author: PRESIDING JUSTICE COCCIA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD JACKSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2418
    Opinion filed September 7, 1990.

      Michael J. Pelletier, Martin Carlson, and Kenneth F. Berg, all of State Appellate Defender’s Office, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Jeanne A. Morrow, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Introduction

Following a jury trial, defendant Gerald Jackson was convicted of aggravated criminal sexual assault and unlawful restraint. After the circuit court sentenced him to 18 years in prison, defendant appealed to this court. Because we have concluded that he was properly convicted of these crimes, we affirm.

Background

On August 29, 1986, defendant was charged by indictment with two counts of aggravated criminal sexual assault. That offense was then defined as follows:

“(b) The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(l).)

The State alleged that defendant sexually penetrated complainant C.S. by putting his finger and penis into her vagina, he being over 17 years of age and she being under 13 years of age. Defendant was also charged with one count of unlawful restraint. That offense was then defined as follows:

“(a) A person commits the offense of unlawful restraint when he knowingly without legal authority detains another.” (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3(a).)

The State alleged that defendant knowingly, and without legal authority, detained complainant.

Defendant filed his motion in limine on June 26, 1987, stating that he believed the State would seek to introduce the following evidence at trial: testimony as to the details of complainant’s statements to her mother W.S., the police, and medical personnel; and testimony by the treating physician about her opinion as to the cause of complainant’s injuries. Defendant prayed that this evidence be excluded.

Defendant’s motion was heard that same day. The State argued that it was seeking admission of complainant’s statements under the excited utterance exception, also known as the spontaneous declaration exception, to the hearsay rule. The State further argued that the doctor’s testimony was admissible under the treating physician exception to the rule against hearsay. The circuit court agreed, ruling that complainant’s statements were admissible under the excited utterance exception, and that the doctor’s testimony was admissible under the treating physician exception. Accordingly, the circuit court denied defendant’s motion in limine.

On June 29, 1987, the circuit court conducted a competency hearing regarding complainant. Complainant testified that she was 10 years old, and that she understood the importance of telling the truth. After no argument or cross-examination by defendant, the court found complainant competent to testify. Trial began that same day. We shall set forth the evidence only as it is relevant to the issues properly before us.

The State began its case with complainant’s testimony. Complainant testified that she lived with her mother, uncle, and brother on the first floor of a building on the south side of Chicago. Defendant, whom she identified in court, lived in the building’s basement. On Sunday, August 3, 1986, complainant was outside playing and came home about 4:30 p.m. Complainant saw her mother on the front porch of their home and asked her for money to buy ice cream. After complainant finished the ice cream, her mother told her to take a bath. Upon complainant’s request, her mother allowed her to take a shower. The only shower the family had was in the basement. Complainant went into the bedroom and undressed. Before she could get into the shower, defendant — who was naked — came into the bathroom, grabbed her around the stomach, picked her up, and took her into his bedroom. Complainant tried to fight and scream, but defendant had his hand over her mouth. Defendant closed the bathroom and then the bedroom doors. Defendant placed complainant down upon his bed, which was pushed up against the wall, and put his finger into her vagina, moving it around. Defendant next put his penis into complainant’s vagina, as far as it would go. This hurt complainant, and she experienced a burning sensation. Defendant was unable to put his penis all the way into her vagina, for complainant’s mother opened the door at the top of the basement stairs and called her name. Complainant’s mother came down the stairs. Defendant lay on top of complainant and pulled the cover over both of them. Defendant’s hand was still over complainant’s mouth and she could not escape, as she was pushed up against the wall. After calling complainant’s name in the bathroom, her mother came to the door of defendant’s bedroom. Her mother called for defendant, but he did not answer. Complainant’s mother came into the room. She asked defendant if he had seen complainant, and he replied that she left to go outside early in the morning. Complainant was struggling under the covers during the conversation. Complainant testified that her mother discovered her, pulled the covers back, and grabbed her.

According to complainant, her mother took her upstairs into their bedroom and dressed her. Complainant was crying. After a couple of minutes had passed, when she calmed down somewhat, complainant told her mother what had happened. Her mother turned the television up and called the police. She was taken upstairs to the neighbor’s apartment while her mother waited for the police. About five minutes later, her mother brought complainant down to meet a police officer. Although complainant was crying, she was able to tell the officer what occurred. Complainant, her mother, and the officer went to the police station, where the child was questioned by detectives. Complainant was taken to the hospital, where she was examined by a doctor. Complainant testified that she told the doctor what had happened, that her vagina hurt, and that it burned.

Complainant’s mother, W.S., also testified for the State. Her testimony is generally consistent with that of her daughter. W.S. testified that she had been widowed approximately five years. W.S. owned a two flat, and she rented out the second floor. Her apartment, located on the first floor, had access to the basement via a stairway. The basement had access to the outside through a backdoor. In August of 1986, W.S. was renting a room in the basement to defendant. There was no lock on the door of the basement bathroom, and the only shower was located there. At about 3:30 p.m. on August 3, she saw defendant pass by her front porch on his bike. When (after searching in vain for her daughter) she later entered defendant’s bedroom, he told W.S. that the child had left early that morning. W.S. then discovered complainant under the covers, struggling as if she were trapped and trying to escape. Her daughter was naked, and defendant appeared to be naked also. Complainant was crying. W.S. told defendant that her brother would kill him if he found out what happened, and defendant asked her not to tell her brother. She then took complainant, who was crying and trembling, upstairs. Defendant’s bedroom was directly below their bedroom, so W.S. turned up the volume on the television to muffle the sound of her telephone call to the police. W.S. had a conversation with her daughter. Over defendant’s objection, W.S. was permitted to testify that complainant said defendant:

“[Sjnatched her out of the bathroom, took her to his bed, laid her on the bed, put his finger in her and then she said he put hisself [sic] in her.”

During this conversation, which occurred approximately three minutes after W.S. rescued her daughter, complainant was still crying and trembling. The police officer arrived about 10 minutes later, and he arrested defendant. Complainant then repeated her story to the officer in the presence of W.S. After her daughter was examined at Wyler’s Hospital, they spent the night in LaRabida Hospital. Following their return home from LaRabida, W.S. was allowed to testify over defendant’s objection that complainant:

“[Hjad become scared of the house. Every room that I went into she followed me into, even to the bathroom. I would have to go to the bathroom but stand outside of the door with her.
Every night when it was time to go to bed she would pull the drapes tighter ***.
* * *
Every night she would pull the drapes real tight because she said she was scared.
* * *
She was restless. A lot of nights she said it seemed like she heard Jerry breathing.
* * *
I would have to be in every room of the house. Any room that she could go into I would have to go into it or any room I would go into she would follow me. She had become scared of the house.”

W.S. testified that her daughter behaved in this manner for approximately two weeks after they returned from LaRabida.

On cross-examination, W.S. admitted that she had known defendant for approximately four years, and that he was a friend of the family. However, she never left defendant alone with complainant. W.S. denied that defendant requested complainant stay out of his bedroom, because he suspected the child of taking money from him. On August 3, when W.S. allowed complainant to take a shower in the basement, she believed defendant was out riding his bike.

Chicago police officer Charles Toles testified for the State. About 5:05 p.m. on August 3, he was assigned to investigate a criminal sexual assault complaint. He arrived at complainant’s home at approximately 5:10. After speaking with W.S., he took defendant into custody. Officer Toles then interviewed complainant in the basement. She was crying and distraught. After about five minutes, he asked her to tell him what happened. Over defendant’s objection, Officer Toles testified:

“[Complainant] told me that she went down into the basement to take a shower on her mother’s orders. Her mother told her to go down in the basement and take a shower. She said she went downstairs, went to take a shower.
* * *
She went in and turned the water on. She took her clothes off and at that point the defendant came into the bathroom, picked her up, put his hand over her mouth and carried her into his room.
* * *
*** [H]e fondled her. He put his finger in her vagina and then he put his penis into her vagina, ***.
* * *
At which point she heard her mother call her. When her mother called her and there was no reply, her mother came downstairs and found [complainant] under the cover with Gerald Jackson and both were nude, at which point her mother grabbed [complainant] and took her out of the bed and summoned the police.”

Officer Toles testified that he heard complainant’s version of what had happened from the child before he heard it from W.S. The only question he asked complainant was “What happened?” Complainant told him what had occurred in narrative form, instead of in response to questions.

Dr. Karen Soren, complainant’s treating physician, testified for the State. Dr. Soren stated that she was a pediatrician at Wyler’s Children’s Hospital of the University of Chicago. After questioning Dr. Soren about her qualifications, the State tendered her as an expert in the field of pediatrics and child sexual abuse. There was no cross-examination by defendant on this issue. Dr. Soren testified that she was on duty in the emergency room at Wyler’s between 8 and 8:30 p.m. on August 3. She examined complainant at that time. According to Dr. Soren:

“[Complainant] told me that she had been — well, that an episode occurred at home whereby a man had tried to — had sexually assaulted her basically.”

