seven, four, and two. They pay no rent because defendant’s parents own the home. They do not presently get food stamps or public aid. He owes $4,000 to his parents and medical bills of $15,000. Since his initial arrest in this case on November 6, 1987, additional charges have been filed against defendant in several counties in Indiana and Illinois.

No evidence was presented at the sentencing hearing as to where defendant obtained the funds for his cash bond, and defendant’s father did not seek to intervene to protect his interest. (See People v. Wurster (1981), 97 Ill. App. 3d 104, 422 N.E.2d 650.) The mere statement of counsel is insufficient to establish that the money was loaned to defendant by defendant’s father. The court could reasonably conclude based on the facts of this case that defendant’s ongoing illegal activities generated a great deal more income than $100 per week and that it was these illegal activities which were the source of the $2,200 cash bond, not defendant’s father. The court could also reasonably conclude that, since the assignment of the bond was executed on the day of the sentencing hearing, the assignment was made for the purpose of frustrating the restitution statute.

In any event, because the assignee acquires only those rights or interests in the property that the assignor possessed (see Wurster, 97 Ill. App. 3d 104, 422 N.E.2d 650), an assignment cannot defeat the order of restitution. Defendant had rights in the funds subject to all property deductions as ordered by the court. This mere expectancy that the monies would be returned is all defendant assigned to his father. Defendant’s father has no more right to the funds than did defendant. Any assignee of the cash bond takes subject to the power of the court to invade the funds for the purpose of paying restitution to the victims of defendant’s criminal activity.

For the foregoing reasons, the order of the circuit court of Coles County is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN HOLM, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0028
    Opinion filed September 28, 1989.

      John H. Long and Duane D. Young, both of Long, Rabin & Young, Ltd., of Springfield, and E Donald Heck, of Quincy, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On November 11, 1988, following a jury trial in the circuit court of Adams County, defendant Loren Holm was found guilty of committing the offense of aggravated criminal sexual abuse, in violation of section 12 — 16 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16). He was subsequently sentenced to five years’ imprisonment. Defendant now appeals. We reverse and remand.

Defendant was charged on February 19, 1988, with one count of committing aggravated criminal sexual abuse. The information alleged that defendant, being the father of. L.H., fondled the breasts and vagina of L.H. By a bill of particulars, it was alleged this offense occurred on February 2, 1988, at the Quincy Hobby Center, a family-owned business. The trial commenced on November 9,1988.

The first witness was the victim, L.H. She was born March 10, 1971, and has been residing in a foster home since February 19, 1988. She lived with her mother, Joann, and defendant until they were separated. A divorce is currently pending, and Joann now lives in Columbia, Missouri. In that family, L.H. has an older sister Michelle, a twin sister Laurie, and a younger brother Michael. She also has two half-sisters. One is Miranda, age 17, and the other is Kirsten, age 11. Their mother is Linda Davis-Holm, who is not married to defendant. At the time of the incident, all the girls lived with Linda and defendant. Defendant owns and has worked at the Quincy Hobby Center for 15 to 16 years. The hobby center sells crafts, ceramics, and remote-control items. Defendant also has a computer business. L.H. began working there when she was 11 years old.

Defendant would frequently go out of town to help score at remote-control model airplane conventions, or go to trade shows. When he went out of town, he usually took a daughter with him. At first, he took Michelle and Miranda, and then he started taking Laurie and L.H. Sometimes he took them individually, and sometimes he took two or three at a time. These weekends were a combination vacation and business.

During the year of 1988, defendant started making sexual advances towards her. This built up gradually over the years. She never saw him make any type of advances towards her sisters. In August 1987, she went on a trip with him to Higginsville, Missouri, to help score a contest. They stayed overnight in a motel room with one double bed. At first, it was not common to share a bed but, as time went on, they did because defendant felt it was necessary to save money. She woke up in the middle of the night, and defendant had his hand between her legs playing with her vagina. She woke him up, and he told her he was asleep and did it by accident.

The next trip she took with him was February 12 to February 14, 1988, in Belleville, Illinois. This was to attend a meeting of the Society for Creative Anachronism, a medieval reenactment group to which he belonged. At this time, she was having problems at home. She had spoken in front of Miranda about her problems with defendant, and Miranda told Linda. Linda was upset and wanted her out of the house. This was the reason she went with defendant. She did not feel she could go to her mother’s house at this time.

When they got to Belleville, they stayed at the Sleepy Hollow Motel. Again, they stayed in one room and shared a double bed. Defendant told her that after they got there, she would learn to be an adult. She found out that night that by this statement, he meant that he should masturbate her, and she should masturbate him. She did not wish to, and they argued. However, she eventually gave in. At this point, she was dressed, and he was not. He undressed her, and the acts were completed. Accordingly, when they got home, she was in a depressed mood.

In Quincy, there were sexual contacts where defendant would commit “feelies” by putting his hand down her shirt or in her pants and feeling around her chest or vagina. Things started building up and led to the Belleville incident. These feelies usually occurred at the hobby center. February 2, 1988, was the last time he touched her sexually, other than on the subsequent Belleville trip.

On that day, she came to work at the center around 3 p.m. after school. At the time, no one else was present. He put his hand down her shirt and played with her breasts. He also put his hand down her pants, between her blue jeans and underwear, and touched her vagina. Michelle and Linda Davis were also working that day. Michelle was out running errands at the time, and Linda was not in.

She acknowledged that she first lived with her mother after the separation and, when she moved in with her father, she made allegations that her mother abused her. She also admitted that in late 1987, defendant and Linda were on her quite a bit about her low grades and not helping around the house and hobby center. She denied this had any involvement with her desire to get out of the house. When she spoke with defendant on February 18, she told him she needed to get out of the house and wanted to go to a foster home. At this point, the State rested.

Miranda Holm, half-sister of L.H., testifying for defendant, stated that in December 1987, both L.H. and Laurie had book reports due. L.H. did not want to do hers and waited until the last possible minute. L.H. also does not like doing her chores around the house. Defendant and Linda were continually after L.H. to do better in her school work and to do her chores at home. In January 1988, L.H. told her that “I am going to lie. I am going to blackmail my dad so I can get out of the house, so, I am going to go to DCFS and the police and tell them that he raped me.” She told Linda about this conversation the next day, which was a Thursday. On that Friday, L.H. went with defendant to Belleville.

She explained that the event on February 12 which L.H. went to was called the Crystal Ball. L.H. asked to go with defendant. Upon their return, L.H. was in a marvelous mood because she had had a wonderful time.

