source: Caselaw Access Project

author: JUSTICE WELCH JUSTICE LEWIS,

license: Public Domain

text:
    NATHAN WADE, a Minor, by Gary Wade, his Father and Next Friend, Plaintiff-Appellant, v. ROBERT RICH et al., Defendants and Third-Party Plaintiffs-Appellees (Tammy Wade, Third-Party Defendant).
    Fifth District
    No. 5—91—0882
    Opinion filed August 17, 1993.

      LEWIS, J., dissenting.
    Brent D. Holmes, of Heller, Holmes, Hefner & Eberspacher, Ltd., of Mattoon, for appellant.
    John P. Ewart and P. Bartley Durham, both of Craig & Craig, of Mattoon, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Nathan Wade (Nathan or plaintiff), by his father and next friend, Gary Wade, appeals from the court’s order denying him a new trial as to damages only following a jury verdict in his favor, contending that the jury’s damages award was erroneous as it reflects that the jury disregarded an element of damages proven at trial. In his appeal, the plaintiff raises four issues: (1) that the court erred in denying his post-trial motion for a new trial as to damages only; (2) that the court erred in denying his motion for summary judgment at the beginning of trial and in denying his motion for directed verdict at the close of all the evidence; (3) that the court erred in denying plaintiff’s motion for leave to amend his complaint to add two additional counts; and (4) that the court erred in refusing his tendered jury instruction on damages arising in the future.

We first must set forth a brief statement of facts for a better understanding of this case, even though the jury found for the plaintiff and the defendant did not cross-appeal on the question of liability. Essentially, the evidence revealed that on April 28, 1987, Tammy Wade (Tammy) took her son Nathan, her daughter Danielle, and a six-month-old baby she was babysitting to visit her mother, Nancy Probst, at the defendant’s, Janet Rich’s, beauty salon. While leaving the beauty salon to go on to Tammy’s parents’ home, Nathan was bitten by the defendants’ dog, Odie, on his head and face. Nathan was taken to the emergency room of St. Anthony’s Memorial Hospital, where he received a total of 23 stitches on various lacerations resulting from the dog bite. At the time of the incident, Nathan was 18 months old and the dog Odie was a year and a half old.

Plaintiff’s complaint was brought under section 16 of the Animal Control Act. (Ill. Rev. Stat. 1989, ch. 8, par. 366.) Defendants filed an answer and a third-party complaint against Tammy Wade for contributory negligence. Following the filing of defendants’ answer, plaintiff moved for summary judgment, which was denied by the court. Plaintiff also sought to amend his complaint to add a count of common law negligence. The court allowed- his motion for leave to amend, but the amended complaint was dismissed pursuant to the defendants’ motion for failure to state a cause of action. Plaintiff again attempted to amend his complaint about a week before trial was to commence, and in his amended complaint, he reasserted his common law negligence action and also raised a count under the Premises Liability Act. (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.) The common law negligence count asserted in the second amended complaint was identical to the count of common law negligence raised in the first amended complaint. The court denied the plaintiff’s motion to amend his complaint.

Under the Animal Control Act, a plaintiff must show the following in order to prove liability: (1) that the defendants’ dog attacked the plaintiff without provocation; (2) that the defendants were the owners of the dog; (3) that the plaintiff’s conduct was peaceable; and (4) that the plaintiff was injured while in a place where he had a legal right to be. (Barr v. Groll (1991), 208 Ill. App. 3d 318, 567 N.E.2d 13.) At trial, the primary issue litigated before the jury was the issue of provocation. Defendants admitted in their answer and at trial that they owned the dog which bit Nathan, that Nathan’s conduct was peaceable, and that Nathan was in a place where he had a legal right to be.

The evidence regarding provocation was conflicting and consisted of the following: Tammy testified that when she was preparing to leave the defendants’ beauty shop, she was carrying the baby on her right hip, and that Nathan was standing at the latched storm door, with his right hand on the door frame and his left hand on the storm door. Odie was lying in the sun on a concrete pad outside of the storm door. Odie was positioned so that his head was away from the door, but the door would swing over his legs as the door opened. Tammy unlatched the door with her left hand and propped the door open with her left foot, as the door had an automatic closer on it. She took Nathan’s hand and helped him down the 4- to 6-inch step to the concrete pad, then she turned to say something to her mother just before going out the door. Tammy stated she saw a “blur” out of the corner of her eye, and the next thing she knew, Nathan was lying on his back on the concrete pad with Odie on top of him and Odie was biting Nathan. Tammy handed the baby she was holding to defendant Janet Rich, grabbed the dog, and threw it off of her son, who was bleeding about the head and face. Tammy’s mother then drove Tammy, Nathan, and Danielle to the emergency room at the hospital where the doctor treated his injuries. Defendant Janet Rich kept the baby.

Defendant Janet Rich’s version of the incident was that, just before Tammy opened the storm door, Nathan had been leaning against the door and had both of his hands on the glass. Janet stated that Tammy had the baby on her left hip, and when she opened the door, Nathan lost his balance and fell out of the door. When Nathan fell, he fell into the “middle” of Odie, who was asleep in the sun. Janet saw Odie’s head and back legs curl up around Nathan, and Nathan “flopped” over. Janet did not actually see Odie bite Nathan, but she saw Odie’s head over Nathan’s. According to Janet, Odie then stood “back and looked at Nathan like he was startled.”

Nancy Probst, Tammy’s mother and Nathan’s grandmother, testified that she did not see Odie at the foot of the door. Nancy noticed that, before Tammy opened the storm door, Nathan had one hand on the door and the other hand on the door frame. Tammy opened the door slowly and had control over the door. Nathan pushed on the door for balance. Nancy turned away at that time to fill out some raffle tickets that Janet was selling for her son and, therefore, did not see the incident. The next thing that Nancy knew, Tammy and Nathan were screaming. Nancy was “fairly certain” that Janet went out and got Odie off of Nathan.

In addition to the evidence on provocation, the plaintiff also presented evidence on damages. Tammy testified that after Odie bit Nathan, Nathan was screaming and he continued to scream until he reached the hospital. She was unable to calm him down due to the pain. At the hospital, Tammy was not allowed to stay with Nathan while he was being sutured, and an hour later, when Nathan was brought out to her, Nathan was sedated. According to Tammy, Nathan’s face was swollen in addition to being sutured. That evening, Nathan wanted to be held by his mother, which she did. Tammy had received orders from the doctor to wake Nathan that night every two hours to check for concussion, which she also did.

The next day, Nathan’s sedative had worn off, and he was in pain and “cranky.” Tammy spent the day holding him and rocking him. Although Nathan generally liked to eat, he had very little appetite that day. Tammy observed that Nathan acted like he had a headache, and Nathan would “poke” at his stitches like he was trying to determine where the pain was coming from. Tammy stated that Nathan would lay his head on her shoulder and cry. That evening, Nathan ate a little, but he subsequently vomited three to four times. Because she was concerned about concussion, Tammy took Nathan to the emergency room. Nathan was again examined at the hospital and released, and Tammy was advised as to the other symptoms to watch for.

Tammy testified that the second day after the incident, Nathan was about the same; however, he did not stay on her lap as much. Nathan also moved around better. Tammy took Nathan for followup care to Dr. Foster a couple of days later. A colleague of Dr. Foster’s, Dr. Bristow, removed Nathan’s stitches a few days after the visit to Dr. Foster. Tammy stated that the removal of the stitches was painful for Nathan and that he cried and screamed when this was done.

Tammy took Nathan to see Dr. Chiu, an eye specialist, at the request of Drs. Foster and Bristow. The doctors suggested this because of the bruising around Nathan’s eyes. Dr. Chiu froze Nathan’s pupils and looked for signs of visual .damage, but he found none. Dr. Chiu did a followup examination 9 to 12 months later. It did not appear that Nathan had any problem with his eyes.

Tammy explained that even after Nathan physically healed, he did not sleep well. Before the incident with Odie, Nathan slept through the night, but after Odie’s attack, Nathan would wake up in the middle of the night sweating and whimpering; however, these episodes have become less frequent as time passes. Nathan also did not want to be very far away from Tammy for some time after the incident.

Tammy stated that the scars on Nathan’s face are noticeable but have faded well with time. Nathan has a scar across his nose and an indentation in his cheek. The. largest scar from the incident runs from the top of Nathan’s forehead into the hairline and is concealed by his hair, as long as his hair is kept long.

Tammy, her husband, Gary, and her father testified that Nathan has been afraid of dogs since the incident, but they have gradually introduced him to other dogs and have decreased this fear. Now, just large dogs scare him.

A videotaped evidence deposition of Dr. Mamerto Guinto was presented to the jury. Dr. Guinto testified that he was the emergency room physician who treated Nathan on April 28, 1987. When the doctor examined Nathan, he was “quite irritable, crying, with multiple lacerations.” Altogether, Nathan had seven cuts. The largest of the lacerations was four to five inches long and was at the top left of Nathan’s forehead, and this cut required 13 stitches. Another laceration required three stitches, two of the lacerations required two stitches, and the remaining three cuts required one stitch each.