In order to take a medical history, Dr. Soren had a conversation with complainant. Dr. Soren testified:

“[Complainant] told me that she had gotten undressed and was about to take a shower in the basement when the offender snatched her out of the shower — well, she wasn’t quite in the shower — snatched her out as she was about to get in the shower, put his hand over her mouth and took her to his room where she said that he touched her all over and that he put his penis into her vagina.
I then asked if he had put his penis into her mouth and she said no. Or into her bottom, her rectum, and she said no.”

As our analysis will make clear, it is significant that throughout her testimony Dr. Soren neither repeated complainant’s identification of defendant nor referred to him other than as “a man” or “the offender.”

The rest of Dr. Soren’s testimony may be summarized as follows: Dr. Soren testified that complainant said her vagina hurt. Dr. Soren then examined complainant’s body. The results of the examination were normal, apart from complainant’s vagina. The vaginal opening was very red and tender. When Dr. Soren retracted the lips of complainant’s vagina, its opening measured about one centimeter. Dr. Soren stated that complainant’s injuries were less than 24 hours old. Dr. Soren’s diagnosis was sexual assault and secondary vaginal irritation. She had complainant admitted to LaRabida as a sexual abuse victim. Based on her findings, her examination, and the history she took, Dr. Soren opined to a reasonable degree of medical certainty that her physical findings were consistent with the story complainant told her. The redness in complainant’s vaginal area meant that it was irritated. The fact that her hymen was intact was consistent with her story that there was only slight penetration. Dr. Soren’s findings were consistent with a penis being inserted over a short period of time and only slightly penetrating a 10-year-old. A good deal of force, and a long period of time, would be required to fully penetrate a 10-year-old’s vagina. A one-centimeter vaginal opening was larger than one would expect a 10-year-old to have, and it was consistent with what the child told her about the offender inserting his finger and then his penis in some slight fashion.

On cross-examination, Dr. Soren conceded that a 10-year-old could possibly have a one-centimeter vaginal opening. It was possible, albeit unlikely, that the opening of complainant’s vagina could be inflamed by riding a bicycle or wearing tight clothes. On redirect examination, Dr. Soren stated that redness can be caused by vaginitis, which in turn is caused by poor hygiene or something rubbing against the vagina. But Dr. Soren found no evidence of vaginitis on complainant. The only reason she gave for her condition was that the offender put his finger and penis into her vagina. Dr. Soren repeated that complainant’s injuries were consistent with her story.

After the State rested, and his motion for a directed verdict was denied, defendant testified. Defendant stated that he was 36 years old. He had lived in W.S.’ building for four years, paying his rent with food stamps. According to defendant, he helped the family during the last illness of W.S.’ husband, and thereafter performed numerous chores around the house. On August 3, he was sleeping at 3:30 p.m. He awoke and helped W.S. make lasagna. After eating, he went back to bed. The next thing he heard was W.S. calling for complainant. After telling W.S. the child was not there, he turned over and saw the naked child standing at the foot of his bed. Defendant panicked and replied to W.S. that her daughter went out the back door. Complainant then jumped over him and got under the covers. Immediately after she hid in his bed, her mother came into the room. He denied asking W.S. not to tell her brother what had happened. Defendant then got up and put on his clothes. He was arrested shortly thereafter. Early in 1986, and frequently thereafter, he told W.S. to keep her daughter out of his room, because he suspected she was taking money from him. Defendant denied raping or molesting complainant, explaining that even if he wanted to there was not enough time.

On cross-examination, defendant admitted that he knew complainant was 10 years old at the time of the incident. Defendant admitted that he did not tell W.S. the truth about where the child was when the former came into his bedroom; he explained that he panicked, complainant panicked, and he was trying to protect her. On redirect, defendant emphasized that the entire incident occurred within a matter of seconds.

Jeffrey Smith, a neighbor, testified as a character witness for defendant. Smith stated that defendant had a good reputation in the community.

After the circuit court denied defendant’s motion for a directed verdict, the jury found him guilty of aggravated criminal sexual assault and unlawful restraint on July 1, 1987. On July 29, 1987, defendant filed a motion for a new trial or, in the alternative, a judgment of acquittal. Defendant argued, among other things, that he was not proven guilty of the offenses charged beyond a reasonable doubt; that the circuit court erred in denying his motion in limine; and that it erred by overruling his objection to W.S.’ testimony concerning complainant’s post-incident behavior. At oral argument that same day, defendant stood on his written motion, and the circuit court denied it. Following the sentencing hearing, the circuit court sentenced him to 18 years in the Department of Corrections for aggravated criminal sexual assault and three years for unlawful restraint, to run concurrently with the 18-year sentence. Defendant filed his notice of appeal on July 30, 19"87. In the trial court, he was represented by the Cook County public defender; in this court, private counsel is representing him pro bono publico.

Analysis

On appeal, defendant argues that his unlawful restraint conviction must be vacated because it arose out of the same physical act as the aggravated criminal sexual assault conviction. Additionally, he contends that the circuit court erroneously permitted the State’s witnesses to testify to inadmissible hearsay. In particular, he asserts that the following exceptions to the hearsay rule are inapplicable: the corroborative complaint exception, the excited utterance exception, and the treating physician exception. Defendant also maintains that W.S.’ testimony about her daughter’s post-incident behavior (e.g., that the child had become afraid of the house, etc.) was inadmissible assertive-conduct hearsay, or at least an improper attempt to elicit the jury’s sympathy. Finally, defendant urges, he was not convicted of either offense beyond a reasonable doubt.

In People v. Nevitt (1990), 135 Ill. 2d 423, 448, 553 N.E.2d 368, 377-78, the supreme court stated — as it frequently has — that in order to preserve an issue for, review, a defendant must raise it in his post-trial motion; otherwise, in the absence of plain error, the issue is waived. In this case, defendant did not argue in his post-trial motion that the unlawful restraint conviction should be vacated because it arose from the same physical act as the aggravated criminal sexual assault conviction. We find no plain error, as this alleged error neither affected defendant’s substantial rights nor denied him a fair trial. (See Nevitt, 135 Ill. 2d at 448, 553 N.E.2d at 378.) Additionally, the evidence is not closely balanced. (See People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233, 238.) Thus, the issue is waived. In the absence of waiver, however, defendant could not prevail on this point, for his convictions arose from separate acts: the aggravated criminal sexual assault conviction arose from his sexual penetration of complainant; the unlawful restraint conviction arose from his detention of her. With this in mind, we now turn to the issues properly before us.

THE HEARSAY ISSUE

We need not dwell upon defendant’s contention that the testimony of W.S., Officer Toles, and Dr. Soren exceeded the scope of the corroborative complaint exception to the hearsay rule, whether in its common law or statutory forms. (See Ill. Rev. Stat. 1985, ch. 38, par. 115—10.) The record clearly shows that the admission of their testimony was sought by the State, and allowed by the circuit court, under the excited utterance exception (in the case of W.S. and Officer Toles) and the treating physician exception (in the case of Dr. Soren). Consequently, we shall proceed to consider whether the circuit court abused its discretion in ruling that their testimony was admissible under those exceptions. See People v. Driver (1978), 62 Ill. App. 3d 847, 853, 379 N.E.2d 840, 846.

Defendant argues that the circuit court abused its discretion in admitting the testimony of complainant through Officer Toles because complainant’s statement was not spontaneous and unreflecting, in that it was initiated by his question “What happened?” Moreover, defendant argues that the lapse of time between the incident and complainant’s statements to her mother and Officer Toles gave her time to fabricate a story.

In cases involving the alleged sexual abuse of children, a totality of the circumstances approach should be employed to determine whether a particular excited utterance is reliable enough to be admissible; the admissibility of the utterance should be determined on a case-by-case basis, after considering all of the relevant facts. (See In re Marriage of Ashby (1990), 193 Ill. App. 3d 366, 374-75, 549 N.E.2d 923, 927-28.) In Nevitt, the defendant argued that the trial and appellate courts erred when they found that the three-year-old victim’s statement to his mother met the requirements of the excited utterance exception. The statement at issue was made approximately five hours after the alleged incident, and it was made by the victim in response to his mother’s questioning. The supreme court rejected defendant’s argument, reasoning that the trial court did not abuse its discretion in ruling that the child’s statement was reliable. (See Nevitt, 135 Ill. 2d at 443-44, 553 N.E.2d at 375-76.) In People v. White (1990), 198 Ill. App. 3d 641, 555 N.E.2d 1241, the appellate court discussed at length the applicability of the excited utterance exception in the context of child sexual abuse cases. The court noted that statements made in response to general inquiries as to what occurred may nevertheless be spontaneous. See White, 198 Ill. App. 3d at 653, 555 N.E.2d at 1249, citing People v. Harris (1985), 134 Ill. App. 3d 705, 480 N.E.2d 1189.

In light of these cases, we cannot say that the circuit court abused its discretion in admitting complainant’s statements to her mother and Officer Toles as excited utterances. Complainant’s statements were sufficiently reliable to warrant an exception to the hearsay rule. The statements were substantially similar to her own testimony, given in open court, and they were consistent with Dr. Soren’s findings. We reject the notion, implicit in defendant’s argument, that mechanical application of the facts of particular cases should govern the resolution of such an issue. In other words, it is not decisive that, in a given case, one minute or one hour or one day elapsed between the alleged incident and the statements sought to be admitted. Similarly, it is of little consequence that an utterance may have been prompted by a general question. Rather, the principle that has emerged from the leading authorities is that admissibility is conditioned upon sufficient indicia of reliability. And, in this case, the statements were sufficiently reliable.