Michelle Holm was 19 years old at the time she testified. She stated that in mid-January 1988, L.H. started talking about moving into a foster home. Also, at this time, everybody was upset with L.H. about her school work and the fact that she was not helping at home as she should. On February 2, 1988, she was working at the hobby center. She started work at 11 a.m. and did not leave the building until 6 p.m. At no time during this period was L.H. alone in the building. Neither was there any time when she was alone with defendant. She specifically remembers that day because a UPS order was delivered and they had a problem with their computer, which defendant had to work on. Linda was also there the whole time except for between 4:15 and 5 p.m. She remembered that when L.H. came home from the Crystal Ball, she was very excited and happy.

On cross-examination, she admitted telling an investigating officer that she did not feel sex between a father and daughter was wrong as long as they were both adult and consenting. She personally does not believe in it. She then admitted that she allowed her father to take a series of pictures of her while she was in a negligee. These pictures were taken after December 1987 at the Sleepy Hollow Motel.

These pictures show Michelle originally dressed in a black nightgown with black panties, bra, and nylons attached to a garter belt. The pictures then show a sequence of her taking these articles off while smiling coquettishly. The final picture shows her lying on the bed on her stomach with everything but her panties off. At no time were her breasts exposed.

She explained these photographs were taken in January 1988. These were taken during a weekend business trip on which she accompanied defendant. Also, on that trip, they were able to get only one double bed and had to share. This had happened other times. However, nothing sexual ever occurred. These photographs were taken to give to her boyfriend in the Navy. She intended to send them to him one at a time as a joke. After they were processed, she kept them in a drawer in her dresser. She never showed these pictures to defendant.

Linda Davis is employed as the director of education for radiology at Blessing Hospital. She testified L.H. came to live with them in November 1985. In December 1987, they had problems with L.H. doing her book report. They also had problems with L.H. doing her chores. Her responsibilities were no more than those of the other girls. She never saw defendant do anything improper towards L.H. She has seen L.H. attempt to manipulate her father by rubbing her breasts against him.

On February 2, she arrived at the hobby center at 1:30 p.m. She works there as a bookkeeper and office manager. She was in the building the entire afternoon except from 4 to 5 p.m. During that afternoon, she observed, when she went in and out of her office, that L.H. was working with Michelle.

She stated the reason L.H. went to the Crystal Ball was because she and defendant felt L.H. and defendant needed to talk about all the problems going on. When they came back, L.H. was happy and bubbly.

She maintained on cross-examination that a person could not be alone with another at the hobby center without letting others know they wished privacy. She admitted the first time she saw the photographs of Michelle was on February 23, 1988, when the police showed them to her. She also admitted telling the police she did not think it was appropriate for a father to take these types of pictures of his daughter. She also did not know defendant and L.H. would share a bed when they went to Belleville.

Defendant testified that in 1985, L.H. came to live with him, alleging that her mother hit her. He acknowledged having the two families, and stated the children have known each other since they were three to four years of age. In the 1980’s when he and Joann were still married, Linda worked for them as a bookkeeper.

The first time he became aware of any allegations of sexual activity was when he was charged with this offense. He denied any sexual contact with L.H. in Higginsville in 1987. Concerning the Belleville trip, he maintained he requested two double beds when he made the reservation. However, when they arrived, all those rooms were being used, so they were stuck with only one bed. He denied any sexual activity occurred there. Upon their arrival home, L.H. was in a very good mood.

He also related the difficulties they had with L.H. concerning her school work and home responsibilities. In January 1988, she expressed a desire to move out on her own. After he and she discussed the finances necessary, she realized she could not. He also remembers February 2 because of the computer problems. At no time was he alone on that day with L.H.

He admitted taking the pictures of Michelle while they were on a trip, but maintained that they were for her boyfriend. He never had anything else to do with those pictures.

On cross-examination, he denied talking with his wife Joann about a sexual incident between himself and Michelle at a trade fair in April

1986. He also admitted that L.H.’s grade point average has increased since she went into foster placement.

On rebuttal, Officer Kelvin Roberts stated that during an interview, Michelle stated that sex between a father and daughter was acceptable if they both consented. When asked if this applied to a juvenile daughter, she became upset and said she could not answer that question.

Joann Holm, L.H.’s mother, testified she is currently involved in a divorce proceeding with defendant, which is being considered under advisement. In April 1986, defendant went to a trade convention with Michelle in Ohio. Michelle was 16 years old at the time. He told Joann that Michelle came to his bed, snuggled with him, placed his hand down to her genital area, and he proceeded to stimulate her to climax. She went to sleep at that point. Joann characterized defendant as telling this in a bragging manner. Defendant told her no harm was done because he did not penetrate her.

George Harris was L.H.’s guidance counselor at Quincy High School. He saw L.H. on Monday, February 15, in his office. She had been crying and was very agitated and shook up. He saw her every day that week. She was upset and did not want to be alone with defendant.

Gale Sheehan is one of L.H.’s foster parents. He described L.H.’s demeanor at home as being good and that she was also very helpful. She performs her school work and chores.

Finally, Laurie Holm testified she, and not Michelle, went to the trade fair in Ohio in April 1986. Michelle testified she did not go.

The jury found defendant guilty as charged. On January 6, 1989, the court sentenced defendant to five years’ imprisonment. Defendant now appeals.

Defendant initially maintains his case should have been dismissed for the State’s failure to comply with the speedy trial provisions of section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5). He observes he requested a jury trial on June 1, 1988, and was not brought to trial until November 9, which is a period of 161 days. Section 103 — 5 provides that a defendant out on bond, which defendant was, must be tried within 160 days of the jury demand. However, we find no violation occurred because defendant’s request for a jury trial was not sufficient to invoke this section’s provisions.

Under section 103 — 5, when a defendant is released on bond, a trial demand must be made in order to trigger the running of the speedy trial term. (People v. Monaco (1986), 150 Ill. App. 3d 278, 282, 501 N.E.2d 852, 855.) Where a defendant is at liberty on bond at all times subsequent to the filing of a complaint, the original request for a jury trial cannot be considered a demand for an immediate trial, but only a demand that when the trial is held, it would be before a jury. (People v. Baskin (1967), 38 Ill. 2d 141, 145, 230 N.E.2d 208, 210; Monaco, 150 Ill. App. 3d at 282, 501 N.E.2d at 855.) The trial demand must be clear, unequivocal, and apparent from the record. People v. Althide (1979), 71 Ill. App. 3d 963, 966, 389 N.E.2d 240, 242.