According to the doctor, Nathan’s injuries caused him pain and suffering. After suturing Nathan’s cuts, Dr. Guinto prescribed an antibiotic ointment and an antibiotic medicine, which is always done for wounds due to bites. Dr. Guinto also gave Tammy precautionary instructions for a possible head injury. Dr. Guinto testified that Nathan’s wounds would produce scars and that the scars would be permanent; however, Dr. Guinto had not seen Nathan since that day in the emergency room and did not know whether Nathan’s scars were visible. In addition to Dr. Guinto’s testimony, Nathan, who was five years old at the time of trial, was paraded before each row of jurors so that they might observe firsthand the presence, or lack, of scarring from his injuries.

The medical bills incurred as a result of Nathan’s treatment were introduced into evidence. These bills are not in the record presented on appeal, but in defendants’ closing argument, counsel enumerated the medical expenses as $65 for Dr. Chiu, $28 for the Marshall Clinic (Drs. Foster and Bristow), and $226.64 for St. Anthony’s Memorial Hospital, for a total of $319.64. In closing argument, plaintiff’s attorney argued that, if the jury found defendants liable, the jury was required to consider Nathan’s pain and suffering, the emotional trauma of Nathan, his disfigurement, and his actual medical expenses in determining his damages. Plaintiff’s counsel suggested a figure of $25,000 as being an adequate award for Nathan’s damages. In defendants’ closing argument, defense counsel asserted that it was defendants’ position that they were not liable, but, if the jury disagreed and found the defendants liable, he suggested that $3,000 to $6,000 was an adequate damages award.

Following trial, the jury found that the defendants were liable and awarded the plaintiff damages in the amount of $319.64, a figure which exactly matched Nathan’s medical expenses. The jury also found in favor of third-party defendant Tammy Wade on defendants’ third-party complaint against her for contributory negligence. The court entered judgment on the jury’s verdicts. Subsequently, plaintiff filed a post-trial motion in which he asserted that the jury’s verdict was against the manifest weight of the evidence, since it appeared that the jury failed to consider plaintiff’s unrebutted evidence of specific elements of damages, i.e., pain and suffering, as well as disfigurement. Plaintiff asked that the court order a new trial on damages only as his relief. Plaintiff also asserted in his post-trial motion that the court erred in refusing his tendered jury instruction on damages arising in the future. The court denied the plaintiff’s post-trial motion, and this appeal ensued.

The first issue for consideration is whether the court erred in refusing plaintiff a new trial on damages only. The plaintiff argues that the jury’s award of damages was against the manifest weight of the evidence since it obviously only awarded medical expenses, thereby disregarding the plaintiff’s unrebutted proof of pain and suffering and of disfigurement, both elements of damages. The plaintiff asserts that the court, in its order, found that the jury’s failure to award damages for pain and suffering was against the manifest weight of the evidence but still denied his motion for a new trial as to damages only, clearly an abuse of the court’s discretion. We agree.

Generally, a decision as to whether to grant a new trial is a matter left to the sound discretion of the court, and the court’s determination will not be overturned on review absent an abuse of discretion. (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141.) However, a jury’s verdict may be set aside and a new trial ordered where the amount of damages is palpably inadequate or against the manifest weight of the evidence or where the jury has clearly disregarded a proven element of damages. (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141.) The standard for granting a new trial on damages alone is that it is appropriate to grant such a request where (1) a jury’s verdict on liability is amply supported by the evidence, (2) the questions of liability and damages are so separate and distinct that if a trial is limited to the question of damages only, the defendant will not be treated unfairly, and (3) the record does not suggest that the jury reached a compromise verdict or that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability. Burnham v. Lewis (1991), 217 Ill. App. 3d 752, 577 N.E.2d 922.

In the case sub judice, the trial judge took the time to write an excellent order clearly setting forth his reasoning, so it bears repeating:

“The Plaintiff filed a motion for a new trial on the issue of damages only, alleging the verdict was for medical expenses only and ignored uncontradicted evidence of pain and suffering and disfigurement. The Third Party Plaintiffs filed a motion for new trial alleging the Third Party verdict was against the manifest weight of the evidence but indicated that the Court could deny that motion in event the Court denied the Plaintiff’s post trial motion [sic].
The Defendants claim: 1.) there is no inconsistency in the verdict; and 2.) in the alternative, if the Court finds the verdict to be inconsistent with the evidence, that the issue of liability was vigorously contested, the verdict was the result of a compromise and it would be unfair to the Defendants to re-litigate the issue of damage only. Each side agrees that the Court does not have before it a motion for new trial on all issues.
The Court, having considered the evidence at the trial, the law applicable, and the arguments of counsel finds:
1. The verdict is against the manifest weight of the evidence. While the verdict form requested by the Plaintiff was not itemized, it was clear from the evidence and arguments that recovery was sought for a.) medical bills; b.) pain and suffering and; c.) disfigurements. The verdict reflected the exact amount of the medical bills and therefore presumably nothing for pain and suffering or disfigurements. The issue of disfigurement was disputed. At the request of both parties, the Plaintiff walked slowly in front of each row of jurors so they could personally observe the scarring or lack thereof. The Court cannot, as a matter of law[,] state that the jury improperly ignored disfigurement. The jury certainly could have decided, based on the successful recovery, that the scarring, if any, that existed was so minimal so as to not require compensation. On the other hand, the testimony regarding pain and suffering was unrebutted. The jury was not present at the time of the incident to observe first hand the pain and sufferingf ] (as they could the disfigurement or lack thereof). The photographs admitted into evidence display lacerations requiring numerous sutures. The Court rules that not compensating the Plaintiff for pain and suffering was against the manifest weight of the evidence.
2. *** [Liability was a close issue. Provocation as a defense was' raised and argued. In fact, the bulk of the case in chief revolved around the issue of provocation. The Court cannot state that the evidence of liability was so clear that there is no issue on this point -for a second jury to try. It appears that the jury ignored a proven element of damages as to arrive at a compromised verdict between liability and damages. It would be fundamentally unfair under these circumstances to order a new trial on damages only.
There being no motion pending for a new trial on all issues, the motion for a new trial on damages only is denied.”

Thus, while the court did, as plaintiff asserts, find that the jury’s award for damages as to pain and suffering was against the manifest weight of the evidence, so, too, did the court find that the jury’s determination was a compromised verdict between the liability and the damages.

We agree with the trial court that the jury’s award of damages is against the manifest weight of the evidence in that the jury ignored or disregarded unrebutted evidence of the plaintiff’s pain and suffering. However, we do not agree with the trial court that the jury’s verdict represents a compromise on the issue of liability.

We find that the issue of liability is clear and that the jury’s finding of liability is amply supported by the evidence and is justified. The only disputed fact as to liability was the presence or absence of provocation on the part of plaintiff. At trial, defendant testified that plaintiff fell out the door and onto the dog. Plaintiff’s mother and grandmother, who were present during the attack, testified that they did not actually see the events immediately prior to the attack. Both had turned their heads the instant before the attack and looked back after the attack had begun. The evidence indicates, therefore, that the plaintiff accidentally fell onto the dog, which responded by biting the plaintiff on and about the head.

It is clear that an unintentional or accidental act can constitute provocation within the meaning of section 16 of the Animal Control Act. (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268.) However, it is also clear that where the acts which stimulated or excited the dog were unintentional, as they were in the case before us, no provocation can be said to exist within the meaning of the statute if the acts cause the dog to attack the plaintiff viciously and the vicious attack is out of all proportion to the unintentional acts involved. (Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 713, 561 N.E.2d 111, 115.) Thus, in Nelson, the 21/2-year-old plaintiff accidentally stepped or fell on the tail of a dog which was chewing a bone. The dog reacted by scratching the plaintiff’s eye. This court held that that case did not involve a vicious attack which was out of proportion to the unintentional acts involved and that provocation existed. In Robinson, the four-year-old plaintiff began screaming when defendant’s dog began barking. The dog responded by attacking plaintiff viciously, tearing her lip and inflicting puncture wounds and scratches on her face, neck, and throat. In that case, this court held that, while plaintiff’s scream triggered the attack on her by the dog, that scream could not be regarded as having been sufficient to account for the savagery of the dog’s assault. Thus, as a matter of law, no provocation could be said to have existed.

In the instant case, the 18-month-old plaintiff accidentally fell onto the middle of the dog, which was sleeping in the sun. The dog responded by repeatedly biting plaintiff on and about the head and face, resulting in seven lacerations, the largest one being four to five inches long. Plaintiff required a total of 23 stitches. The viciousness of the dog’s attack on plaintiff, which was out of proportion to the unintentional act committed by plaintiff, clearly establishes the defendants’ liability for plaintiff’s damages. Thus, the jury’s finding of liability is amply supported by the evidence.