We must also reject defendant’s argument that Dr. Soren’s testimony exceeded the scope of the treating physician exception to the hearsay rule. Defendant acknowledges that a leading Illinois case on this question is People v. Gant (1974), 58 Ill. 2d 178, 317 N.E.2d 564. In Gant the supreme court upheld the admission, for purposes of substantive proof, of the treating physician’s testimony that the victim told him “ ‘she was sitting on the couch when a man entered the room behind her, threatened her, and apparently something hit her on the head, and at the same time a gun went off.’ ” (58 Ill. 2d at 181, 317 N.E.2d at 566-67.) The doctor also testified that the victim told him she knew her assailant. Defendant also relies upon People v. Sexton (1987), 162 Ill. App. 3d 607, 617, 515 N.E.2d 1359, 1366, and People v. Taylor (1987), 153 Ill. App. 3d 710, 721, 506 N.E.2d 321, 329. In both cases, the appellate court held that the doctor’s repetition of the complainant’s identification or naming of the assailant was error.

Here, by way of contrast, Dr. Soren neither repeated complainant’s identification of defendant nor named him. As noted above, she referred to him throughout her testimony as “a male” or “the offender.” Therefore, Sexton and Taylor are inapposite. Moreover, Dr. Soren’s testimony is no more incriminating than the testimony held to be admissible in Gant, so we fail to see how Gant is precedent for defendant’s contention that the circuit court abused its discretion in admitting her testimony. Indeed, where the complainant’s statements are primarily concerned with what happened to her rather than with who assaulted her, courts have favored the admission of the statements under the treating physician exception. (See People v. Enoch (1989), 189 Ill. App. 3d 535, 554-56, 545 N.E.2d 429, 443-44, citing United States v. Iron Shell (8th Cir. 1980), 633 F.2d 77.) In our case, complainant’s statements to Dr. Soren were primarily concerned with the circumstances of the assault instead of with the assailant’s identity. Accordingly, the circuit court did not abuse its discretion in applying the treating physician exception.

Lastly, we come to defendant’s theory that W.S.’ testimony regarding complainant’s post-incident behavior was inadmissible assertive-conduct hearsay. As we see it, however, W.S.’ testimony was not truly hearsay. A leading treatise on the law of evidence in this State points out that nonverbal conduct intended as an assertion-nodding, pointing, and the sign language of the mute — may be classified as hearsay, if it was done for the purpose of deliberate communication. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.2, at 572 (5th ed. 1990).) But nonverbal conduct not intended as an assertion should not be classified as hearsay. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.3, at 575 (5th ed. 1990); accord Federal Rule of Evidence 801, 65 F.R.D. 131, 153 (1975).) When a person acts without intending to communicate a belief, veracity is not involved. The principal dangers the hearsay rule is designed to guard against (lack of opportunity to test by cross-examination the actuality and accuracy of perceptions, recollection and recordation, narration, and sincerity) are not implicated. Whatever risk of error remains is more sensibly a factor to be used in evaluating weight and credibility rather than grounds for exclusion. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.3, at 573 (5th ed. 1990).

The distinction between nonverbal conduct intended as an assertion and such conduct not intended as an assertion is illustrated by comparing with the facts of a case cited by defendant to the facts of this case. In People v. Higgs (1973), 11 Ill. App. 3d 1032, 298 N.E.2d 283, a police officer testified that when he arrived at the scene of the crime, a person in the crowd gathered there shouted that the deceased’s killer was among four men also there. After the defendant was searched, the officer went on to state, several persons attacked the defendant, shouting that he had shot the deceased. The circuit court sustained his objection to the attackers’ statements, but allowed the testimony regarding the attack. The appellate court held that this testimony was prejudicial assertive-conduct hearsay that should have been excluded. (See Higgs, 11 Ill. App. 3d at 1037, 298 N.E.2d at 287-88.) Clearly the crowd’s conduct was nonverbal conduct intended as an assertion, or assertive-conduct hearsay, the intended assertion being that the defendant shot the deceased. Yet here complainant’s nonverbal conduct was not intended as an assertion and, therefore, was not hearsay. Both complainant and her mother believed that the former had been assaulted and that defendant had assaulted her. And both mother and daughter were available for cross-examination on this point if defendant wished to test their veracity.

By the same token, we must reject defendant’s claim that the admission of the post-incident behavior testimony improperly elicited the jury’s sympathy. In support of this proposition, he draws our attention to People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986, and People v. Gillman (1980), 91 Ill. App. 3d 53, 414 N.E.2d 240. But the facts of these two cases are not analogous to the facts of our case. In both cases, the appellate court held that the defendants were prejudiced by the admission of testimony regarding the psychiatric treatment the victims received after the incidents. Here the circuit court properly kept evidence of complainant’s subsequent therapy from the jury. We conclude, then, that the circuit court did not abuse its discretion in permitting W.S.’ testimony concerning her daughter’s post-incident behavior.

Defendant argues that the admission of the foregoing testimony was prejudicial, rather than harmless, error. Because we have determined that the circuit court committed no error, however, we need not reach the question of harmless error.

THE SUFFICIENCY ISSUE

In People v. Eyler (1990), 133 Ill. 2d 173, 549 N.E.2d 268, the supreme court restated the principles which apply when a defendant claims that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. It is the jury’s function to determine guilt or innocence, and a reviewing court shall not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of the defendant’s guilt. It is not the function of the court of review to retry the defendant. Instead, the relevant question is whether, after viewing all the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ultimately, it is for the jury to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in their testimony. See Eyler, 133 Ill. 2d at 191-92, 549 N.E.2d at 276, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

Applying these principles to our case, we readily conclude that defendant’s convictions for aggravated criminal sexual assault and unlawful restraint are not subject to reversal. Complainant’s testimony was corroborated by her mother, Officer Toles, and Dr. Soren. Defendant’s arguments about the sufficiency question are, at bottom, attacks on the credibility of the State’s witnesses or attempts to create conflicts or inconsistencies in their testimony. Obviously, the jury resolved these matters against defendant, and neither the facts of the case nor our function as a reviewing court justifies overturning their judgment.

Typical of defendant’s approach on this issue is the following false dilemma. Defendant notes that Dr. Soren testified that her findings were consistent with only slight penetration, but that complainant testified that defendant inserted his penis into her vagina as far as it would go. Defendant asks, rhetorically, how the physical findings can be consistent with only slight penetration, on the one hand, and with the insertion of the penis as far as it would go, on the other hand? The dilemma is false because defendant’s question assumes that there are only two possible explanations for the physical findings, when in fact there are more. That is, “as far as it would go” could very well equal “slight penetration,” given that complainant was only 10 years old and defendant 36, and that she testified that her mother called for her immediately after defendant inserted his penis. Similarly, defendant makes much of the fact that, although complainant stated she struggled with defendant, Dr. Soren found no bruises. But it does not strain credulity to observe that a 36-year-old man could subdue a 10-year-old girl without injuring her, in view of the relative differences in their size and strength. Finally, defendant claims that his actions, including not escaping through the backdoor while W.S. was calling and waiting for the police, are those of an innocent man. But we think defendant’s actions may also be explained by the fact that W.S. turned up the volume on her television while calling the police, so he did not know they were coming. Without laboring matters unnecessarily, we hold that a rational jury could have found the essential elements of both offenses beyond a reasonable doubt.

Conclusion

For the reasons stated, then, we have concluded that defendant was properly convicted of aggravated criminal sexual assault and unlawful restraint.

Affirmed.

LORENZ and MURRAY, JJ., concur.

      In order to protect the identity of the minor complainant, we shall refer to the child and her mother by their initials rather than by their full names.


source: Caselaw Access Project

license: Public Domain

text:
    LEAVENS, ARMIROS AND ROSS, LTD., Plaintiff-Appellant, v. KARIN ENGLISH, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1001
    Opinion filed September 7, 1990.

      Richard Jaffe, of Chicago, for appellant.
    Roosevelt Thomas, of Chicago, for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

I

Plaintiff Leavens, Armiros & Ross, Ltd. (Leavens), appeals from the circuit court’s order sustaining defendant Karin English’s motion to vacate a default judgment entered against her. For the following reasons, we have concluded that the circuit court did not abuse its discretion in sustaining English’s motion.

II

Leavens filed its complaint on August 13, 1985. Leavens alleged that it performed legal services for English at an agreed price of $3,406.22. Leavens further alleged that it demanded English pay its fee, but that she refused to do so. In the alternative, Leavens claimed that there was an account stated between it and English, and that the amount found due and owing was $3,406.22.

Leavens experienced difficulty in serving process upon English. On October 30, 1985, a special deputy was appointed to make service of process, and English was served on May 8, 1986. On June 11, 1986, an ex parte default judgment was entered against English in the amount of $3,406.22.