In the present case, a review of the arraignment hearing establishes that no demand for a speedy trial was made, but, rather, defendant indicated he would like a jury trial. The docket entry for that day reads: “Def. pleads not guilty and cause placed on Sept. 1988 jury docket.” A preprinted order form was also filed that day. This form reads: “Defendant pleads not guilty & demands jury trial.”

It is apparent, then, that defendant has not made a clear, unequivocal demand for an immediate or speedy trial. Rather, pursuant to Baskin, he has simply indicated a desire to be tried by a jury. If defendant wished to invoke the provisions of section 103 — 5, it would have been a simple matter to demand an immediate or speedy trial pursuant to this section. Short of such a demand, a defendant’s desires are ambiguous, and it will be concluded no speedy trial demand has been made.

Defendant next complains of several evidentiary rulings. He initially argues the State’s cross-examination of Michelle, involving her statement to the police concerning the propriety of father-daughter sexual relations, is improper. We disagree. If, in fact, Michelle does hold this opinion, this evidence would be proper impeachment since it would go to any possible bias she might have for testifying for defendant.

Defendant next contends the court erred by allowing, on rebuttal, the testimony of Joann Holm that defendant told her he masturbated Michelle on a trip in 1986. He argues this is impeachment on the collateral matter, and is offered solely to inflame the jury. The State responds that it is proper impeachment, and is also admissible under the modus operandi theory.

It is well established that evidence of a defendant’s other crimes or wrongful conduct is inadmissible to show his propensity to commit a crime because it is too prejudicial. (People v. Romero (1977), 66 Ill. 2d 325, 329-30, 362 N.E.2d 288, 290; People v. Bayer (1987), 160 Ill. App. 3d 218, 220-21, 513 N.E.2d 457, 459.) One exception to the rule is modus operandi evidence. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93; People v. Maness (1989), 184 Ill. App. 3d 149, 152-53, 539 N.E.2d 1368, 1370-71.) Modus operandi means, literally, “method of working.” This exception refers to a pattern of criminal behavior which is so distinct that separate crimes or wrongful conduct are recognized as being the work of the same person. (Maness, 184 Ill. App. 3d at 153, 539 N.E.2d at 1371; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292, 1297.) It is relevant to prove the identity of the perpetrator and his commission of the charged crime. Maness, 184 Ill. App. 3d at 153, 539 N.E.2d at 1371.

To be admissible, there must be some distinctive features between the offenses that are not common to that type of offense. (People v. Tate (1981), 87 Ill. 2d 134, 142-43, 429 N.E.2d 470, 475.) While there must be a strong and persuasive showing of this similarity, it is not necessary that the crimes be identical for the other crime to be admitted into evidence to prove modus operandi. Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1297.

Here, the evidence at trial shows L.H. was 16 years of age at the time of the Belleville incident. She was alone with defendant on a weekend trip, with the result that he masturbated her. The incident with Michelle occurred when she was also 16 years old. She was away with defendant on a trip with a similar result. These are sufficiently similar factual settings to normally allow admission of the evidence under this exception. Admittedly, there are also some differences, but these go to the weight to be given the evidence and not its admissibility.

However, modus operandi evidence is generally offered in a State’s case in chief. Its purpose is to help prove the identity of the perpetrator, or that he committed the charged offense, by allowing the jury to reasonably infer he committed one offense from the evidence of the other, showing the “method of work” of the perpetrator. (See Maness, 184 Ill. App. 3d at 153, 539 N.E.2d at 1371.) In fact, research has been unable to uncover any case where this exception is asserted to justify cross-examination or impeachment. Thus, the State’s argument ■ that the evidence is admissible under this exception seems misplaced.

We do find though the evidence is properly admissible for impeachment purposes. Generally, evidence of other crimes may be admitted if it is relevant to establish any material question other than the propensity of the defendant to commit a crime. (People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860.) Here, the questioned evidence goes toward establishing a possible sexual liaison between Michelle and defendant. This could have a direct bearing on the determination of Michelle’s credibility since it reveals a possible bias or interest on her part. We are aware evidence of this type in this case could be very prejudicial to defendant. However, when such evidence is offered, it is necessary for the trial judge to weigh the relevancy of the evidence to establish the purpose for which it is offered against the prejudicial effect the introduction of such evidence may have on the defendant. (Stewart, 105 Ill. 2d at 62, 473 N.E.2d at 860.) In this case, the court did, and we find no error in its determination.

Defendant next argues the court erred by allowing admission of the photographs he took of Michelle. Prior to trial, the court ruled the pictures were inadmissible in the State’s case in chief, but reserved ruling on any other use. When defendant objected to their introduction in cross-examination, the court ruled they were proper for impeachment. On appeal, the State insists they were proper for impeachment and for modus operandi purposes. We disagree.

Initially, the State argues the pictures were proper impeachment. Since Michelle was not asked on direct examination about the pictures, it appears the purpose of the pictures was to show any bias, interest, or motive for Michelle to testify falsely, by establishing that Michelle and defendant were actively involved in a sexual relationship. While that theory may be valid, this evidence does not support it.

As explained, these pictures are a sequence of 18 pictures in which Michelle is slowly undressing. They culminate in a picture where she is lying on her stomach on a bed with only her panties on. At no time were her breasts exposed.

We acknowledge that it is unusual that a father would take a sequence of pictures such as this of his daughter. It is also unusual that this would occur on a weekend trip where only the two are present, rather than at home. However, it should be remembered that this is a series of pictures of his adult daughter. This does not establish that there is a ongoing sexual relationship, such as would affect Michelle’s testimony. When impeaching by showing bias, interest, or motive, the evidence must not be remote or uncertain. (People v. Triplett (1985), 108 Ill. 2d 463, 475-76, 485 N.E.2d 9, 15.) Here, it is too uncertain.

The State further contends that, even if they are not proper for impeachment, they are properly admitted under a modus operandi theory. We observe that, even if they are distasteful and inappropriate, it is not a crime to take these types of pictures of one’s adult daughter, and, thus, we question the applicability of the modus operandi analysis. Further, as pointed out earlier, the modus operandi exception does not appear applicable to cross-examination and impeachment. However, even if we apply the analysis, it is clear the pictures are not admissible.