Furthermore, the questions of liability and damages are so separate and distinct in the instant case that a trial limited to the question of damages only would not be unfair to defendant. The issues of liability and damages are not intertwined in the instant case, and no prejudice would result to defendant as a result of a new trial on the issue of damages only.

Finally, we find nothing in the record suggesting that the jury reached a compromise verdict. To test whether a verdict resulted from a compromise on the question of liability, it must be determined if the verdict on the issue of liability was supported by the evidence. (Sommer v. City of Taylorville (1978), 59 Ill. App. 3d 765, 767, 375 N.E.2d 1031, 1032.) The trial court bases its finding of a compromise verdict on its view that the issue of liability was a close one. As we have already stated, we do not share the trial court’s view on this point. Instead, we think that liability was clearly established and that the verdict on the issue of liability is amply supported by the evidence. Accordingly, we do not agree with the trial court’s finding of a compromised verdict. Instead, we find that the jury erroneously ignored the proof of plaintiff’s pain and suffering and its verdict with respect to damages is against the manifest weight of the evidence. We therefore reverse the judgment of the trial court denying plaintiff’s post-trial motion for a new trial on the issue of damages only and remand this cause to the trial court for a new trial on the issue of damages.

The plaintiff’s second and third issues raised on appeal present similar resolutions, and thus, we will consider them together. The second issue raised by the plaintiff is that the court erred in denying his motion for summary judgment before trial and in denying his motion for directed verdict at the close of all the evidence. The third issue raised by the plaintiff is that the court erred in denying his motion for leave to amend his complaint to add a count of common law negligence and a count under the Premises Liability Act. Both of these issues have been waived by the plaintiff for failure to raise them in his post-trial motion. (Thacker v. U N R Industries, Inc. (1991), 213 Ill. App. 3d 38, 572 N.E.2d 341, aff’d (1992), 151 Ill. 2d 343, 603 N.E.2d 449.) As the appellate court in Thacker pointed out, Supreme Court Rule 366(b)(2)(iii) (134 Ill. 2d R. 366(b)(2)(iii)) requires that a claim of error be preserved by inclusion in a post-trial motion and that few, if any, exceptions to the rule are permitted. (Thacker v. U N R Industries, Inc. (1991), 213 Ill. App. 3d 38, 572 N.E.2d 341.) (The supreme court in Thacker did find an exception to the rule, although it was not because defendant failed to include a claim of error in his post-trial motion as to the denial of judgment n.o.v.; rather, the court felt that justice required it to consider defendant’s argument even though defendant did not technically meet the requirement of a little-known rule that defendant had to object specifically to a special finding of fact by the jury in order to preserve his objection to the denial of the judgment n.o.v. (Thacker v. U N R Industries, Inc. (1992), 151 Ill. 2d 343, 603 N.E.2d 449).)

Plaintiff cites cases that hold that a party does not have to file a post-trial motion in order to preserve the granting of a directed verdict. (See Larson v. Harris (1966), 77 Ill. App. 2d 430, 222 N.E.2d 566, aff’d (1967), 38 Ill. 2d 436, 231 N.E.2d 421; Hladish v. Whitman (1989), 192 Ill. App. 3d 561, 549 N.E.2d 5.) The reason that an objection to the granting of a directed verdict does not have to be raised in a post-trial motion under Supreme Court Rule 366 (b)(2)(iii) is that the rule does not apply in nonjury trials and thus when the verdict is directed by the court the jury trial in effect becomes a nonjury trial.

We see no reason to encourage plaintiffs and defendants not to include denials of their motions of a directed verdict or summary judgment in their post-trial motions, and in fact, there are good reasons to require strict adherence to the rule that all objections must be raised in a post-trial motion or else those objections are waived. Since plaintiff did not include these two issues in his post-trial motion, we decline to consider them.

The plaintiff’s issue on denial of his motion for summary judgment and denial of his motion for directed verdict need not be considered for an additional reason. It is well established that a denial of a motion for summary judgment is not subject to review on appeal after a trial has been held, as any error in the denial merges into the subsequent judgment. (Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 572 N.E.2d 439.) Further, even if we could reverse the court’s ruling, which we cannot, it would have no technical effect, as the plaintiff would be in the same position as he is following the jury verdict, with a favorable verdict on liability. This same reasoning applies equally to the plaintiff’s issue on denial of his motion for a directed verdict as to liability. A reversal would have no technical effect, and we would be ruling for the sake of ruling only.

Just as there were additional reasons not to consider the plaintiff’s second issue, there is likewise an additional reason not to consider his issue that the court erred in denying his motion for leave to amend his complaint. At this point in time, the plaintiff’s issue on his motion to amend his complaint is moot. Questions which arise from a trial court’s order “are moot when, because of developments following issuance of that order, reversal of the order can have no practical effect on the controversy.” (In re Marriage of Holem (1987), 153 Ill. App. 3d 1095, 1098, 506 N.E.2d 739, 741.) Because of the plaintiff’s successful outcome on the liability issue under his cause of action under the Animal Control Act, a reversal on the court’s ruling on his motion for leave to amend would have no practical effect on the controversy and is, therefore, moot.

The plaintiff’s last issue presented for review is that the court erred in refusing his tendered instruction on permanency of the plaintiff’s injuries. The instruction tendered by the plaintiff stated as follows:

“If you find that the plaintiff is entitled to damages arising in the future because of injuries, you must determine the amount of these damages which will arise in the future. If these damages are permanent in nature, then in computing these damages you may consider how long the plaintiff is likely to live.”

This instruction is identical to Illinois Pattern Jury Instruction No. 34.01. (Illinois Pattern Jury Instructions, Civil, No. 34.01 (3d ed. 1992).) Plaintiff tendered this instruction because Dr. Quinto testified that plaintiff’s scars from his injuries would be permanent. However, because we have ordered a new trial on the issue of damages, and because the proof presented at this new trial may differ from that presented at the previous trial, we decline to comment on this final issue raised by plaintiff on appeal.

For the foregoing reasons, the judgment of the circuit court of Effingham County denying plaintiff’s post-trial motion for a new trial on the issue of damages only is reversed, and this cause is remanded to the trial court for a new trial on the issue of damages.

Reversed and remanded.

RARICK, J., concurs;

JUSTICE LEWIS,

dissenting:

Chaucer wrote in Troüus and Ckriseyde:

“It is nought good a sleeping hound to wake.” Shakespeare gave the same admonition in Henry IV and Henry VIII. Scott, Dickens, and many others made similar warnings, so that now Webster simply sets out that “let sleeping dogs lie” is a colloquial expression and does not give any source. Webster’s New World Dictionary 403 (3d College ed. 1988).

I do not wish to appear to be unsympathetic to the plaintiff and his mother, as I have personally witnessed dogs biting small children and the terror that such an event causes the parent and the child. If it were my child, I would be ready to shoot the dog. The point I am making is, however, that for centuries we have known that dogs bite when they are suddenly awakened from sleep. We also know that whenever you commingle small children and dogs, one or the other is going to be hurt. The legislators and jurors do not live in a vacuum; they are aware of the nature of dogs and children.

The admonition of Chaucer should be heeded by this court, as we are entering an area that should best be left to the legislature and juries. The legislature is well aware of how many people own dogs and how emotionally attached they become to their dogs. (As State’s Attorney, I filed charges against a woman who had moved to my county from Chicago and who had misappropriated a neighbor’s good rabbit dog as a pet for her children. The colorful trial judge, after patiently advising defendant that the constitution does not provide “dognappers and barn burners” with the right to select the tree from whence they shall be hanged, told defendant: “Ma’am let me give you a little advice. Down here in Southern Illinois you don’t mess with people’s dogs or people’s children. And in that order!” I have paused to reflect as to whether my reasoning in this case is in accordance with the law or whether it is in accordance with my heritage.) If the legislature desires to impose absolute liability on dog owners, then it should do so. The courts have no business carving out exceptions in the Animal Control Act to meet the judges’ personal opinions.

Isn’t it strange that in this appellate district we have had juries in St. Clair, Saline, Washington, and now Effingham Counties (see Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268; Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 561 N.E.2d 111; Smith v. Pitchford (1991), 219 Ill. App. 3d 152, 579 N.E.2d 24) that all ruled in favor of the dog owner as to the issue of provocation but were then reversed by this court? Possibly, we judges, because of our education and elevated position, know something about how dogs think that the 48 jurors chosen at random do not?