Leavens filed its citation to discover assets on June 15, 1987, over one year after it secured the default judgment. On July 20, 1987, a hearing on the citation was held in the circuit court. English appeared pro se at the hearing. She informed the court that her attorney, who had all her files, died three weeks before the hearing. English asked the court whether she had a right to counsel. Judge Elliott responded by telling English that Leavens had a default judgment against her. The court explained the nature of a citation proceeding to English, advised her to answer counsel for Leavens’ questions about her ability to pay the judgment, and informed her that she had the right to come back and vacate the judgment or any orders it might enter. The court told English that she could retain another attorney to assist her in vacating the judgment. After English answered counsel’s questions, the court stated:

“We’re going to do what we call heard and discharged. This means for six months from today, if you get any motions or anything you must come back. You’re free to go for now.”

English subsequently retained another attorney, who filed a petition to vacate the default judgment pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure on November 17, 1987. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) English alleged that in June of 1986, after she was served with Leavens’ complaint, she retained attorney Aldous Mitchell to defend her. English further alleged that Mitchell died in July of 1987. That same month, she received the citation, which required to her appear at the hearing of July 20, 1987. According to English, this was her first notice of the June 11, 1986, default judgment. Based upon Judge Elliott’s remarks at the hearing, quoted above, English stated she. was left with the impression that she had six months to take action regarding the judgment. English claimed she had not been dilatory, because she had retained another attorney and moved to vacate the judgment within six months. In addition, English claimed that she had a meritorious defense, because her obligation to pay for the legal services rendered by Leavens was contingent upon its success in assisting her to fund a proposed business. As Leavens did not complete its work, English stated, her business was not funded; thus, she was not obliged to pay its fee.

Along with a transcript of the July 20, 1987, hearing, English attached an affidavit to her petition. In the affidavit, English affirmed that after the hearing of July 20, 1987, she reviewed the court file, had it reproduced, and searched her records regarding Leavens’ claim. Again, English stated that she had a meritorious defense, as Leavens did not complete its legal services, as she and Leavens had agreed that its work for her business was a necessary step to financing, and as its fees were contingent upon actual receipt of financing. Because Leavens did not put together an adequate proposal, English affirmed, her business was never financed. Attached to the affidavit was a letter to Leavens, dated August 17, 1985. In her letter, English wrote that Leavens agreed to provide legal services in developing an offering memorandum to finance her business. It was her understanding, the letter continued, that payment for services rendered was contingent upon complete funding of the business. English wrote that her business was not financed, due to an inadequate offering memorandum. English concluded by stating that her business was unable to meet its expenses and, as agreed, she would not pay Leavens until financing was obtained.

Leavens filed its response to English’s section 2 — 1401 petition on November 24, 1987. Leavens argued that the default judgment against English should not be vacated as she failed to make the required showing under section 2 — 1401, namely a meritorious defense and due diligence. Leavens filed a supplemental response on December 3, 1987. It submitted the affidavit of attorney Thomas R. Leavens, along with a letter to English dated February 2, 1985. According to these documents, Leavens was not responsible for the failure to secure financing for English’s business and the legal fees charged to her were not contingent upon successful financing.

English then filed a second affidavit in support of her petition. In this affidavit English affirmed that when, after being served, she hired attorney Mitchell to represent her, she gave him a $350 retainer.

A hearing on English’s petition began on January 4, 1988, and was continued until January 7, 1988. On the latter date, Leavens argued that the default judgment should not be vacated, because English was chargeable with her original counsel’s neglect in not defending her against its claim. The hearing was continued until March 1, 1988. On that date, Judge Balanoff noted that Leavens waited one year after securing its default judgment to file its citation to discover assets, which delayed the proceedings. The court then found that English met her burden of showing a meritorious defense and due diligence. Accordingly, the circuit court sustained English’s petition to vacate the default judgment. Subsequently, Leavens appealed to this court. See 107 Ill. 2d R. 304(b)(3).

Ill

Section 2 — 1401 provides a means for obtaining relief from a default judgment after the passing of 30 days from the judgment’s entry. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) A section 2— 1401 petition invokes the equitable power of the circuit court, when the exercise of such power is necessary to prevent injustice. (See Tucker v. McNulty (1988), 173 Ill. App. 3d 722, 725, 527 N.E.2d 953, 955.) Two elements must be alleged in a petition under this section: first, the petitioner must have a meritorious defense; second, the entry of judgment must not have been the result of the petitioner’s lack of diligence. In determining diligence, the law looks to what a reasonable person in the petitioner’s circumstances would have done. The decision to vacate rests within the sound discretion of the circuit court and will not be disturbed on review unless that court abused its discretion. See Tucker, 173 Ill. App. 3d at 725-26, 527 N.E.2d at 955.

We cannot say that the circuit court abused its discretion in concluding that English had a meritorious defense to Leavens’ claim. English’s section 2 — 1401 petition, the supporting affidavits, and the letter of August 17, 1985, sufficiently allege that her payment to Leavens for legal fees was contingent upon the successful funding of her business, and that the business was not funded because of Leavens’ conduct. Although Leavens denies the truth of these allegations, and we express no opinion regarding their truth, English undoubtedly would have a meritorious defense to Leavens’ claim if they proved to be true.

The matter of English’s diligence is more complex. Leavens’ principal argument in this court, as below, is that English is bound by the negligence of her first attorney — now deceased — who did not defend her against its complaint. A court may, however, refuse to impute such negligence to the petitioner when mitigating circumstances are present. See Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 488, 386 N.E.2d 291, 294 (where petitioner retained substitute counsel when it became apparent that his first attorney failed to take appropriate action, circuit court did not abuse its discretion in sustaining petition).

We cannot say that the circuit court abused its discretion in concluding that English exhibited due diligence. Shortly after she was served with process, English retained, attorney Mitchell, paying him $350 to defend her. Mitchell subsequently died. English then appeared at the citation hearing to protect her rights. English understood Judge Elliott’s remarks to mean that she had six months to vacate the default judgment. Apparently, the judge was referring to the six-month automatic termination period that applies to citation proceedings. (See 107 Ill. 2d R. 277(f).) In our opinion, it was not unreasonable for someone in English’s position (a pro se defendant) to have interpreted Judge Elliott’s remarks as meaning that she had six months to vacate the default judgment. Within six months English reviewed the court file as well as her own records, retained new counsel, and filed a section 2 — 1401 petition.

We also have considered Leavens’ delay in executing on its judgment against English. While not controlling, a delay in execution of more than 30 days after the rendition of a default judgment casts a cloud upon the proceedings and is a fact to be considered in determining due diligence. (See Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062, 1067, 425 N.E.2d 1344, 1348.) As previously mentioned, Judge Balanoff observed below that Leavens did not commence citation proceedings until one year after securing its default judgment against English. Therefore, on the basis of the foregoing facts and principles, as well as the deferential standard of review, we refuse to overturn the circuit court’s order sustaining English’s motion to vacate.

IV

In closing, we must comment upon the parties’ conduct in this court. English’s counsel failed to appear for oral argument. Leavens’ counsel filed a brief that fails to conform with the supreme court rules, in that it lacks any citations to the record (113 Ill. 2d Rules 341(e)(6), (e)(7)), and that the appendix lacks copies of the order appealed from and the notice of appeal (107 Ill. 2d R. 342(a)). While English’s conduct is no more excusable than Leavens’ conduct, it does not behoove a party that charges its opponent with violating the rules of trial court procedure to violate the rules of appellate court procedure.

For the reasons stated, then, the circuit court’s order sustaining English’s section 2 — 1401 petition to vacate Leavens’ default judgment is affirmed.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORDELL JONES, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1128
    Opinion filed September 7, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Judy L. DeAngelis, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Defendant Cordell Jones was convicted of possessing a stolen motor vehicle, contrary to the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 100 et seq.), and sentenced to three years in the Department of Corrections. In this court, Jones has challenged the constitutionality of section 4 — 103 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103), on numerous grounds. Because Illinois reviewing courts have rejected the challenges he raises, we affirm.

On appeal, Jones contends only that section 4 — 103 is unconstitutional; thus, a lengthy recitation of the facts may be omitted. Jones was charged by information with possession of a stolen motor vehicle and theft. On January 11, 1988, following a bench trial, he was convicted of both offenses. On February 9, 1988, Jones argued his motion for a new trial, and the circuit court vacated the theft conviction. But the court refused to declare section 4 — 103 unconstitutional. On April 6, 1988, the court sentenced Jones to three years in prison. Jones’ notice of appeal was filed on April 11, 1988. We set the case for oral argument on January 23, 1990. However, Jones’ counsel subsequently requested that we remove the case from the call, in light of recent decisions of the supreme and appellate courts. Accordingly, we took the case on the briefs alone.

The State argues that Jones waived the issue of section 4— 103’s constitutionality, by failing to raise it in the circuit court. Our review of the record, however, reveals that Jones did raise the issue below. Jones attacked section 4 — 103 in his written motion for a new trial, and he challenged it at the hearing of February 9, 1988. Be that as it may, Jones was not required to raise this issue below in order to argue it on appeal. While there was authority in Illinois supporting the proposition that a statute’s constitutionality must be questioned in the circuit court to be preserved for appellate review, the supreme court has recently made it clear that a statute may be challenged for the first time on appeal. See People v. Bryant (1989), 128 Ill. 2d 448, 453-54, 539 N.E.2d 1221, 1223-24.