As discussed earlier, the modus operandi exception refers to a pattern of criminal behavior so distinct that separate crimes or wrongful conduct are recognized as the work of the same person. (Maness, 184 Ill. App. 3d at 153, 539 N.E.2d at 1371.) To admit this evidence, there must be some distinctive features between the charged crime and the other crime that are not common to that type of offense. Maness, 184 Ill. App. 3d at 153, 539 N.E.2d at 1371.

Here, the only similarity between the incident with Michelle and the incidents with L.H. are that they occurred at the same motel on a weekend trip, and they involved a natural daughter. However, one incident involved a mutual masturbation with a minor daughter against her wishes, while the other involved the taking of photographs of an adult daughter at her request. The requisite distinctive features in common are missing.

The real difficulty with the pictures is that their prejudicial impact outweighs any probative value. There may be some limited probative value concerning defendant’s relationship with his daughters.. However, this is far outweighed by their prejudicial effect since, even in these “anything goes” days, it is still viewed improper for a father to take such pictures of his daughter. Even Linda Davis admitted this. In a closely balanced case such as this, involving this type of charge, such inflammatory pictures could result in defendant being convicted due to his bad moral character, rather than on the merits of the charged offense. Accordingly, it is necessary that we reverse defendant’s conviction and remand the case for further proceedings.

To assist the trial court in the event of a retrial, we will address defendant’s final asserted error. Defendant argues the court erred by refusing to allow him to introduce into evidence the printout of a computer disk he discovered. The evidence at the motion in limine hearing established that everyone in the household, including L.H., used the family computer. Apparently, some time after L.H. was removed from the house due to the current complaint, a computer disk was found with her name on it. A printout of that disk showed that in the middle of some school material was language which showed the writer was fed up with her parents pushing her too hard in school, and that she intended to make a false rape report on defendant to get out of the house. L.H. denied putting that language in.

Defendant wished to use this to cross-examine and impeach L.H. The court, noting there was no security procedure to keep any person in the house, including defendant, from placing that language on the disk, refused defendant’s request. We find no error with this determination.

Defendant maintains the court erred by being concerned with questions of reliability and security. He argues he does not wish to introduce the document as substantive evidence, but simply wishes to. use it to cross-examine L.H. He believes that once she is cross-examined about the printout, it is up to the jury to determine whether she made the document, and what impact this has on her testimony.

The purpose for cross-examination is to assist in the truth finding process by impeaching a witness’ testimony. Here, the evidence established the proffered evidence was uncovered some time after L.H. moved out. It had been generated on a disk labeled with her name. There is no evidence this disk was kept in a secured place or that access to it was limited in any fashion. The evidence also established that any family member, including defendant, had the ability to place the language on the disk since there was no security code to prohibit it. If some person decided to manufacture the evidence to discredit L.H., it would have been an easy matter to find the disk with her name on it, and to place the language there. In fact, there was no explanation given concerning the reason for defendant printing out the disk which lead to the discovery of the questioned language. The possibility of the evidence being manufactured by someone else is too great to allow its use.

We are not saying that a foundational requirement for computer evidence is that no other party could have had access to it. We can envision other circumstances where such evidence may be admissible and helpful. However, to hold as defendant desires in this case, would open the door to all sorts of manufactured evidence being used to impeach witnesses. This would hinder, and not enhance, the truth-seeking process.

Reversed and remanded.

KNECHT and GREEN, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    ANTHONY LOGAN et al., Plaintiffs-Appellants, v. OLD ENTERPRISE FARMS, LTD., et al., Defendants-Appellees.—ANTHONY LOGAN et al., Plaintiffs-Appellees, v. OLD ENTERPRISE FARMS, LTD., et al., Defendants-Appellants.
    Fifth District
    Nos. 5-87-0532, 5-87-0759 cons.
    Opinion filed September 1, 1989.
    Rehearing denied October 19, 1989.

      John L. McMullin and John P. Cunningham, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for appellant O’Fallon United Church of Christ.
    Michael J. Reagan and Alvin C. Paulson, both of Kassly, Bone, Becker, Dix, Tillery & Reagan, P.C., of Belleville, for Anthony Logan.
    Stephen W. Thomson and Curtis L. Blood, both of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for Old Enterprise Farms, Ltd.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant O’Fallon United Church of Christ (hereinafter Church) appeals from an order of the circuit court of St. Clair County denying its motion for summary judgment. Plaintiff Anthony Logan, a minor, along with his mother, Jo Ann Berry, appeal from an order of the circuit court of St. Clair County granting summary judgment in favor of codefendant Old Enterprise Farms, Ltd. (hereinafter Farms). Additionally, the trial court found that the Recreational Use of Land and Water Areas Act (the Act) (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) was the statute applicable to the land in question. In this cause, the parties raise a number of issues. We find the determining issues to be (1) whether the trial court erred in denying Church’s motion for summary judgment and in granting Farms’ motion for summary judgment, and (2) whether the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) is the applicable statute governing defendants’ liability to plaintiffs. We affirm the order of the circuit court of St. Clair County denying Church’s motion for summary judgment, reverse and remand the order of the circuit court of St. Clair County granting Farms’ motion for summary judgment, and reverse and remand the order of the circuit court of St. Clair County making the Act applicable to both defendants.

Plaintiff Anthony Logan, a 15-year-old boy, was left a quadriplegic after he fell from a tree to which a rope swing was attached. The injury occurred on property owned by Farms. At the time, plaintiff was attending a picnic organized by members of the Church’s consistory.

Farms is a corporation owned by three families, the Ellerbrakes, the Schrivers, and the Aregoods. It is located off what is commonly known as the Troy-O’Fallon Road in St. Clair County. Farms was formed in 1972, after the three families acquired approximately 122 acres of land. The land is divided into six separate plats, each of which is taxed separately. The injury occurred on a separate 1.36-acre tract which is known as the “old school house lot.” As part of the sales agreement, the previous owner had the exclusive right for 10 years to use the school house which sits on the 1.36-acre tract. In 1982, Farms gained exclusive control over the school house which has been used as a clubhouse. According to two of the owners, Richard Ellerbrake and Jack Aregood, this 1.36-acre tract, complete with lake, is used primarily, if not exclusively, for recreational purposes.

Jack Aregood, a shareholder in Farms, was an associate pastor at the Church. Aregood used the clubhouse on different occasions in connection with church activities, including parties for junior high and senior high youth fellowships. The lake was used at least two to three times per week during the summer by members of Farms.