This court has entered the canine-psychology field. We apparently are going to decide how a reasonable dog should respond to unintentional provocation by a child as a matter of law. Normally, we let juries decide facts and what responses a reasonable person would make to certain stimuli. The majority opinion decides the factual situation, i.e., that a sleeping dog should not repeatedly bite a child if it is suddenly awakened by the child falling or stepping on it. I realize that jurors may not be qualified to decide what is a proper reaction by a dog in a given situation, but as much as I hate to admit it, most people would trust the collective wisdom of the jury more than they would trust the collective wisdom of this court! Juries decide many issues in very complex fields in which they are not knowledgeable, and we as judges are happy that they do so. Surely the dog bite cases are another area in which juries should be used in deciding whether the dog was provoked and whether the dog’s response to the provocation was to be expected. If we as judges are going to shoulder the burden of deciding as a matter of law what the proper response of a dog should be to a certain provocation, then we will be deciding whether as a matter of law one bite is all right but three bites are too many, or. 10 stitches are okay but 23 stitches are not. What happens if there is only one bite but the child loses an eye or a finger? Is the defendant not liable for the damages caused by the dog’s first bite as a matter of law but liable for all subsequent bites? When this case is retried on damages only, will the defendant be allowed to show that the largest laceration of four to five inches was caused by the dog’s first bite, which may be a legitimate response to the provocation? How can the courts make a factual determination as a matter of law as to what response or responses of a dog are “out of proportion to the unintentional act committed by plaintiff?”

There may be some cases, such as in Robinson and Smith, in which a court can legitimately say that the stimuli do not amount to provocation. In battery cases, the courts hold that even though the victim makes unpropitious comments about the defendant’s mother, those comments, as provoking as they may be, do not justify a punch in the nose. So, screaming by a child or saying a dog’s name while petting the dog is not going to be recognized as a matter of law as provocation of a dog. The majority seems to recognize that falling on a dog while it is asleep is provocation, as unintentional as it may be. Why the majority would then wish to shoulder the burden of determining an appropriate response by the dog is beyond me. If a child fell or jumped on a sleeping human, would we be surprised if the human lashed out with his or her fists and injured the child severely? Why should a dog be held to a higher standard than a supposedly more intelligent animal? If the legislature wishes to hold the dog to such a high standard, then all the legislature has to do is pass a law. Meanwhile, let’s let the jury perform its function of determining what would be an appropriate response (i.e., when is the dog ceasing to respond to the provocation and merely being vicious) and the liability of the defendant.

I also disagree with the majority’s view that the verdict was not a compromise verdict. The defense attorney clearly told the jury that $3,000 to $6,000 would be an adequate award. Both attorneys talked about pain and suffering, emotional trauma, and disfigurement in their arguments to the jury. There is no way that the jury “ignored the proof of plaintiff’s pain and suffering.”

We appellate justices are constantly complaining about trial judges not telling us what happened at the trial or why they ruled in such a manner. In this case, the trial judge did an excellent job in setting out what had occurred and why he felt boxed in by plaintiff’s request for a new trial on damages only. How can we sit in Mt. Vernon a year later and decide that we know better than Judge Brummer what was going on in Effingham County? Trial judges have ways and means of knowing many things that are not on the record, and even if something occurs on the record, the event may be different from what it appears to be in the transcript. These are just two reasons why the appellate courts defer to the trial judge’s judgment in many instances.

Judge Brummer indicated that he wished that he could grant a new trial on all the issues, but he was boxed in by plaintiff’s request for a new trial on damages only. The plaintiff’s attorney wisely recognizes that a second trial most often is not as good as the first trial from a plaintiff’s viewpoint. He now knows that juries are not very sympathetic to victims in dog bite cases. Our system is not perfect, but the legislature and the jury have spoken. I would like to award a lot of money to the victim in this case as compensation for his injury, but to do so would mean substituting my judgment for the legislature’s and the jury’s judgments. I am not prepared to become the supreme lawmaker.

To award damages for an injury there normally should be a wrong or some fault on the part of defendant, not just deep pockets. The owners were not accused of negligence for allowing the dog to sleep outside the entrance door, of strict liability to a business invitee, or of strict liability for owning a vicious dog. They did nothing wrong under the issue in this case other than mere ownership of a dog. For some reason, we feel that the owner should be held responsible for the acts of his dog because we think of the dog as being more human and as an extension or representative of the owner as opposed to inanimate property. There are many instances, however, where an owner of property is not held responsible, and we are not upset by such a result merely because the property was in some way involved in the injury (e.g., the child could have fallen down some stairs or off a tree branch without liability being imposed on the owner of the property). If damages are to be awarded under the Animal Control Act because of mere ownership, then the legislature, and not this court, should say so.

In considering the effect of the majority opinion, I am reminded of the old Southern Illinois expression about things that will not work, “This dog don’t hunt.”

Accordingly, I would affirm the trial court.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD L. SCOTT, JR., Defendant-Appellee.
    Second District
    No. 2—91—1264
    Opinion filed August 18, 1993.

      Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

The State appeals from the circuit court’s order granting defendant’s petition to rescind the statutory summary suspension of his driver’s license and his motion to quash his arrest and suppress evidence. We reverse and remand.

Defendant, Richard L. Scott, Jr., was charged by complaint with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11-501(a)(2) (now 625 ILCS 5/11-501(a)(2) (West 1992))) and driving while his license was revoked (Ill. Rev. Stat. 1991, ch. 951/2, par. 6-303(a) (now 625 ILCS 5/6-303(a) (West 1992))). The complaints alleged that the offenses occurred on March 8, 1991, at approximately 10 p.m. The officer’s sworn report shows that defendant was served with a notice of the summary suspension of his license for refusing to submit to or complete a blood-alcohol test.

Defendant filed a petition to rescind the statutory summary suspension of his driver’s license on the ground that the officer did not have reasonable grounds to believe he was driving or in actual physical control of a motor vehicle while under the influence of alcohol. He also filed a motion to quash the arrest and suppress evidence on the basis that the officer did not have probable cause to arrest him.

The petition and motion were initially denied on June 14, 1991. Defendant filed a motion to reconsider on July 9, 1991, and the court subsequently granted defendant’s petition and motion in its order of October 4, 1991. The State has timely appealed pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)) and has filed a certificate of impairment.

On appeal, the State argues that the decision of the trial court was manifestly erroneous because (1) the officer’s decision to arrest was not based upon an impermissible stop or detention since defendant voluntarily approached the officer; and (2) the officer had probable cause to arrest defendant based on his observation of the totality of the circumstances and he did not rely solely on a citizen-informant’s tip in determining probable cause to arrest. Defendant has not filed an appellee’s brief, and we therefore entertain this appeal pursuant to the guidelines set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The record discloses that, on June 14, 1991, the trial court conducted a hearing on defendant’s petition and motion, and the court granted the State’s motion for a directed finding. Defendant moved for reconsideration. After the trial court agreed to reconsider its decision, the court conducted a hearing on the State’s case in chief and rendered a decision in defendant’s favor on October 4, 1991. A bystander’s report summarizing the evidence and certified by the trial court was submitted with the record on appeal instead of a transcript of the proceedings.

The bystander’s report states that Officer James Spartz and Sergeant James Kayes were officers in the De Kalb police department at the time in question. Spartz and Kayes were at the parking lot of Mc-Cabe’s Tavern, where they were investigating an unrelated incident. At the parking lot, the officers were approached by an anonymous citizen who told them that the citizen had witnessed a person who appeared very intoxicated get into a brown pickup truck; the citizen told them the direction in which the truck was traveling. Kayes, who was seated in a squad car, testified that he proceeded in the direction given him by the citizen and saw a brown pickup truck, among other vehicles, about three blocks ahead of him. As Kayes caught up with the brown pickup truck which he had seen from the street, he observed the truck turn into a private driveway. Kayes did not see the driver commit any violation of any statutes or ordinances as he caught up to the brown truck traveling on the street.

When Kayes pulled into the driveway behind the brown pickup truck, the driver of the truck staggered out of the truck as he walked toward the squad car. Kayes identified defendant as the driver of the truck. Kayes testified that defendant swayed while he was standing, had an odor of alcohol on his breath, and had slurred speech and bloodshot eyes. Defendant refused to perform any field sobriety tests. Kayes then placed defendant under arrest for driving under the influence of alcohol and driving while his license was revoked. It was stipulated that there were no outstanding warrants for defendant.

Defendant argued that there was no way that the officer could tell whether the anonymous informant had provided credible or reliable information. Defendant noted that the officers did not get the name of the citizen and did not ascertain how the citizen gained his information that defendant was under the influence of alcohol.

The State pointed out that, by the time Kayes had caught up with the brown pickup truck, the vehicle had already stopped and the driver had exited. The State argued that no stop had been effected and Kayes continued his investigation when he saw defendant stagger toward the squad car.