We now turn to the merits of Jones’ appeal. Section 4 — 103 provides:

“Offenses relating to motor vehicles and other vehicles— Felonies, (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, rental contracts, leasing agreements and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle or an essential part of a stolen or converted vehicle has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote.

* * *

(b) Sentence. A person convicted of violation of this Section shall be guilty of a Class 2 felony.” (111. Rev. Stat. 1987, ch. 95V2, pars. 4 — 103(a)(1), (b).)

As mentioned above, Jones has challenged section 4 — 103’s constitutionality on many grounds, but those challenges have been rejected by the reviewing courts of this State.

For example, following the third division’s opinion in People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890, Jones argues that section 4 — 103 violates the due process and proportionate penalty provisions of the Illinois Constitution. (Ill. Const. 1970, art. I, §§ 2, 11.) Specifically, he contends that because possession of a stolen motor vehicle is both a less culpable offense than theft and a lesser included offense of theft, it should not be punished more severely than theft. In Bryant, however, the supreme court reversed the third division, holding that section 4 — 103 did not violate the due process and proportionate penalty clauses. The supreme court reasoned that the legislature, by steadily increasing the penalty for possession of a stolen motor vehicle over the years, indicated its intent that this offense is a separate, more serious offense than theft, rather than a lesser included offense of theft. (Bryant, 128 Ill. 2d at 457, 539 N.E.2d at 1225-26.) This court came to the same conclusion, earlier, in People v. Carlyle (1987), 159 Ill. App. 3d 964, 968, 513 N.E.2d 61, 63. See also People v. Ambrose (1988), 171 Ill. App. 3d 87, 525 N.E.2d 536; People v. Smith (1987), 159 Ill. App. 3d 156, 512 N.E.2d 71; People v. Larson (1987), 158 Ill. App. 3d 135, 511 N.E.2d 191.

In Bryant, the supreme court rejected another argument that Jones makes here. The appellate court in Bryant determined that the General Assembly created an unconstitutional statutory scheme when it enacted section 4 — 103. That is, the third division maintained, possessors of stolen motor vehicles were unconstitutionally punished more severely than thieves, in that only the former and not the latter were punishable under section 4 — 103. Yet the supreme court ruled that all persons who possess a stolen motor vehicle — including professional thieves — are punishable under section 4 — 103. (Bryant, 128 Ill. 2d at 456, 539 N.E.2d at 1224.) Consequently, in view of our supreme court’s reasoning in Bryant, we cannot hold that section 4 — 103 violates the due process and proportionate penalty provisions of the Illinois Constitution.

Jones has also attempted to identify infirmities in section 4 — 103 that were not before the supreme court in Bryant. However, these alleged infirmities have been rejected by opinions of this court, as well as other courts, which we are not disposed to depart from. For instance, Jones urges that section 4 — 103 violates due process because it is not reasonably related to the goal of preventing theft. But in People v. Gentry (1990), 192 Ill. App. 3d 774, 777, 549 N.E.2d 609, 610-11, we found that section 4 — 103 is reasonably related to this purpose, as it works directly against activities involved in the procurement of stolen motor vehicles and as it works to eliminate the market necessary to support car thieves.

Jones complains that section 4 — 103 violates his due process rights because the means chosen by the legislature to effect its aims were too indirect. In Gentry, we also rejected an identical argument, concluding that as section 4 — 103 was reasonably designed to remedy the evils of automobile theft, it was immaterial whether the statute was the most direct means to effect this end. In any event, we concluded that by including within its reach only those possessors of stolen motor vehicles who know the vehicles were stolen — or who are chargeable with such knowledge — section 4 — 103 contained the requisite aspect of culpable conduct to effect its purposes. See Gentry, 192 Ill. App. 3d at 777-78, 549 N.E.2d at 611-12.

Finally, Jones asserts that section 4 — 103 is unconstitutionally vague because it embodies contradictory mental states (namely, scienter and constructive knowledge), thereby denying citizens of ordinary intelligence fair notice of what conduct is prohibited. Jones relies upon People v. Monroe (1987), 118 Ill. 2d 298, 515 N.E.2d 42, in which the supreme court declared the Drug Paraphernalia Control Act (Ill. Rev. Stat. 1985, ch. 561/2, par. 2101 et seq.) unconstitutionally vague. But in Gentry (192 Ill. App. 3d at 778, 549 N.E.2d at 612) and People v. Malone (1989), 188 Ill. App. 3d 1094, 1096-97, 545 N.E.2d 168, 169-70, this court distinguished Monroe. Unlike the act at issue in Monroe, we opined, section 4 — 103 merely provides that the requisite knowledge — that the vehicle was stolen — may be inferred from a person’s exclusive and unexplained possession of it. The third division came to the same conclusion in People v. Hall (1989), 187 Ill. App. 3d 1084, 543 N.E.2d 1038. In People v. Ward (1990), 194 Ill. App. 3d 229, 235-36, 550 N.E.2d 1208, 1212-13, the second division likewise rejected the analogy to Monroe, reasoning that section 4 — 103(a) only created an evidentiary presumption, instead of a mental state of constructive knowledge. See also Gentry, 192 Ill. App. 3d at 778-79, 549 N.E.2d at 612.

In conclusion, as the supreme and appellate courts of this State have upheld the constitutionality of section 4 — 103, we affirm the circuit court.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE MURRAY

text:
    JAMES BITTLER et al., Plaintiffs-Appellants, v. WHITE AND COMPANY, INC., Defendant-Appellee (D.P. Way Corporation, a/k/a D.P. Way Company or D.P. Way Division of Cannon Industries, Inc., et al., Defendants).
    First District (5th Division)
    No. 1—89—2444
    Opinion filed September 7, 1990.

      Hardiman & Hardiman, P.C., of Chicago (Paul G. Hardiman, of counsel), for appellants.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Samuel A. Purves, and Christine L. Olson, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs, James Bittler and his wife, Barbara (the Bittlers), appeal from the trial court’s grant of summary judgment in favor of White and Company, Inc., one of the defendants named in their strict liability in tort and negligence action. Although the matter still pends in the trial court as to the other named defendants, the present appeal is timely and appropriate because the trial court entered a finding that there was no just cause to delay enforcement or appeal of its decision (107 Ill. 2d R. 304(a)) making the otherwise nonfinal order appealable.

The facts of the case are not in dispute. On June 3, 1984, James Bittler, an employee of Commonwealth Edison, was injured during the course of his employment when he was struck on the head by the tailgate of an Ultravac machine, a truck-mounted vacuum loader and cleaner, as it was being lowered by another employee. The Bittlers brought this cause of action to recover for injuries James Bittler allegedly suffered as a result of this incident and for his wife’s loss of consortium. The action, which was predicated upon strict liability in tort and negligence, was lodged against D.P. Way Corporation (D.P. Way), the manufacturer, and Doyen & Associates (Doyen), the designer, of the Ultravac machine that had been sold to Commonwealth Edison; and against White and Company, Inc. (White), the exclusive sales representative for D.P. Way in the northern Illinois and Indiana territory.

In their third amended complaint, plaintiffs alleged in their strict liability counts (counts I and III) that the defendants were engaged in the design, manufacture, sale, distribution, or maintenance of the Ultravac unit, which was defective, unsafe and unreasonably dangerous because it lacked various devices, controls, or guards that would prevent the tailgate from being lowered while someone was standing behind the machine. In the remaining counts (counts II and IV), plaintiffs alleged that defendants were negligent for manufacturing and/or selling a defective product, for failing to make certain safety devices available, for failing to warn of the risks associated with using their product without certain safety devices, for failing to instruct purchasers of the product on the proper usage of the safety devices, and for failing to properly maintain and service the equipment.

Defendant White filed a motion, supported by affidavits and depositions, contending that it was entitled to summary judgment because it did not design, manufacture, or gain possession of the Ultravac which allegedly injured James Bittler and so it was not in the chain of distribution for the Ultravac machine and, therefore, not subject to the imposition of strict tort liability. White also claimed that it did not commit any acts or omissions that proximately caused plaintiff’s injuries and therefore could not be held liable in negligence. A hearing was held on White’s motion for summary judgment, which the trial court then allowed. After denial of the Bittlers’ petition for rehearing, this appeal followed.

The only issue presented on appeal is whether White may be held legally responsible, either in strict liability or in negligence, for the injuries suffered by the Bittlers. The Bittlers claim that the trial court erred in granting White’s motion for summary judgment because White is liable in strict liability as one in the chain of distribution of the allegedly defective product and because a question of material fact was raised as to whether White is liable in negligence for: “(1) failing to ascertain from the manufacturer the availability of certain safety equipment including the safety bar, (2) failing to offer to the purchaser [Commonwealth Edison] the option to purchase the safety bar with the vacuum loader, and (3) failing to warn of the risks and dangers associated with the use of the vacuum loader without the safety bar in place when the tailgate door was raised and lowered.”