On August 7, 1983, plaintiff, Anthony Logan, accompanied his parents to a church picnic for consistory members. Reverend Are-good had offered use of the lake and the clubhouse for the church picnic. All activities in conjunction with this picnic occurred on the 1.36-acre tract known as the school house lot. Those in attendance at the picnic were welcome to use the lake to swim. There was also a rope swing attached to a tree which was used to swing into the lake. The tree was within the 1.36-acre lot. Plaintiff estimated he had been to this property on at least 24 previous occasions during the summer of 1983 with Christopher Ellerbrake, a friend, whose parents were also shareholders in Farms. Plaintiff had used the rope swing several times prior to the day of his injury. On these occasions, the rope swing would periodically become entangled in the upper branches of the tree upon release by the person jumping from the swing. Plaintiff estimated that the rope swing would get caught in the branches about 1 out of every 5 to 10 swings or two to three times per visit. Plaintiff had seen various boys climb the tree in the past to untangle the rope swing. Because the rope would get caught in the tree, a piece of yellow plastic had been placed around the rope and limbs had been cut in an attempt to rectify this problem.

Christopher Ellerbrake, 17 years old at the time of plaintiff’s injury, was aware of the propensity for the rope to become entangled. In fact, he had used a hand saw to cut some branches from the upper portion of the tree to stop the rope from becoming entangled. At one time, he had tied a piece of rope around a metal bolt in order to throw that at the rope swing in the hopes of knocking the swing from the branches. This method was discarded when, during an attempt to free the rope swing, the bolt fell out of the rope and hit him in the face, causing him to receive a number of stitches. Christopher’s father, Richard, knew of his son’s injury and knew that the rope could get entangled. Plaintiff himself had been injured on a previous occasion when using the rope swing. Plaintiff stated that he had hit his knee on a metal post located near the rope swing while swinging on the rope. Ken Shepherd, another friend of Christopher Ellerbrake’s, had also injured his leg on the rope swing in the past.

On the day of the accident, a wooden ladder was placed at the base of the tree to which the rope swing was attached. The ladder was owned by Farms. Plaintiff stated that the ladder had been up against the tree each time he had visited the clubhouse. The rope swing was hanging freely when plaintiff arrived on the premises. Plaintiff used the swing 5 to 10 times before it got caught in the tree. No one else used it during the time plaintiff used it. His parents watched him use the swing and did not caution him about using it. When the rope got caught, plaintiff waited a few minutes before attempting to retrieve it. Plaintiff then climbed the ladder, as he had seen others do, got up in the tree, and loosened the rope. The rope then became entangled in some lower branches. Plaintiff’s brother, Victor Logan, then attempted to completely free the rope. Plaintiff began his descent from the tree. Before he reached the ladder, he fell and woke up on the ground. Plaintiff does not know how he fell.

Plaintiff’s parents were less than 22 feet away from the tree. Plaintiff’s mother saw him swing approximately three to five times prior to the accident. She saw the rope get caught in the tree, but did not warn or caution her son about climbing the tree. Plaintiff’s stepfather saw plaintiff swing on the rope several times before he was injured. He did not consider the swing to be dangerous. Before plaintiff climbed the ladder, plaintiff’s stepfather cautioned him to be careful. According to plaintiff’s stepfather, he made some cautionary-remarks because the ladder looked steep to him. Reverend Aregood watched plaintiff as he climbed the ladder. He did not attempt to stop plaintiff, but stated that he might have told him to be careful. Reverend Aregood stated that he had seen the swing get caught in the branches on previous occasions. In the past, he had encouraged those using the swing to let the wind blow down the rope. In addition, Reverend Aregood stated that he had taken down a rope swing earlier in the summer which was located in the same tree when in his estimation it became unsafe due to fraying. A few weeks later, he found that a new rope swing had been put up in the tree. When he saw the new rope, he pulled on it to make sure that it was fastened securely to the tree.

Plaintiff stated that this was not the same rope swing that had always been used. However, Christopher Ellerbrake, who was the most frequent user of the rope swing, and who had put the rope swing up in the tree, said that this was the only rope that had ever been in the tree.

Several picnickers witnessed the fall or at least plaintiff lying on the ground after the fall. Neither plaintiff nor his family knew why he fell. One independent witness, Mark Everett, a consistory member, testified that he clearly saw a branch approximately 4 to 41/2 inches thick snap at the trunk when plaintiff stepped on it, thereby causing plaintiff to fall. Other witnesses testified that they heard a loud crash which might have been the breaking of the branch, while still others insisted that they did not see or hear a branch break prior to plaintiff’s fall. All witnesses testified that the tree was in good shape and did not appear to have dead branches. The only thing that is clear is that it will most likely never be known why plaintiff fell from the tree.

Plaintiff’s first amended complaint alleged negligence on the part of Farms in failing to maintain the premises and the rope swing in a proper and safe condition and failing to warn plaintiff of the dangerous condition. As against Church, plaintiffs alleged that it negligently failed to provide adequate supervision of the picnic area, plaintiff, and the rope swing area where the injury occurred, and failed to warn plaintiff of the dangerous conditions existing on the premises. Church filed a motion for summary judgment. Farms filed an alternative motion for summary judgment or a motion to dismiss. Additionally, Farms argued that the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37) was applicable and limited its liability. Plaintiffs filed memoranda in opposition to the motions for summary judgment filed by both defendants. Responses to plaintiff’s memoranda were filed by both defendants.

On May 6, 1987, the trial court heard arguments on motions for summary judgment. The court entered an order finding that the Act applied, and on June 22, 1987, granted the motion for summary judgment filed by Farms. On September 29, 1987, the trial court entered an order denying Church’s motion for summary judgment. Both cases have been consolidated for purposes of appeal.

The first issue on appeal is whether summary judgment was a proper disposition of the case for either of the defendants. We must first point out that we can find nothing to distinguish these two defendants. We believe that both defendants are similarly situated so as to make the trial court’s alternative rulings on defendants’ motions for summary judgment inconsistent. As similarly situated defendants, the trial court should have granted summary judgment for both defendants or denied summary judgment for both defendants.

Defendants contend that this case involves a simple, patent danger of falling and, therefore, neither defendant owes a duty to plaintiff. Defendants argue that there is no duty on the part of an owner or occupier of land to warn children of the obvious risk of falling out of a tree. Plaintiffs respond that both defendants have wrongfully categorized this cause of action as one of simply falling, arguing that there are factual issues as to the safety of the rope swing, the safety of the tree, and the safety of the combination of these structures to warrant the denial of defendants’ motion for summary judgment. We agree.