In its order, the trial court stated these findings of fact as the basis for the “stop.” The officers had been approached in the parking lot by an unidentified individual who told them that he witnessed someone who was very intoxicated driving a brown pickup truck. The officers did not know who the individual was or whether the information provided was credible or reliable. Kayes proceeded north on Fourth Street and observed' three vehicles heading north, including a brown pickup approximately three blocks away. Kayes observed the pickup proceed for a short duration after which it turned into a private driveway. Neither officer observed defendant violate any statute or ordinance, and there were no outstanding warrants for defendant. The court concluded that there was insufficient evidence to show the reliability of the anonymous tip and the police investigation did not corroborate the information provided by the tipster. The court therefore ordered that the statutory summary suspension be rescinded, that the arrest of defendant be quashed, and any evidence obtained thereby be suppressed. After reviewing the evidence in the record, we believe the trial court’s decision was manifestly erroneous.

As the movant in a suppression hearing, the defendant has the burden of proof to establish that a search or seizure was unlawful or impermissible, that is, the defendant must make a prima facie case that the police lacked probable cause or reasonable grounds to arrest the defendant (People v. Broge (1987), 159 Ill. App. 3d 127, 140), or that the officer had no reasonable and articulable suspicion of criminal activity to warrant an investigative stop (People v. Repp (1988), 165 Ill. App. 3d 90, 94). Once the defendant has shown that he was doing nothing unusual to justify the intrusion by the police at the time of the stop or arrest, the burden of going forward with the evidence to justify the intrusion shifts to the State. See Broge, 159 Ill. App. 3d at 140.

Similarly, in a summary suspension hearing, which is a civil proceeding, it is the motorist-petitioner who bears the burden of establishing a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 337-38.) He must show by a preponderance of the evidence that he is entitled to rescission. (People v. Kurtz (1988), 171 Ill. App. 3d 1068, 1070.) Thus, in such a hearing, the motorist-petitioner (defendant) acts in the role of plaintiff, and if the court finds that the motorist has presented a prima facie case by credible evidence, the burden of going forward shifts to the State. Orth, 124 Ill. 2d at 341; Kurtz, 171 Ill. App. 3d at 1070.

In a summary suspension hearing, whether the defendant has met his burden of proof is a question of fact for the trial court, and its determination will not be overturned on review unless it is palpably against the manifest weight of the evidence, that is, unless an opposite conclusion is clearly evident from the record (Kurtz, 171 Ill. App. 3d at 1070) or the court’s findings are manifestly erroneous (People v. Graney (1992), 234 Ill. App. 3d 497, 503; People v. Safiran (1992), 229 Ill. App. 3d 639, 641). A similar “manifestly erroneous” standard applies in reviewing a trial court’s finding on a motion to quash or to suppress. (People v. Villarreal (1992), 152 Ill. 2d 368, 373; People v. Houlihan (1988), 167 Ill. App. 3d 638, 642.) Because these standards are sufficiently similar, we will consider both rulings together.

A warrantless arrest may be made if the arrest is supported by probable cause, that is, when the totality of the facts and circumstances known to the officer are such that a reasonable prudent person would believe that the suspect is committing or has committed a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525.) Whether probable cause is present is governed by commonsense considerations, and the calculation concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Montgomery, 112 Ill. 2d at 525.

An officer may make a valid investigatory stop based on “reasonable suspicion” and without probable cause to arrest (Houlihan, 167 Ill. App. 3d at 642), provided that the officer’s decision is based on specific and articulable facts and he reasonably infers, from all the facts and circumstances known to him at the time he initiated the stop, that the defendant committed, was committing, or was about to commit an offense. People v. Crest (1989), 188 Ill. App. 3d 768, 772-73.

The test for reasonable suspicion is a less exacting one than for probable cause to arrest. (Repp, 165 Ill. App. 3d at 94.) A reasonable suspicion can arise even when no violation of the law has been witnessed so long as the officer points to specific, articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion — such as when he observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot. Safiran, 229 Ill. App. 3d at 641; People v. Hardy (1986), 142 Ill. App. 3d 108, 113.

In the case at bar, the thrust of the State’s argument is that the court erroneously focused on the alleged lack of reliability in the citizen-informant’s tip and the officer thus effectuated an impermissible stop and subsequent arrest without probable cause. The State points out that the officer did not rely solely on the citizen’s tip and the additional information that went into the officer’s decision to arrest was not the result of any improper detention. We first determine whether there was an impermissible stop or, indeed, whether there was any stop at all. Second, we determine whether the officer had probable cause to make a warrantless arrest of defendant.

Ordinarily, a reasonable ground to stop a suspect may be based on an informant’s tip where it is clear that some indicia of the tip’s reliability are present which justify the investigative stop. (City of Lake Forest v. Dugan (1990), 206 Ill. App. 3d 552, 555, citing Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66.) However, when the reliability of the information obtained from an anonymous tip cannot be readily corroborated and there are no other suspicious circumstances known to the officer, a stop may be deemed unjustified. See People v. Pantoja (1989), 184 Ill. App. 3d 671; People v. Moraca (1984), 124 Ill. App. 3d 561; cf. In re J.J. (1989), 183 Ill. App. 3d 381, 387 (where citizen’s in-person complaint was immediately verifiable at the scene, reliability of citizen’s tip would not be as vigorously scrutinized as would an anonymous informant’s unverified tip in justifying stop or determining probable cause).

In this case, although the arresting officer initially received his information from a citizen whose reliability is not established in the record, we believe that tip is not relevant to the resolution of whether the fourth amendment has been violated: there was no initial stop of defendant based on the tip which implicated defendant’s rights under the fourth amendment. In the absence of a seizure, the defendant’s fourth amendment right is simply not implicated (People v. Taggart (1992), 233 Ill. App. 3d 530, 547), and a Terry analysis (see Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868) does not apply (People v. Clark (1989), 185 Ill. App. 3d 231, 235-36, citing Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324).

A person is seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (People v. Melock (1992), 149 Ill. 2d 423, 436-37; Taggart, 233 Ill. App. 3d at 547.) The fourth amendment is not implicated where the police merely approach an individual in a public place and ask him if he is willing to answer questions or put questions to him if the person is willing to listen, and the mere approach of an officer who identifies himself as such does not, without more, convert the encounter into a seizure. Taggart, 233 Ill. App. 3d at 547.

“ ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” (People v. Long (1983), 99 Ill. 2d 219, 229, quoting Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16.) Evidence tending to show that there was a seizure includes “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” (Taggart, 233 Ill. App. 3d at 547.) Where an officer merely follows a vehicle without a display of authority (such as by activating his lights or siren) and the driver voluntarily pulls over and stops, there is no fourth amendment seizure. See, e.g., Long, 99 Ill. 2d at 231; Taggart, 233 Ill. App. 3d at 547-48.

An officer who possesses probable cause may make a warrantless arrest in a public place for any felony or misdemeanor committed in the officer’s presence. (People v. Lagle (1990), 200 Ill. App. 3d 948, 952.) Although the State did not address the issue whether the arrest took place in a public place, we consider this issue because, as is evident from the above-stated rule on warrantless arrests, location may play an important role in a warrantless arrest analysis. In the absence of otherwise limiting circumstances, a driveway on private property, like the entrance to a private home, can be considered a public place. See United States v. Santana (1976), 427 U.S. 38, 42, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409 (defendant standing in doorway of her house was in a “public place” for fourth amendment purposes; she had no expectation of privacy and was exposed to public view; officers had probable cause to make arrest which was set in motion in a public place); Lagle, 200 Ill. App. 3d at 954 (in dictum, court concluded that if the officer’s testimony were credible and he saw defendant speeding, followed defendant into his driveway, saw defendant stagger from his truck and had probable cause to arrest defendant for DUI committed in his presence, arrest would be lawful as it was initiated in a public place — defendant’s driveway); see also People v. Wolff (1989), 182 Ill. App. 3d 583 (defendant standing in doorway of his home was in a “public place” where officer had probable cause to arrest for DUI).

In the case at bar, defendant voluntarily pulled into a private driveway, and the officer pulled up behind him. The record is silent regarding any show of force or authority or any indication that the officer requested defendant to stop. Defendant had the burden of proof. The evidence supports the inference that defendant voluntarily stopped his truck, exited and approached the officer. Therefore, contrary to the court’s finding, we determine that there was no “stop” or seizure of defendant when he initially pulled into his driveway and the officer pulled up behind him. At this point, defendant voluntarily approached the officer.

It is at this point in time, however, that probable cause to arrest then developed in the presence of the officer when the officer observed defendant display the usual indicia of intoxication: staggering, swaying while standing, an odor of alcohol on defendant’s breath, slurred speech, and bloodshot eyes. (See, e.g., People v. Kennedy (1986), 144 Ill. App. 3d 4, 6-7.) The officer had just observed defendant driving. Thus, there were sufficient facts within the arresting officer’s knowledge to warrant a person of reasonable caution to believe that defendant had been driving under the influence of alcohol. (See People v. Jebelian (1990), 204 Ill. App. 3d 11, 14.) Under the circumstances present here, we also believe the arrest was lawfully made in a “public place” even though it took place in a private driveway. Defendant did not contend in the trial court that the arrest occurred in a place where he had an expectation of privacy or within the curtilage of his home. See, e.g., People v. Becktel (1985), 137 Ill. App. 3d 810 (unenclosed garden on defendant’s property, open and accessible to public, was not part of curtilage subject to fourth amendment protection).