Upon our review of the matter we find that we must reverse the decision of the trial court with respect to its grant of summary judgment on the strict liability counts and affirm the trial court’s judgment with respect to the negligence counts.

The public policy rationale which justifies imposing strict liability on manufacturers as well as sellers, suppliers, wholesalers, distributors, and even lessors is based on the fact that these entities, as part of the chain of distribution, are involved in and reap a profit from the placement of the allegedly defective product into the stream of commerce. (Hebel v. Sherman Equipment (1982), 92 Ill. 2d 368, 442 N.E.2d 199; Crowe v. Public Building Commission (1978), 74 Ill. 2d 10, 383 N.E.2d 951.) Even parties who are not within the actual chain of distribution, but who play an integral role in the marketing enterprise of an allegedly defective product and participate in the profits derived from placing the product into the stream of commerce, are held liable under the doctrine of strict liability. (Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155.) In Connelly our supreme court held that the doctrine of strict liability applied to Uniroyal despite the fact that its only link to the chain of distribution was its authorization of the use of its trademark, which appeared on the allegedly defective tire that was admittedly manufactured by a Belgian company and sold by that company to General Motors, which then installed the tire on their automobile, which was eventually sold to plaintiff.

Consequently, it appears that the imposition of strict liability hinges on whether the party in question has any “ ‘participatory connection, for [its] personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product.’ ” Kasel v. Remington Arms, Inc. (1972), 24 Cal. App. 3d 711, 725, 101 Cal. Rptr. 314, 323, quoted in Hebel v. Sherman Equipment, 92 Ill. 2d at 379, 442 N.E.2d at 205; see also Alvarez v. Koby Machinery Co. (1987), 163 Ill. App. 3d 711, 516 N.E.2d 930.

In the present case White, the exclusive sales representative for D.R Way, contends that it merely acted as a liaison between the manufacturer/seller (D.R Way) and the purchaser (Commonwealth Edison) and that its role in the sales transaction was tangential, placing it outside the chain of distribution. However, this characterization belies the truth, which is that White was bound by its exclusive sales representative contract with D.P. Way to promote the sale of D.P. Way products and, through this relationship, derived an economic benefit in the form of a commission from all D.P. Way sales made within its territory, including, apparently, the one involved here. For this reason we find that White’s “participatory connection” with the allegedly defective product was sufficient to make it subject to the application of the strict liability doctrine and so we reverse the trial court’s grant of summary judgment in favor of White on the strict liability counts.

We note as an aside that White could have sought, and still may seek, dismissal from this cause of action by filing a motion pursuant to section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 621). According to this provision, a nonmanufacturing defendant may be entitled to dismissal once the plaintiff obtains jurisdiction over the manufacturer of the allegedly defective product. However, such a dismissal would be without prejudice and White’s possible entitlement to dismissal pursuant to this provision has no relevance to the issue of whether the trial court’s grant of summary judgment was proper.

We now address the trial court’s grant of summary judgment with respect to the negligence counts. A cause of action based on negligence is different than a cause of action based on strict liability. A cause of action based on negligence requires a showing that a duty was owed by the defendant to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the injury for which the action was brought. (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088; Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 482 N.E.2d 358.) In the present case plaintiffs argue that White, as a sales representative, had a duty to ascertain from the manufacturer information concerning the availability of a safety bar, inform the purchaser of the existence of this safety bar and warn the purchaser of the risk and dangers of using the vacuum loader without the safety bar in place. Plaintiffs further contend that there existed a material issue of fact as to whether White breached these duties, so that summary judgment should not have been granted. We disagree.

It is well-settled law in Illinois that summary judgment is proper in a negligence action only when the pleadings, depositions, affidavits, and admissions on file show that no genuine material issue of fact exists and that defendant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) Whether a duty was owed by defendant to plaintiff is a question of law, to be decided by the court (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116), and where the evidence before the court shows that a verdict would have to be directed, summary judgment would be proper. Pedersen v. Joliet Park District (1985), 136 Ill. App. 3d 172, 483 N.E.2d 21.

The evidence in this case, provided by the pleadings, affidavits, and depositions, indicates that White was only indirectly involved in the sale of the vacuum loaders to Commonwealth Edison. Because White was the sales representative for the territory, White was notified by D.P. Way that it had learned that Commonwealth Edison was interested in purchasing several vacuum loaders. White then contacted Commonwealth Edison concerning their interest in the vacuum loaders and transmitted their bid on the machines to D.P. Way. Although White maintained contact with Commonwealth Edison throughout the negotiation process, White’s role was mainly as a liaison between the parties. D.P. Way dealt directly with Commonwealth Edison concerning the sale of the machines, was responsible for demonstrating the vacuum loaders to Commonwealth Edison and provided training on the vacuum loaders to Commonwealth Edison employees after the vacuum loaders were purchased. Finally, there was also uncontroverted evidence that Commonwealth Edison sent an inquiry directly to D.P. Way in December 1982, asking about the cost of a tailgate prop, the safety device that would block the tailgate door in an open position. D.P. Way responded to this inquiry directly to Commonwealth Edison, and Commonwealth Edison then purchased tailgate props for each of the vacuum loaders they had purchased. The tailgate props were delivered to Commonwealth Edison in March 1983 but a prop was never installed on or used with the vacuum loader that caused the injury in this matter.

We find that, as a matter of law, these facts fail to establish that White was under any obligation to obtain or provide information concerning the availability of safety devices or to warn of the risks of operating a vacuum loader with a safety device. Rather, the evidence indicates that D.P. Way sold the allegedly defective equipment to Commonwealth Edison and was responsible for providing information and training on the proper usage of the equipment.

Additionally, the facts do not show that any of the alleged duties, even if owed by White, were ever breached or that the breach could have been the proximate cause of the injuries suffered. It is obvious from the facts that Commonwealth Edison had been made aware of the availability of the tailgate safety device by either White or D.P. Way, that Commonwealth Edison had purchased the safety device and had failed to install the device or instruct their employees on the usage of the device that they had purchased. For all these reasons, we find that the trial court did not err by granting White’s motion for summary judgment on the negligence counts.

The order of the circuit court of Cook County granting White summary judgment is affirmed in part and reversed in part and the case remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK VEGA, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1970
    Opinion filed September 7, 1990.
    Mark W. Solock and Barry A. Spector, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Mark Vega, was found guilty of murder and attempted murder and was sentenced to concurrent prison terms of 30 years and 5 years, respectively. On appeal, defendant contends the trial court erred in denying his first and second motions to quash arrest and suppress evidence because an illegal seizure occurred prior to a formal arrest, and because no probable cause existed for an arrest.

On March 13, 1986, 16-year-old Christine Special was shot in the head and killed while driving with Ida Caram at 21st Street near Washtenaw in Chicago. Caram told the police that she saw two young men standing near the car, making gang signals and shouting “Satan Disciples.” The pair walked to the middle of the street, behind Special’s car, and the shorter man pulled a gun and began shooting. Special was shot in the head. Caram ran from the car into a tavern, as the man continued shooting at her. Caram described the shooter as 18 years old, 5 feet 10 inches tall, thin build, and black hair. The man standing next to him was 19 years old, 6 feet tall, thin build, and black hair. She could not identify either man in lineups or photog /aph displays.

Robert Sanchez, the shooter, later pled guilty to the murder of Special and attempted murder of Caram, and was sentenced to a 35-year term. He is not involved in this appeal.

On October 1, 1986, a hearing was held on defendant’s first motion to quash arrest and suppress evidence.

Maria Medina, defendant’s mother, testified that officers spoke with defendant between March 13 and April 3. Medina telephoned the police and asked why they were looking for defendant. “[Tjhey told me they just wanted to ask him some questions about the incident ***.” An officer later telephoned and said defendant was at the station and being questioned. Her son was released. Also after March 13, 1986, Officers Thedford and Peterson came to Medina’s home and asked for a photograph of defendant, which she gave them.

On April 3, 1986, at 12:40 p.m., Thedford telephoned and said they were coming over to ask defendant some questions about the incident. Medina told Thedford, “Fine.” She knew her son had been mentioned in connection with the homicide. Medina wakened defendant. Twenty minutes later, Thedford and Peterson arrived. When defendant entered the room, Thedford “told him to get his jacket.” Medina asked “why was he to go get his jacket if they were gonna ask him questions there.” Thedford responded “that they could ask him questions better at the station.” Medina reminded the officers that defendant had already been questioned and asked why he had to go to the station again. “He told me that these tactical officers don’t know how to ask questions; that they knew better how to ask him questions.”

Medina testified that she told her son to go with the police because “[i]f I know that it’s got something to do with the police, you just do what the police say.” The officers promised that defendant would be home before Medina left for work at 3 p.m. Thedford gave Medina his business card with the telephone number for Area 4, in case she had questions. The officers did not ask if Medina wished to accompany them and did not indicate defendant could refuse to go. Medina did not tell the police she did not want her son to talk to them or that she wanted him to have a lawyer or ask what the questions concerned; and did not try to stop them or accompany them to the station.