The standards governing whether a summary judgment should be granted are set forth in section 2 — 1005(c) of the Code of Civil Procedure, which states in pertinent part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1105(c).)

Illinois courts have repeatedly emphasized that the purpose of summary judgment is not to try an issue of fact, but to determine whether a triable question of fact exists. (Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 23, 462 N.E.2d 877, 881-82.) Summary judgment is a drastic remedy. It must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 998, 473 N.E.2d 531, 534.) In passing on a summary judgment motion, the trial court is therefore required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) Only if these materials establish that the movant’s entitlement to summary judgment is clear and free from doubt may such a motion be granted. Freemont Indemnity Co. v. Special Earth Equipment Corp. (1985), 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930.

In the instant case, a rope swing was maintained on the premises. Two owners of Farms, John Aregood and Richard Ellerbrake, were aware of the rope’s existence. The depositions clearly establish that the rope would frequently get tangled in the tree, approximately and conservatively every 1 out of 10 swings, making it necessary for someone either to climb up the tree to untangle it or wait for the wind to blow it free. Reverend Aregood admitted that he had seen the rope get caught in the upper branches of the tree and had encouraged those using the swing to let the wind blow it down. Furthermore, there was deposition testimony that others had been hurt on the swing, not only while swinging, but also while attempting to get the rope untangled. There are also questions concerning the condition of both the rope swing and the tree to which the rope swing was attached. One member of the consistory board, Mark Everett, observed the branch on which plaintiff was standing break at the trunk causing plaintiff to fall. This witness states that plaintiff was very cautious while in the tree. Reverend Aregood stated that he had previously removed a rope swing which he considered unsafe from the same tree. He explained, “It had knots in it. Just didn’t appear good and I didn’t think it was a good place for it to be so I just took it down.” An affidavit was also filed on behalf of plaintiff by M. Alexander Gabrielsen in opposition to defendants’ motion for summary judgment. Dr. Gabrielsen holds a Ph.d. from New York University, where he also taught for 30 years and served as director of professional recreation curricula. He is also chairman of the Educational Commission of the Council for National Cooperation in Aquatics as well as aquatic safety consultant to that organization. He has consulted on approximately five rope swing cases. It is his opinion that there are inherent and foreseeable dangers regarding the rope swing at Farms.

These facts do not indicate, as defendants urge, that there was merely a danger of falling from a tree. An instrumentality, although in and of itself not dangerous, may become dangerous when joined with other nondangerous instrumentalities or surroundings. (Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 764, 404 N.E.2d 918, 921; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.) In the instant case, it may well be that the combination of the tree, which alone would not be a dangerous instrumentality, the rope swing, the ladder, and the lake caused plaintiff’s injuries. When viewing the foregoing facts in a light most favorable to plaintiff, we cannot say, at this stage of the proceedings, as a matter of law, that no genuine issue of material fact exists.

Defendants also rely on four cases where courts have held that the landowner owes no duty to a child who falls out of a tree and who sustains injuries. (Batzek v. Betz (1988), 165 Ill. App. 3d 399, 519 N.E.2d 87; Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061; Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 421 N.E.2d 566; Merkousko v. Janik (1973), 14 Ill. App. 3d 343, 302 N.E.2d 390.) In Merkousko, the amended complaint alleged that the plaintiff, a seven-year-old boy, sustained injuries when he fell from a tree, located on the defendant’s property, onto a cement public sidewalk. It was alleged that the defendant negligently piled dirt from an excavation around the trunk of the tree, thus enabling the plaintiff to climb an otherwise unscalable tree. Defendant allegedly knew that the children frequented the vicinity in which his property was located in the course of walking to and from a nearby grade school. It was alleged defendant breached a duty to plaintiff by not piling the dirt away from the tree or by not warning the plaintiff about the perils of climbing the tree. On review, the trial court’s ruling was affirmed. The appellate court held the danger, if any, was the simple danger of falling, noting that there ■ was no allegation in the amended complaint that the combination of the tree, the pile of dirt, and the sidewalk either constituted a defective structure or concealed dangerous condition. (14 Ill. App. 3d 343, 302 N.E.2d 390.) In the instant case, plaintiff’s amended complaint does allege a defective structure as well as a concealed dangerous condition in the rope swing. The case is further distinguishable in that in Merkousko the plaintiff was a child trespasser while in the instant case plaintiff was an invitee.

In Bazos, a 10-year-old girl fell from a tree on the defendant’s property and fractured her arm. The amended complaint alleged that the defendants had permitted a picnic table and bench to be placed in close proximity to a low-extending limb of a tree, that the defendants permitted numbers of minor children to play thereon and jump from the table to the limb to swing and that defendants knew or should have known that this dangerous activity had gone on for some period of time. The trial court granted defendant’s motion to strike. The appellate court affirmed, noting that the plaintiff must have appreciated the risk of her activities. Furthermore, the court held that liability would not attach despite the allegations that defendants permitted the activity. Bazos, too, is distinguishable from the case at bar. The Bazos court found that the picnic table and bench did not become inherently dangerous merely because the children abused them by using them for purposes other than those for which they were intended, specifically, to climb a tree. (Bazos, 96 Ill. App. 3d 526, 421 N.E.2d 566.) However, in the instant case, the rope swing was attached to the tree as an invitation to use it. A ladder was also at the base of the tree. Reverend Aregood had taken one swing down when he perceived it to be unsafe. Here, the rope swing was being used for its intended purpose, to swing for recreational purposes. There is a factual question as to whether it was inherently dangerous due to its propensity to become entangled in the tree branches.

In Batzek, a 14-year-old boy fell from a tree located on defendant’s property, rendering himself a quadriplegic. The plaintiff traveled to defendant’s ranch to go camping. During the night, the plaintiff was awakened by a thump on the top of the camper. The next morning he discovered a dead limb had fallen on the camper and he noticed that the limb fell from a tree which had several dead limbs hanging from it. The plaintiff informed a campground employee about the trees and branches, who responded that he would take care of it. Later, when nothing had been done, the plaintiff decided to climb the tree and remove the branches himself. As he was climbing down the tree, one of the branches snapped, and he fell to the ground, landing flat on his back. The Batzek court held, as a matter of law, the plaintiff failed to establish a duty on the part of the defendant. The Batzek court analogized the case to others where a landowner had no duty to remove or take other precautions against dangers inherent in natural accumulations of ice and snow. The court based its ruling, however, on its finding that the plaintiff would be expected to appreciate the obvious risk involved in climbing a tree. Since the risk was obvious, the court held that there was no reasonably foreseeable risk of harm and, thus, no duty on the part of the defendant to protect against the defendant’s actions in climbing a tree. (Batzek, 165 Ill. App. 3d 399, 519 N.E.2d 87.) The present case is also in no way analogous to those cases dealing with dangers inherent in natural accumulations of ice and snow. There is nothing natural about a rope swing in a tree with several branches cut by a saw in an attempt to stop the rope from becoming entangled. Nor is it natural to place a ladder at the base of the tree as an open invitation to climb the tree in order to free the rope.