For the reasons stated, we conclude that the trial court’s decision that there was an impermissible stop of defendant was manifestly erroneous. Therefore, the court’s order granting defendant’s petition to rescind and his motion to quash arrest and suppress evidence must be reversed and the cause remanded for further proceedings.

Reversed and remanded.

BOWMAN and COLWELL, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD P. KNOP, Defendant-Appellant.
    Second District
    No. 2—91—1202
    Opinion filed August 20, 1993.

      Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin, for appellant.
    Val Gunnarsson, State’s Attorney, of Mount Carroll, and Patrick O’Shea, of Lombard (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

After a bench trial, defendant, Edward Knop, was convicted of promoting a pyramid sales scheme (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 7 (now 720 ILCS 5/17 — 7 (West 1992))) and was sentenced to two years’ probation. On appeal, defendant argues that the evidence did not prove him guilty beyond a reasonable doubt. We affirm.

In 1987, defendant founded and promoted BEK Marketing, Incorporated (BEK). On August 28, 1987, the State filed a complaint alleging that defendant knowingly offered to sell the right to participate in BEK, allegedly an unlawful pyramid sales scheme. Initially, the circuit court of Carroll County dismissed the charges on the ground that defendant acted in reliance on a judgment of the circuit court of Cook County holding that Unimax, Incorporated, on which defendant patterned BEK, was not an unlawful pyramid sales scheme. This court reversed the dismissal (People v. Knop (1991), 199 Ill. App. 3d 944), holding that the circuit court order was not an official interpretation of the pyramid sales statute and thus that defendant’s reliance on the order was not an affirmative defense to the charge (see Ill. Rev. Stat. 1991, ch. 38, par. 4-8(b)(4) (now 720 ILCS 5/4-8(b)(4) (West 1992))). The circuit court reinstated the charge and the case went to trial.

The State’s first witness was Dave Reed of the Illinois State Police. On August 19, 1987, Reed was relaxing off duty at Thulen’s Pub in Savanna. Several people, including defendant, were discussing forming a club to buy products and services. As attendance was light, they decided to reconvene on August 25.

At about 8 p.m. on August 25, Reed returned to the tavern. Present in a group were defendant, Beverly Knop (then defendant’s wife), and several other people. Reed listened as defendant lectured the group. Defendant stated that a person could join the buyers club for an initial fee of $50, representing $14 annual dues and $36 for the first month’s dues. Upon joining the club, each buyer would sell at least three new memberships for the same $50 fee. The proceeds would go to BEK. After selling three or more memberships, the buyer would be placed into the “matrix,” becoming eligible to receive monthly royalties at some future date. In turn, each of the original buyer’s recruits would sell at least three new memberships, repeating the original process. Reed’s understanding of the plan was that this process would repeat itself with “[e]ach of those three to sell three and so on to infinity, I guess.”

After he heard this much of the discussion, Reed sat down at the meeting. He expressed interest in joining and asked defendant if the plan was legal. Defendant said the plan was perfectly legal; it had been checked out in several States. Reed asked who would take care of financial matters, including his dues; defendant said that Beverly Knop handled all the books.

Reed requested information about the club. Defendant handed him a brochure. At trial, Reed identified State’s exhibit No. 2 as an accurate copy of this brochure. The brochure describes BEK Marketing as a subsidiary of BEK Enterprises, Incorporated. A page headed “Golden Opportunities, ‘Sweeping the Nation’ ” states that “Pre-Paid Legal Services assets exceed $44,789,000, Now that’s the kind of company you like to do business with.” A map shows in which States Prepaid Legal Services does business. Nothing in the brochure elaborates the relationship, if any, between Prepaid Legal Services and BEK.

The next section of the brochure is entitled “The American Dream Test.” This section informs a prospective member that joining BEK can save money and that the program “could give you $25.— $50 — $100. dollars [sic] or more for your $1 dollar [sic].” The “American Dream Test” asks “Do you think you could interest 3 or 4 friends or others to join the program? It is not a must that they join. It will help you if they do.” If the answer to the previous question is yes, “then I’ll show you the program.” After a member signed the program agreement, “I’ll go one step further — would you let the company give you a $20 dollar [sic] bonus every time you interest a person and they [sic] sign the program agreement?” The reader learns that if he has answered all the questions “yes,” he has passed the American Dream Test and is on the way to improve his life financially and to obtain “a chance to become financially independent.”

On the page after the “American Dream Test” is a schedule of seminars starting June 15, 1987, to “promote subscribers [sic]/ marketers/coordinators.” The seminars would be directed by BEK, officers of two Iowa businesses, and two “coordinators” from Prepaid Legal Services.

The next five pages of the brochure inform prospective members of the opportunity to save money from various wholesalers and manufacturers and to obtain tax-sheltered life insurance through a Free-port, Hlinois, firm. Under the heading “CLINTON, CAMANCHE” are reprints of advertisements from various businesses, including the Penthouse Restaurant, Dick’s Auto Sales, Wall Street Antiques, and Heritage Motors. Underneath each advertisement is the signature of a “New Subscriber.” The Savanna Moose Lodge is also listed as a “New Subscriber,” with its secretary providing the “New Subscriber’s Signature.”

Next in the brochure is a page informing prospective members that they can “save significant money” by buying from manufacturers and wholesalers through BEK. After explaining how the buyers club works, this page states:

“Our design is that our members, is [sic] realizing what a tremendous bargain their membership is, will want to tell others about BEK. Word of MOUTH is the best form of advertising. In recognition of this, BEK has designed a unique marketing plan that enables you to share in the success of BEK as you tell others about it. It’s easy as 1-2-3., Introduce three people to BEK and you’re on your way. This is what we call the MATRIX MARKETING PLAN. Your monthly bonus checks can eventually pay your membership fee and earn income.”

After reprinting merchandise advertisements from various sources, informing people that membership in Prepaid Legal Services could save them money (as it did for defendant), and advertising BEK’s purported new group medical insurance plan, the brochure moves to a one-page description of the “Multi-Level Marketing Plan 3 x 9 Matrix.” This page promises prospective BEK “Marketers”— those who sell subscriptions to the buyers club — of the bonuses that they can achieve by recruiting new members, who in turn would recruit new members, and so on further “downline.” There are nine levels or “generations” and a marketer’s bonuses increase with each level he reaches. The bonuses are summarized in a table entitled “GOAL TO EARN MORE and BUILD IT BIGGER Fabulous Bonuses.” The bonus schedule pays “6% on all 9 levels.”

Immediately above the table are the following lines:

“MULTI-LEVEL MARKETING PLAN 3x9 MATRIX
*Each marketer must sign in at least three people to qualify for the commissions.
*More than three AUTOMATICALLY goes in your down-line.
*Monthly bonuses paid on 9 levels.
*A11 bonuses paid from subscribers’ $36.00 monthly fee.”

The bonus table summarizes the following information for each level (or “generation”) that a marketer reaches: the number of people brought into the program; the percentage “paid downline”; the “$ per level”; and the resultant monthly totals.

We note a few examples of how the bonus system purportedly works (or was supposed to have worked). On the first level, a marketer earns $1.08 total monthly (1% each of three $36 memberships). Upon completing the requirements of the second level, the marketer earns 3% of the total memberships of the nine new people that have been brought in (three by each of the three original recruits); this amounts to $9.72 for this level, and, thus, a monthly total of $10.80. The percentage paid downline rises to 8% for the third generation, 9% for the fourth, and 10% for the fifth; it then decreases to 6% for the ninth level. By the time a marketer reaches the ninth generation (at which time 19,683 new members have been signed up for the buyers club), his monthly total of bonuses is $68,935.32. However, with a minimum of 1,000 “active subscribers” in his personal matrix, a marketer at the ninth level earns an 11% bonus on all subscribers in that level. This means that he would earn a monthly total of $104,364.72. Of this amount, $77,944.68 results from the enlistment of the 19,693 new subscribers at the ninth level.

The brochure includes a list of “Subscriber Rules and Regulations.” A “subscriber member” is a person who elects to join BEK by paying the monthly fee. An “independent BEK marketer” is a person who chooses to participate in the marketing plan, has completed the required application and training, enrolls new subscribers, and earns monthly bonus checks on his or her “own network of subscribers.” Subscribers may terminate their memberships at any time, but may not rejoin for six months after notifying BEK of this decision. There is no charge to become an “independent marketer.” The rules state that “[a]ny BEK subscriber who chooses to participate in the network marketing program is eligible” to become an independent marketer.