Medina watched the officers take defendant to the car. “They had my son by his arm,” and they opened the car door for him. After 3 p.m., Medina telephoned the police station every 20 to 30 minutes. She asked to speak with Thedford, but was told he was out on the street. After she tried at 4 p.m., Thedford returned the call. “He told me that my son wasn’t cooperating [and asked] *** if I could talk him into taking a lie detector test.” Thedford said defendant could then go home. Medina spoke with defendant and told him to cooperate so he could go home. She told him if he had no involvement with the homicide, he should take the test. Defendant did not tell Medina whether he was going to take the test. “He didn’t know.” Thedford then got back on the telephone and asked what defendant had said to Medina. Medina continued to telephone the station every half-hour after that. Early in the morning of the following day, Medina was told that defendant had made a statement concerning his involvement in the shooting.

Defendant, who was 16 years old at the time of the shooting, denied that on March 13, 1986, at 11:30 p.m., he was stopped by police in the vicinity of 21st and Washtenaw. About March 24, 1986, the police stopped him on the street and asked him about the shooting of a young girl.

On April 3, 1986, his mother woke him and said the police were coming to talk with him. He did not ask his mother why the police wanted to talk to him, and she did not offer any information. He did not know they wanted to talk about the shooting. He washed up before they arrived.

When the police arrived, they told defendant to put on his coat. Defendant did not refuse to accompany them. Defendant went with the police because “I felt like I didn’t have a choice.” He felt compelled to go “[b]ecause the tone of voice was deep and they said, you know, get your coat. I obeyed them.”

Thedford put his hand on defendant’s arm, grasping it, before they walked out the door. Defendant was between the two officers. While walking down the stairs, defendant told the officers, “I don’t want to go.” He had not said that to his mother. The officers responded, “You’re going.”

Outside, at the unmarked car, the officers searched defendant after making him stand with his legs spread apart. They put him in the back seat of the car, where there were no handles inside the doors. During the 15-minute ride, the police never told him he was under arrest. Defendant testified that when they got in the car, he found out they wanted to question him about the shooting.

At the station, he was put in an interview room alone. The police said nothing to him. The door was closed and he heard a lock shut. The door had no handle.

Two hours after arriving at the station, defendant spoke with his mother on the telephone. He told her he did not want to stay at the station. “She told me to obey what they say and you’ll come home.” He repeated that he wanted to go home.

Officer Terrence Thedford testified for the State that Caram reported the circumstances of the shooting to him. On March 17 or 18, 1986, Thedford went to defendant’s home. Thedford believed defendant might have information about the shooting. “I would say I didn’t know if he had any more or less involvement than all the other names that came up in this investigation.” Thedford had previously left word with defendant’s mother and grandfather, and left business cards with a message that they wanted to talk to defendant, but defendant never contacted the police.

The preliminary police report stated that the offenders were affiliated with the Satan Disciples. Thedford did not believe defendant was in the Satan Disciples gang. He knew Caram had seen a photograph of defendant and had not identified it.

On April 3, 1986, at 1 p.m., Thedford telephoned Medina and said he would still like to talk with her son, and asked whether she knew where he was. She said her son had returned home after being gone for a few weeks. Thedford and his partner, Officer Steve Peterson, drove to Medina’s home. They did not have an arrest warrant or search warrant.

At Medina’s home, Thedford “just informed her that we were still working on the case and we would like to take her son and talk to him at the police station.” Thedford did not recall Medina asking why they could not question defendant at home, but it was possible that she did so. Defendant then entered the room. Thedford explained they were still investigating the shooting and, “I asked him if he would come down to the station and he said yes.” They did not offer defendant the option of traveling to the station on his own. Leaving the apartment, defendant could have been, walking between the two officers. Defendant did not say he did not want to accompany them. “He was totally cooperative.”

At the police station, defendant was placed in an interview room. He was not handcuffed or advised of his rights. They did not lock the door, but Thedford could not remember if the door was closed. There were handles on the inside of the interview room doors. Defendant was free to leave. Thedford did not inform defendant of that fact.

During their conversation, the officers began to have doubts about defendant’s statements. In regard to whether defendant was still free to leave at that point, Thedford testified: “It never came up.” Thedford continued:

“THEDFORD: I am not sure what my decision would have been. I would say I probably would have tried to talk to him some more.
DEFENSE COUNSEL: And you would have tried to talk to him there, correct?
THEDFORD: Correct.
DEFENSE COUNSEL: And you would have tried to discourage him from leaving?
THEDFORD: Yes, if he wanted to leave. I don’t think at that point I could have physically restrained him; had the right to restrain him. I am not sure.”

After their initial conversation with defendant, the officers were “finished talking to him.” When Thedford left the interview room, he did not “know if I closed the door. It may have been open. He was cooperating completely at this point.” The police then tried, unsuccessfully, to contact defendant’s girlfriend to confirm his alibi.

The officers wanted defendant to take a lie detector test because they had doubts about his statements concerning the night of the shooting. Defendant refused to take the test and insisted that he was not required to take it. Later, however, defendant said he might take the test. Thedford’s report stated that defendant adamantly refused to take the test. It did not say defendant “might” take it. At this point, Thedford still did not inform defendant that he could leave. He again left defendant alone in the interview room.

In regard to a lineup, Thedford testified that the decision of whether to hold a lineup including defendant had not yet been made. “[W]e were thinking in that direction.” Nevertheless, if defendant had tried to leave then, Thedford did not “think I would have physically restrained him.” He would have “gone over and talked to him.” Thedford continued:

“If stopping him is a matter of physically tackling him or — I don’t know if I would have physically tackled him.
* * *
I wouldn’t have gone and stopped him. I would have walked up to him and explained the circumstances and asked for a reason.
* * *
He would not have to give me a reason, but being a reasonable man, I would have liked to have asked what was happening. I am trying to conduct an investigation.”

Defense counsel also asked whether Thedford would have physically stopped him just to talk to him. Thedford responded, “It would have depended upon the amount he was deciding to leave with.”

At about 4 p.m., Thedford telephoned Medina to inform her of the progress of the investigation. Thedford told Medina that defendant was not cooperating as far as taking a lie detector test. He told her defendant was “fully cooperative up to the point of the polygraph, which I felt was unusual.” He testified further:

“Basically I told her just exactly what her son had said about his knowledge of the case and where his whereabouts were and of the fact that we had some doubts about everything he was telling us and that we had asked if he would be willing to take a lie detector test and he was adamant in his refusal to take a lie detector test.
I asked — I don’t recall — I asked her or she asked to talk with her son, but at some time, Mark was permitted to talk with his mother.”

They spoke for 5 to 10 minutes. Thedford spoke with Medina again, “Q]ust to explain to her that we were still talking with her son and that I would have to see what would be the decision made on the investigation with regards to the third watch and what would happen with her son.” Thedford turned the case over to Officers Vucko and Summerville.

“I had to basically explain the entire investigation to them. The circumstances of how it happened to the information that had come into our office to the progress of the investigation to the point where we had talked with [defendant] in the [A]rea; what he had told us.”

Thedford also told Summerville and Vucko that they were considering “the avenue that we may have to have a line-up.” Thedford told them defendant had said he would “think about” whether to take the lie detector test.

Officer John Summerville testified that on April 3, 1986, at about 4 p.m., he had his first contact with the Special case. He spoke with Thedford and Peterson, and with their supervisor. Summerville was told to “continue the investigation.” Thedford and Peterson told Summerville they wanted to run a lineup with defendant. They also told Summerville to see if defendant would take a lie detector test. He knew that earlier defendant had refused to take the test. “They also told us what he said, as far as his activities on that night.” Summer-ville had “no suspicions one way or the other” about whether defendant had been involved in a crime. In Summerville’s mind, defendant was not a suspect.

Summerville testified that he went into the interview room in which defendant sat and that the room was unlocked. He did not plan on “questioning” defendant. He simply repeated defendant’s earlier statements and asked if that was what defendant had told the other officers. He then asked whether defendant would take the lie detector test. At that point, defendant “said he would take the polygraph test.” Vucko then went to make a 5 p.m. appointment with the polygraph unit. On cross-examination, however, Summerville testified that his police report said defendant replied “that he might take the test.” Summerville explained: “It was like he would make his mind up when he got to the polygraph. That’s how he explained it to me.”

Summerville testified that if defendant had “tried to leave, I don’t know what I would have done. I would have had to ask the supervisor who had more knowledge of the case, because at that point, he was a witness as far as I knew, and we were just taking him for a polygraph.” And: “I would have gone to my supervisor, maybe ended up going to Felony Review. I didn’t know what his status was.” He wouldn’t have let defendant leave until he found “out what was going on.”

At 5 p.m., Summerville and Vucko drove defendant to 11th and State Street, where the polygraph section was located. They took the file with them, including all the reports and photographs. Summerville did not recall conversing with defendant in the car. Within a few minutes after entering the polygraph room, defendant refused to take the test. “He said he didn’t want to be a stool pigeon. [He said,] I can’t tell you who the shooter was, but I will point out the name because I saw it in your report.” At that point, Summerville did not give defendant his rights because he still did not think defendant was a suspect.