Likewise, we distinguish Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061. In Newby, the plaintiff was a 17-year-old female who fell from a tree on school property. The amended complaint alleged that the defendant was guilty of wilful and wanton misconduct by allowing a field house to be constructed on its premises immediately adjacent to a tree, which high school students had used on many previous occasions to gain access to the field house roof. In an attempt to limit access to the field house roof, the defendant had trimmed the tree and altered it so as to make climbing more difficult. The plaintiff argued the altered and trimmed tree in close proximity to the field house on a public school playfield constituted an extraordinary risk of harm, and the defendant knew or should have known that such circumstances were likely to cause injury to high school children. In affirming the trial court’s granting of the defendant’s motion to dismiss, the appellate court noted that the plaintiff failed to sustain its burden of showing allegations that a tree in close proximity to a fieldhouse roof created a dangerous condition of which the defendant should have been aware. Further, even if the tree was known to the school board to be used by children to climb secretly at night to paint graffiti on the fieldhouse roof, the plaintiff could not be said to fall within the class of persons for whom the school district’s grounds were intended to be used. The Newby court also noted that the dismissal of the complaint was entered in accordance with public policy that tort liability of public entities be limited. (136 Ill. App. 3d 92, 482 N.E.2d 1061.) In the instant case, plaintiff was an invitee on the land and could reasonably have been expected to use the rope swing. The church group was invited to have access to the lake, including the rope swing. Additionally, we are not dealing with a public entity, but a privately owned corporation and a church.

Finally, Church argues that the responsibility for a child’s safety lies primarily with its parents and, therefore, no liability can be imposed upon defendants. While it is true that a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 219 N.E.2d 483), it does not follow that merely because a parent is present when a child is injured, the owner or occupier of land is free from liability.

Defendants cite Keller v. Mols (1984), 129 Ill. App. 3d 208, 472 N.E.2d 161, in which the parents of a 14-year-old boy who was injured when struck in the eye by a plastic hockey puck during a game of floor hockey at a neighbor's home brought a negligence action against the neighbors. The plaintiffs mother could observe the neighbor’s patio from her kitchen and frequently saw the boys playing on the patio. Neither the plaintiff’s mother nor father told the plaintiff not to play floor hockey or warned him that the game should be played only with protective equipment. The Keller court affirmed the trial court’s dismissal of the complaint, noting that the responsibility for a child’s safety lies primarily with its parents. (129 Ill. App. 3d 208, 472 N.E.2d 161.) Defendants analogize the Keller case to the case at bar. Plaintiffs’ mother and stepfather observed plaintiff climb the tree and did not consider it to be a dangerous activity. They did not prevent their child from climbing the tree nor did they warn him of any dangers. We find the two cases distinguishable. In Keller, it was the activity of playing hockey that was dangerous, while in the instant case, according to the pleadings, it was not the activity of climbing the tree, but a combination of the rope swing, the tree, the ladder, and the lake which formed an inherently dangerous structure. We find that there is a factual dispute and reasonable minds could differ as to whether the combination of the rope swing, tree, ladder and lake created an unreasonably dangerous condition. We move now from a dispute over the facts of the instant case to the law which was applied by the trial court.

The second and final issue is whether defendants are entitled to seek protection under the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 37). Defendants, while denying most of the allegations of the complaint, also raise as an affirmative defense the immunity created by the Act. Both defendants argue that the Act is the applicable statute under the facts of this case. Church contends that the trial court applied the correct Act, but should have entered summary judgment for both defendants, as Church is also protected by the Act. Plaintiffs respond that the Act is inapplicable because the 1.36-acre tract on which the accident occurred was used exclusively for recreational purposes and is taxed separately, thereby, according to plaintiffs, making this subdivided land which is excluded under the Act. Plaintiffs also contend that the correct statute to apply in the instant case is the Recreational Area Licensing Act (Ill. Rev. Stat. 1983, ch. 111½, pars. 761 through 785). Again, we find no reason to allow Farms the protection of the Act while to deny this protection to the Church. Either both defendants should be protected by this Act or neither should be protected. We hold that neither should be allowed the protection of the Act.

The relevant portions of the Act (Ill. Rev. Stat. 1983, ch. 70, pars. 31 through 34, 36) state:

“31. Purpose
§1. The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recre- - ational purposes by limiting their liability toward persons entering thereon for such purposes.” (Ill. Rev. Stat. 1983, ch. 70, par. 31.)
“32. Definitions
§2. As used in this Act, unless the context otherwise requires:
(a) ‘Land’ means land located outside the corporate limits of a city, village or incorporated town and not subdivided into blocks and lots and includes roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(b) ‘Owner’ includes the possessor of any interest in the land, a tenant, lessee, occupant or person in control of the premises.
(c) ‘Recreational purpose’ includes, and is limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, snowmobiling, motorcycling, camping, picnicking, hiking, cave exploring, nature study, water skiing, water sports, bicycling, horseback riding, and viewing or enjoying historical, archaeological, scenic or scientific sites.
(d) ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.” (Ill. Rev. Stat. 1983, ch. 70, pars. 32(a), (b), (c), (d).)
“33. Duty of care or warning of dangerous condition
§3. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” (Ill. Rev. Stat. 1983, ch. 70, par. 33.)
“34. Effect of invitation or permission
§4. Except as specifically recognized by or provided in Section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such person or any other person who enters upon the land.” (Ill. Rev. Stat. 1983, ch. 70, pars. 34(a), (b), (c).)
“36. Wilful or malicious acts — Injury suffered by persons paying admission
§6. Nothing in this Act limits in any way any liability which otherwise exists:
(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease is not a charge within the meaning of this section.” Ill. Rev. Stat. 1983, ch. 70, pars. 36(a), (b).