Reed recalled that he spent about 35 minutes at the August 25, 1987, meeting. While Reed was present, defendant briefly discussed the chance that members would have to' buy products at discounts through the club. Overall, defendant spent slightly less than half of the 35 minutes discussing the benefits of joining the buyers club and slightly over half the time explaining memberships, fees, and the marketing matrix. Reed could not recall any specific mention of “fabulous bonuses” or of the possibility of a marketer making about $104,000 per month. Reed talked to several people about the possibility of buying goods through the club, but he decided not to join BEK.

Beverly Bailey, formerly Knop, testified that in 1987 she and defendant, then her husband, founded BEK. She did not remember exactly when BEK was incorporated. Its operations stopped in August 1987, when the Knops were arrested. The charges against Bailey were dismissed before defendant’s trial.

Sometime in 1987, defendant first told Bailey about his plan to form BEK. Initially he told her that he was considering starting a marketing system based on the Unimax plan, although Bailey never saw any materials describing Unimax. When defendant started to organize BEK, he told Bailey that people had to pay $50 to join; it was then necessary for everyone who joined to pay $36 monthly and to sign up three more people “to make it work.”

Although defendant made her “president” of BEK, Bailey’s main work was answering the phone and writing out checks. BEK kept no corporate books of which she was aware, and she testified that she had no control over the corporation.

Bailey attended several of the promotional meetings that defendant arranged. The meeting at Thulen’s Pub followed a standard format. The meetings lasted “about an hour, maybe.” Defendant discussed both the various products and services that the club would make available at a discount and the “American Dream” marketing matrix. Bailey did not recall how much time defendant allocated to each of the two aspects of BEK. Defendant showed people the brochure. Then (in Bailey’s testimony):

“He would tell them that that [sic] they could make money. That they would have to pay $50.00. *** to get in and it was $36.00 a month and then they got a discount for items. Then they had to come into that matrix *** and they had to sign up three people, you know. I don’t know how it worked real well, but — .”

According to Bailey, defendant, in explaining the matrix, told audiences that a “new person” had to complete a subscriber application. As defendant explained the marketing program, a person could buy his way to the top of the matrix. For a marketer to receive money by recruiting people into BEK, those he recruited had to remain active, i.e., they had to keep recruiting others as the plan specified.

There was an alternate way to rise to the top of the matrix: paying BEK $25,000 to become a “coordinator.” There was no limit to the number of coordinators. On direct examination, Bailey stated that Wayne Quick of Clinton, Iowa, paid to become a coordinator. On cross-examination, Bailey explained that Quick actually paid the money in 1986 to join BEK Chemical, a company that defendant started in 1986. Defendant then told Quick that Quick could be a marketer in BEK. On redirect examination, Bailey stated “one guy” paid $5,000 to become a coordinator. She knew of this transaction because she deposited the $5,000 check.

On direct examination, Bailey stated that in 1987 BEK received “over $50,000 or so” in new buyers club subscriptions. On cross-examination, she conceded she had no basis for this estimate other than that “quite a few” people joined. She had no idea how many people actually signed up to become part of BEK.

Bailey testified that although she ordered none of the products listed in the brochure, these products were available as the brochure stated. Bailey accompanied defendant to meetings with manufacturers and wholesalers to discuss possible discounts for buyers club members. When she and defendant went to the warehouse of East Moline Bar-Jan Wholesale Products (Bar-Jan), a wholesaler of automotive supplies and other goods, defendant discussed purchasing products from this company, and Bailey saw that the warehouse contained a wide variety of products. Also, defendant told her that BEK was a subscriber, distributor, or marketer for Prepaid Legal Services. However, she did not use this service personally; to her knowledge, neither did BEK.

Bailey testified that she recognized the copies of cancelled checks in the back of the BEK brochure. She admitted that some of these checks were never really negotiated. For instance, a check ostensibly made to Kelly Behrens, Bailey’s sister, did not really go to Behrens; defendant simply made this check up to use in his marketing effort. Bailey was sure that defendant had “faked” other checks, including one he signed in her name, to show to prospective customers as proof that people actually received money (from bonuses or buyers club discounts) when they joined BEK. According to Bailey, defendant discussed the use of these checks as he was setting up the sales brochure.

Defendant’s first witness, attorney William Shirk, recounted that in May 1987 he and the Knops conferred about the multilevel marketing business defendant planned to organize. Defendant told Shirk that the new organization would be patterned on the Unimax system; Shirk, who knew little about multilevel marketing, was not then familiar with Unimax, and he did no legal investigation into Unimax until after defendant was arrested. Shirk set up a corporation for defendant, but at trial he could not recall whether this corporation was BEK Chemical or BEK.

William Engel, who owned a retail jewelry store in Savanna, testified that in 1987 defendant asked him if he would be interested in selling watches at a discount through defendant’s new organization. Engel replied that he would like to study the idea some more. The matter went no further.

Dennis Dopier testified that he was in charge of operating the showroom at Bar-Jan. The court admitted a copy of Bar-Jan’s current catalog into evidence. Dopier testified that Bar-Jan had a similar catalog in 1987. Bar-Jan sells a wide variety of products wholesale to businesses; it does not sell directly to consumers. Dopier testified that defendant was a Bar-Jan customer. In 1987, defendant set up an account with Bar-Jan for either BEK Chemical, BEK, or both; Dopier was not sure whether there was any difference between BEK and BEK Chemical.

Vincent Gaffey testified that he had been a distributor for Amway, a multilevel marketer, since 1959. Before BEK was formed, defendant asked Gaffey for advice about multilevel marketing. Gaffey gave him no advice and was uninterested in his plans. Gaffey testified that Amway employees’ compensation is based on the volume of products and services they sell. Amway employees do not get extra money simply from recruiting new members into the organization, though they may eventually benefit from the new members’ sales of products and services.

Charles Anderson of Savanna testified that he had been an Amway distributor for about 20 years. In 1987, he was (as best he recalled) both a subscriber and distributor for BEK. Anderson was familiar with the BEK brochure. He stated that BEK operated “pretty much” as the brochure said. A BEK subscriber could participate in the buyers club but could not (and need not) sign up new BEK members. By contrast, a distributor (or “marketer”) was “a person who sign[ed] up others to be in the distributing end of it.” A distributor was not required to sell any products to retail customers. A person did not need to pay just to become a distributor because a distributor’s job was simply to sell subscriptions and distributorships. A subscriber could do a marketer’s duties, but he could become a marketer for no extra cost by signing the standard marketer’s agreement.

According to Anderson, Amway and BEK shared certain characteristics and differed in some respects. In both organizations, how much a person made depended on how hard he worked. Neither organization required a member to sponsor new members. In Amway, Anderson sponsored new members and also sold consumer products. In BEK, Anderson could obtain bonuses for selling at least three subscriptions. While he was in BEK, Anderson did not sell any products; he could not recall at trial whether members of the buyers club could purchase goods directly from wholesalers. As he recollected, a marketer could earn commissions "off of selling products in BEK Marketing.”

Glen Doty testified that in 1987, after attending one of defendant’s presentations, he joined BEK. He first testified that he signed up as a subscriber, not a marketer, and did not intend to sell subscriptions. However, he admitted that he signed a standard BEK marketer’s agreement. Doty joined because he believed that through BEK both he and the Savanna Moose Lodge could obtain needed goods at substantial discounts. However, he was unable to obtain any goods through BEK.

Raymond Frankenberger recalled that BEK began in June or July 1987. By the time Frankenberger attended the meeting at Thulen’s Pub, he was a member of the BEK organization. He signed up as both a subscriber and a marketer, paying the usual fee for the former post and obtaining the latter one for no extra cost.

Frankenberger could not recall how long the meeting was or the relative amounts of time defendant spent on explaining the buyers club and explaining the operation of the marketing matrix. When defendant explained the matrix, he used an easel to sketch a diagram that resembled a family tree. There was no end to the levels involved, and a new member ultimately could make a profit by getting other people to join. Frankenberger testified that, as far as he understood, for the program to “pay back,” everyone participating had to recruit people into the buyers club.

Frankenberger recounted that neither he nor anyone else ever bought any goods through BEK because, when defendant was arrested, defendant was just lining up wholesalers as part of the beginning stages of BEK. Frankenberger, who was in the vacuum cleaner business at the time, expressed interest to defendant in working with BEK. Before Frankenberger got any further than this expression of interest, defendant was arrested. While BEK was still being formed, defendant took Frankenberger to the Bar-Jan warehouse. Frankenberger spoke with the owner of Bar-Jan. It “sure sounded” to Frankenberger as though defendant and the owner had a business relationship at the time.

Defendant’s final witness was Michael Merboth of Savanna, who signed a BEK marketing agreement in 1987. As a BEK marketer, Merboth ran several meetings at which he told people of the benefits of the BEK program. At these meetings, Merboth showed potential recruits the BEK brochure. He emphasized both selling subscriptions and signing people up to “market the matrix.” He was to receive a 40% commission for each person he signed up for the buyers club. A subscriber could buy an item at a discount through BEK. Also, the subscriber could (for example) go to East Moline and buy directly from Bar-Jan.