Summerville showed defendant the reports, which defendant flipped through, until he came to a certain page. Defendant pointed out the name of Robert Sanchez. “I asked how he knew Mr. Sanchez did the shooting, and he said I know because I was with him before, during and after the incident.” Summerville then placed defendant under arrest and advised him of his rights. Summerville agreed that his police report listed Thedford and Peterson as also being arresting officers, even though they were not present at 5 p.m.

The officers drove defendant back to Area 4. Defendant was still not handcuffed. At Area 4, defendant was put in an interview room, and the door was locked. At no time did defendant indicate that he did not want to speak with the officers or that he wished to leave the station. Summerville spoke with defendant from 5:30 p.m. until 5:45 p.m. He was again given his rights. At 10:30 p.m., defendant was given dinner and was told that the police had not yet found Sanchez. At 1 a.m., the officers telephoned felony review, and an assistant State’s Attorney arrived at 2 a.m. At 4:40 a.m., defendant gave a court-reported statement, after again being advised of his rights. A youth officer was present at that time. Defendant later read the statement, made corrections, and signed it.

The trial court found that no seizure was made before 5 p.m. Until that time, the police treated defendant as a witness. Defendant and his mother “consistently cooperated with the police to the point the mother even urged the defendant to take a lie detector test.” Neither defendant nor his mother made a “fuss about his leaving” the home with the police. The court stated, “There is absolutely no evidence to suggest anything but a very cordial relationship existed between *** the mother and the defendant and the police officers.” Where the officers’ stories differed from defendant’s, the court found it did not believe defendant.

The court emphasized that the police did not tell defendant he was under arrest; did not handcuff him; did not lock the interview room door; did not give him his rights; and did not call a juvenile officer. The court believed the officers’ testimony that defendant was free to leave. It was not unusual to check with a supervisor before permitting defendant to leave, because defendant might be a “minor in need of supervision” or a material witness.

The court refused to consider whether or not there was probable cause to arrest at 5 p.m. Thus, defendant filed a second motion to quash and suppress, raising the probable cause question. The court ruled that probable cause did not exist at the point that the police knew defendant fit the description of the second person; that defendant’s name came up as being in the area; that defendant refused to take a lie detector test; or that defendant pointed out the shooter’s name. However, probable cause to arrest existed at the point when defendant stated that he knew the shooter because he was with him before, during and after the murder. The police had probable cause to arrest defendant.

Defendant contends that the trial court erred in denying the motion to quash arrest and suppress evidence. Defendant maintains that he was taken into custody prior to 5 p.m. on April 3,1986. We agree.

A reviewing court will not disturb a ruling on a motion to suppress unless the decision was manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) An individual’s fourth amendment rights are violated where he is seized and questioned while in custody on less than probable cause. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) The test is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; People v. Reynolds, 94 Ill. 2d 160, 445 N.E.2d 766.

There are many factors which can be examined in determining whether a seizure has been made for fourth amendment purposes. An analysis of the relevant factors here indicates defendant was in fact seized prior to 5 p.m. when he was formally placed under arrest.

Defendant was not questioned briefly where he was found, in his home. (See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (defendant taken from a neighbor’s home).) This is true despite his mother’s inquiry as to why defendant could not be questioned at home. (See People v. Stofer (1989), 180 Ill. App. 3d 158, 167, 534 N.E.2d 1287.) Defendant was not told, at this point, that he could refuse to accompany the police. See People v. Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287.

Interestingly, defendant had refused to comply with the police officers’ earlier and repeated attempts to contact him. Thedford left his card and messages with several people, but defendant never responded voluntarily.

Defendant was then transported to the police station in a squad car, locked in the back of the car. (See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (defendant transported to police station in police car); People v. Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287; People v. Avery (1989), 180 Ill. App. 3d 146, 534 N.E.2d 1296.) He was not given the choice of arranging his own transportation to the station. Cf. People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103 (police gave defendant choice of driving down in his own car and defendant chose to ride with officers); People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635; People v. Ealy (1986), 146 Ill. App. 3d 557, 497 N.E.2d 101.

Defendant was placed in an interrogation room at the police station. (See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.) The only time defendant was let out of the interview room was when the police permitted him to talk to his mother on the telephone, in the hope she could convince him to take a polygraph, and when the police accompanied him to the polygraph location. This permitted a reasonable belief that defendant was to remain in the room while the police continued their investigation.

Defendant was never informed that he was free to leave. (See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, 438 N.E.2d 222.) Summerville testified he would have physically restrained defendant if he tried to leave, and Thedford testified he was not sure whether or not he would have restrained defendant. The State argues that Summerville was merely using prudence because he “had little knowledge of the case.” Summerville testified, however, that Thedford and Peterson told him everything defendant had said and told him to run a lineup and try for a lie detector test. Thedford testified he told Summerville about the “entire investigation.”

Summerville testified that Thedford told him they wanted to run a lineup with defendant, notwithstanding the fact the Caram had not been able to identify him from a photograph. Cf. People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103 (police placed defendant in a lineup, and kept him for an additional four hours, despite witness’ failure to identify him).

The officers testified that they did not believe the answers defendant gave to their questions. They left defendant alone in the interrogation room while they attempted to verify his alibi with his girlfriend. They repeatedly challenged defendant to take a lie detector test, even after he had refused and declared that he knew he did not have to take the test. (Cf. People v. Townes, 91 Ill. 2d 32, 435 N.E.2d 103 (unlawful arrest partially evidenced by fact that police asked defendant to take medical examination).) Thedford testified that he told Medina “we were still talking with her son and that I would have to see what would be the decision made on the investigation with regards to the third watch and what would happen with her son.” This does not sound like the description of a youth voluntarily present at the police station over an extended period of time. Next, still without defendant’s consent, the police transported him in a police car to a crime laboratory for a polygraph test.

In addition, Summerville listed Thedford and Peterson as arresting officers, although they were no longer working or present at 5 p.m., when defendant was formally arrested. See People v. Stofer, 180 Ill. App. 3d at 168.

We also consider defendant’s age, 16 years old, and his absence of extensive experience with the criminal system. See People v. Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287; People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635.

Moreover, no probable cause existed to justify defendant’s arrest at 1 p.m., at his home. (See People v. Stofer, 180 Ill. App. 3d 158, 534 N.E.2d 1287.) The police knew only that defendant, among at least six other young men, might have been in the area at the time of the shooting. They knew defendant fell into the broad description of one of the assailants. They knew gang signs were used, but also knew defendant was not a member of the gang. They knew defendant had not been identified by Caram. There was no probable cause for defendant’s arrest at that time.

The State also points out that defendant was not given his Miranda rights. The mere fact that the police did not term their actions a formal “arrest,” book defendant, and give him his rights, while relevant, does not determine whether or not a seizure was made. See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Cf People v. Townes, 91 Ill. 2d 32, 435 N.E.2d 103 (unlawful seizure partially indicated by fact that defendant was given Miranda warnings before each interview).

The trial court’s determination that a reasonable person in defendant’s situation would have considered himself free to go was manifestly erroneous. We hold that the court erred in finding no arrest was made at 1 p.m. when defendant was taken from his home.

The State asserts, however, that even if defendant was arrested or seized at 1 p.m., his subsequent confession was an act of free will unaffected by the initial illegality of his detention. The State maintains that sufficient attenuation exists to purge the statements made by defendant at 5 p.m., from the taint of his illegal seizure at 1 p.m. The determination that an illegal seizure occurred does not automatically require the exclusion of the subsequent confession. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The relevant question is whether the confession was obtained by exploitation of the illegality of the arrest. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The statement may be admitted only if it was not obtained by means sufficiently distinguishable to be purged of the primary taint. (Wong Sun v. United States (1963), 371 U.S. 471, 487-89, 9 L. Ed. 2d 441, 455-56, 83 S. Ct. 407, 417-18, quoted in People v. White (1987), 117 Ill. 2d 194, 222, 512 N.E.2d 677.) The key question is whether a causal connection exists between the illegal seizure at 1 p.m. and the statements made at 5 p.m. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

The trial court, however, was not presented with this issue. Thus, we remand for the trial court’s determination of whether sufficient attenuation exists to purge the statements made by defendant from the taint of his earlier seizure.

We find no merit in defendant’s contention that the trial court erred in denying his second motion to quash arrest and suppress evidence, which was based on the trial court’s finding that the police had probable cause to arrest defendant after his statements were made.

Probable cause for defendant’s arrest existed once defendant stated that Sanchez was the shooter and that defendant had been with Sanchez before, during and after the shooting. This information, in combination with other information the police had, was sufficient to give the officers probable cause to arrest defendant after his statements were made.

In summary, the finding of the circuit court of Cook County that defendant was not arrested before 5 p.m. is reversed, and the cause is remanded for a hearing as to whether there was sufficient attenuation to purge the statements from the taint of the earlier arrest. If the court finds such attenuation, it is directed to reinstate the judgment of conviction. If the court finds no such attenuation, it is directed to suppress the confession and to conduct further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

EGAN and RAKOWSKI, JJ., concur.