Also in effect in Illinois at the time of the occurrence in question was the Recreational Area Licensing Act (Ill. Rev. Stat. 1983, ch. 111½, pars. 761 through 785). This Act contemplates comprehensive safety and health regulations in respect to persons who operate recreational areas which are defined as follows:

“(a) ‘Recreational Area’ is any area of land where 1 or more tents, cabins, recreational vehicles or other permanent or non-permanent type shelters are erected and maintained for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, or camping; or where space for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year for recreational activities, camping or temporary parking of recreational vehicles is furnished either free of charge or for revenue purposes, for the placing of such tents, cabins, recreational vehicles or other permanent or non-permanent type shelters; or where space for recreational activities or camping is permitted for 10 or more persons for 7 or more consecutive days or 10 or more days during a calendar year either free of charge or for revenue purposes without shelters of any kind, and it shall include any structure, tent, vehicle, enclosures, recreational vehicle facility or equipment related or used or intended for use as a part of such recreational area.
(b) ‘Recreational Activities’ include, but are not limited to hunting, fishing, swimming, boating, camping, racing, picnicking, hiking, pleasure driving, nature study, water skiing, festivals, public gatherings and visiting historical, archaeological, scenic or scientific sites, or for any purpose, including but not limited to educational, vocational and religious activities and assemblies.” Ill. Rev. Stat. 1983, ch. 111½, pars. 762(a), (b).

In Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, where the plaintiff brought an action under the Federal Tort Claims Act (28 U.S.C. §2674 (1982)) to recover against the United States for injuries he sustained while diving into shallow water of a lake at the Crab Orchard National Wild Life Refuge in Illinois, the United States District Court explained that the entire Illinois legislative scheme should be read in pari materia.

“When it is, it becomes clear that the Recreational Use of Land and Water Areas Act is intended for those who permit open lands to be used recreationally on a casual basis. But those who hold their property out to the public for recreational purposes, and maintain their property for recreational use by the number of persons that are prerequisite to the application of the Recreational Area Licensing Act, they are subject to the provisions of the latter and not entitled to the asserted protection of the former.” (442 F. Supp. at 561.)

This decision was affirmed by the United States Court of Appeals in Miller v. United States (7th Cir. 1979), 597 F.2d 614. However, in the instant case, we do not believe that the Act has any relevancy. We believe this to be true for two reasons; first, because the land was used almost exclusively for recreational purposes, and second, because the land was not opened up to the general public.

Both Richard Ellerbrake and Reverend Aregood agreed that the 1.36-acre “school house lot” is used primarily, if not exclusively, for recreational activities. The previous owner of the “school house lot” kept a 10-year lease on the school building after sale of the land so that he would have a place in the country to bring his friends for recreational purposes. Since 1982, Farms has continued the previous owner’s tradition and kept this area for recreational use. An examination of the purpose clause of the Act, the substantive provisions of the Act, and those cases interpreting the Act, Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, affirmed (7th Cir. 1979), 597 F.2d 614, and Stephens v. United States (C.D. Ill. 1979), 472 F. Supp. 998, reinforces our conclusion that the General Assembly never intended the statute to apply to those whose land is used exclusively for recreational purposes. These owners, including a close corporation, as we have in the instant case, need no incentive of limited liability in order to open up their lands.

Defendants argue that in Johnson v. Stryker Corp. (1979), 70 Ill. App. 3d 717, 388 N.E.2d 932, the appellate court refused to follow the restrictive holding of Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, affirmed (7th Cir. 1979), 597 F.2d 614, and instead held that defendants would be allowed the protection of the Act even if the land was used primarily for recreational purposes. While we decline to follow the first district’s ruling in Stryker, we believe that Church has misinterpreted the Stryker decision. We find Stryker to mean that the Act will only be applicable to a landowner who permits his land to be used recreationally on a casual basis, but will allow a landowner protection even though he did not open up his lands to all members of the public. In Stryker, the deposition testimony was such that the pond in question was used by at least some school children. These children were supposed to ask for permission and usually did so. There were also signs, one which read, “Swim at your own risk — we are not responsible,” the other, “private property — no swimming on holidays — do not litter — pick up your own trash.” (Stryker, 70 Ill. App. 3d at 719, 388 N.E.2d at 933.) We find Stryker distinguishable from the instant case on these facts alone. In the instant case, the land was used almost exclusively for the recreational use of shareholders of Farms and their guests. “No trespassing” signs were placed at the entrance of Farms, and there was a rule among shareholders and their families that the school house lot and the lake were not to be used by anyone unless a shareholder or family member of a shareholder was present. The signs posted near the pond in the Stryker case are an invitation to the general public to swim whereas in the instant case, the general public was specifically told that they were not invited through the “no trespassing” signs. Having decided that neither defendant is protected by the Act, we must now decide whether enough people used the school house lot for the requisite number of days in order to trigger the application of the Recreational Area Licensing Act. Ill. Rev. Stat. 1983, ch. 111½, par. 761 et seq.

Defendants first argue that plaintiffs have waived the application of the Recreational Area Licensing Act by not arguing it at the trial court level. We find no such waiver. Plaintiffs have not changed any theory of their case. It was defendants’ contention that they were absolved of liability under the Act. Plaintiffs are merely responding to the trial court’s first order that the Act was applicable, and the trial court’s subsequent ruling granting Farms’ motion for summary judgment. Further, a review of the record indicates that plaintiffs clearly set forth reasons why the Act did not apply to the facts of the instant case at the trial court level, thereby preserving the issue for appeal.

In applying the facts of the present case to the Recreational Area Licensing Act, whose pertinent parts are previously cited, we cannot say at this point in the proceedings that the factual criteria for application of the Licensing Act have been met. While there was testimony that the “school house lot” was used more than 10 days per year for recreational purposes, there was no indication that it was used by groups of 10 or more for the requisite number of days. We remand for further proceedings, including but not limited to discovery concerning the size of the groups that used these premises. Our holding in no way restricts plaintiffs from pleading any alternative theories of liability besides the Licensing Act.

For the foregoing reasons, we affirm the denial of the circuit court of St. Clair County of summary judgment for defendant United Church of Christ. We reverse and remand the order of the circuit court of St. Clair County granting summary judgment for defendant Old Enterprise Farms, Ltd. We reverse and remand the order of the circuit court of St. Clair County finding the Recreational Use of Land and Water Areas Act applicable to the facts of the instant case.

No. 5 — 87—0532, Reversed and remanded.

No. 5-87-0759, Affirmed.

WELCH, P.J., and HARRISON, J., concur.