Merboth acknowledged that there were two ways to benefit from becoming part of the BEK system: by purchasing goods at a discount and by obtaining commissions for recruiting others into the BEK system. The latter opportunity was Merboth’s primary motive for joining BEK. Merboth explained that “[w]hat I was looking for was to make money out of the commissions. I was going to get as many people as I could in.” The opportunity for commissions was his primary motive because he “saw a chance to become very wealthy with this.”

Once people were brought into the matrix, BEK encouraged them to get other people involved. Merboth was familiar with paragraph 31 of the brochure, which stated that, upon each request, a marketer should be able to list at least four people each month to whom the marketer had made his best efforts to sell the program. Merboth knew that for the system to continue new members had to join or stay active. If people quit buying into the system, he would stop receiving his commissions. The marketing structure would get “bigger and bigger.” The only way that this process could stop was “if you ran out of people,” but that was “an impossibility” because “[ejvery time there is a baby born, there is a new network marketing prospect.”

After argument, the trial court found defendant guilty of promoting an unlawful pyramid sales scheme. The court concluded that it was bound by the ruling of the Appellate Court, First District, in People ex rel. Hartigan v. Unimax, Inc. (1988), 168 Ill. App. 3d 718. The court’s memorandum opinion noted that BEK was organized almost identically to Unimax. The opinion concluded that defendant placed substantial emphasis on the “matrix portion” of BEK and that the marketing system “relied upon the illusory promise of wealth based upon the recruitment of additional subscribers.” After the court denied defendant’s post-trial motion ánd sentenced him, defendant timely appealed.

On appeal, defendant argues that the State did not prove beyond a reasonable doubt that BEK was a “pyramid sales scheme” forbidden by statute. He argues that the trial court erred in holding that Unimax is dispositive of this case. Defendant notes that in Unimax the appellate court held only that there was a question of fact whether the Unimax system was an illegal pyramid sales scheme as defined by the Consumer Fraud and Deceptive Business Practices Act (see 815 ILCS 505/2A (West 1992)). Moreover, although defendant concedes that BEK was closely patterned on the Unimax system, he notes what he believes is a crucial difference: under BEK, a person need not pay a fee to become a marketer who could sell the program to others.

When deciding whether a defendant has been proved guilty beyond a reasonable doubt, we do not retry the defendant; rather, we ask only whether the evidence, when viewed in the light most favorable to the prosecution, is sufficient to convince any rational trier of fact that the elements of the offense were proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) We hold that the evidence was sufficient to prove that BEK possessed the essential characteristics of an unlawful pyramid sales scheme. To explain our conclusion, we begin with the language of the statute under which defendant was convicted:

“§17 — 7. Promotion of pyramid sales schemes, (a) The term ‘pyramid sales scheme’ means any plan or operation whereby a person, in exchange for money or other thing of value, acquires the opportunity to receive a benefit or thing of value, which is primarily based upon the inducement of additional persons, by himself or others, regardless of number, to participate in the same plan or operation and is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers. For purposes of this subsection, ‘money or thing of value’ shall not include payments made for sales demonstration equipment and materials furnished on a nonprofit basis for use in making sales and not for resale.
(b) Any person who knowingly sells, offers to sell, or attempts to sell the right to participate in a pyramid sales scheme commits a Class A misdemeanor.” Ill. Rev. Stat. 1987, ch. 38, par. 17-7 (now 720 ILCS 17-7 (West 1992)).

Our primary goal in construing this or any statute is to effectuate the intention of the legislature. (Stone v. Department of Employment Security Board of Review (1992), 151 Ill. 2d 257, 261.) We must consider the particular evil that the legislature sought to remedy by passing the law at issue. (Collins v. Board of Trustees of Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, Ill.) The best guide to the legislature’s intent is the statutory language, which must be given its plain or ordinary meaning. (Collins, 155 Ill. 2d at 111.) Here, we may rely on cases interpreting the Consumer Fraud Act’s ban on pyramid sales schemes, as the civil and criminal statutes address the same subject matter and are thus in pari materia. Stone, 151 Ill. 2d at 262; In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 559.

The evil that laws against pyramid sales plans seek to remedy has been described thus:

“Pyramid programs *** which induce a person to participate on the representation that he or she cannot only regain the purchase price, but also reap profits by selling the plan to others, are inherently deceptive and contrary to public policy. [Citations.] The deception arises because the market eventually becomes saturated and the seemingly endless chain must end; consequently, many participants cannot even recoup their investments, let alone make a profit.” People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 486-87.

See also People ex rel. Hartigan v. Dynasty System Corp. (1984), 128 Ill. App. 3d 874, 883, quoting Walsh, 122 Ill. App. 3d at 486-87, 461 N.E.2d at 82-83; Love v. Durastill of Richmond, Inc. (1991), 242 Va. 186, 189-90, 408 S.E.2d 892, 894-95 (as pyramid expands, number of available new participants diminishes so that late entrants into the operation run out of opportunities to recruit new members).

Reading the statutory language straightforwardly, we conclude that a pyramid sales scheme is any plan in which (1) in exchange for “money or other thing of value” (2) a person acquires the opportunity to receive a benefit or thing of value where this benefit received is primarily based upon the inducement of others to participate in the same plan rather than upon the volume of goods to be sold or distributed. The evidence proved that BEK was such a plan.

The trial court could properly conclude that under the BEK matrix system marketers and coordinators (who, it could be inferred, would characteristically also be subscribers) would exchange money or another thing of value — ie., subscribers’ fees, coordinators’ fees, or hours of training and sales work that inured to the benefit of defendant and BEK — for a benefit (the “fabulous” and explicitly detailed bonuses) that was based primarily upon inducing others to join the system (either as subscribers or, just as likely, as marketers in search of their own “fabulous bonuses”) rather than upon the volume of goods (e.g., discounted watches, automotive parts, Rambo survival knives) ultimately distributed.

Even were we to define “goods to be sold or distributed” generously to mean subscriptions to the buyers club, rather than the services and tangible goods ostensibly available at discount via such subscriptions, we would conclude that the testimony (much of it from defendant’s own witnesses) was adequate for the trial court to conclude that the primary inducement for joining BEK at the suggestion of others was to take advantage of the opportunity to enjoy large bonuses from the sale of further memberships rather than to take advantages of the memberships themselves.

Defendant focuses primarily on the sufficiency of the evidence that BEK met the first part of the definition. He argues that because people could become marketers for free, they did not pay money or a thing of value for the opportunity to procure their benefit. There are several flaws to this argument.

First, there was evidence that anyone could, and at least one person did, pay a large sum of money to move up the matrix to become a “coordinator.” The statute requires only that “a person” acquired the marketing opportunity in exchange for money. The evidence that at least one person paid to become a marketer would be minimally sufficient to satisfy this part of the statutory definition. As another jurisdiction has held in construing a similar statute, it is not necessary that all participants in the multilevel marketing plan gain access through the payment of a specified fee; proof that fewer than all paid to do so would suffice. Philpot v. State (Tex. App. 1988), 761 S.W.2d 803, 806.

Moreover, the Appellate Court, Fourth District, has held that it is sufficient that a person pays for the opportunity to participate in a pyramid sales plan even if the person is not required to pay for this privilege. (People ex rel. Hartigan v. Dynasty System Corp. (1984), 128 Ill. App. 3d 874, 880, following State ex rel. Edmisten v. Challenge, Inc. (1981), 54 N.C. App. 513, 516-17, 284 S.E.2d 333, 336.) This rationale applies with particular force, where — as here and in Dynasty and Challenge — the inherent logic of marketing the system encourages most of the marketers to become subscribers as well.

This leads into the second flaw in defendant’s argument. The trial court could infer that, although marketers were not contractually required to become subscribers in order to sell subscriptions, they were as a practical matter required to do so, as several testified they had done. A marketer’s job was to convince prospective customers that joining the buyers club was a worthwhile endeavor. A marketer who was not himself in the buyers club would be at a major disadvantage in attempting to convince others that they should join an organization to which he declined to belong. Perhaps he could do so by convincing them that the real benefits consisted not in becoming subscribers but in becoming marketers who could make money solely by inducing others to subscribe or to become marketers. To the extent that such a strategy succeeded, however, it would simply reinforce the “pyramid” nature of BEK; people would forego subscribing to the buyers club and simply become marketers in the hopes that people further down-line ultimately would enable them to move up the matrix and earn steadily greater bonuses. The emphasis of the overall organization would thus move steadily away from either the purchase of memberships (though not from the hopes that someone further down would do so) or the purchases of actual goods or services such as jewelry, blowguns, or discount dinners.

It is noteworthy that even though BEK did not formally require marketers to become subscribers, defendant’s very own promotional brochure emphasized that subscribers could use the matrix to earn bonuses that would eventually recoup their membership fees (or better) as these subscribers each used “[w]ord of MOUTH” to induce three friends to join BEK.

Third, the phrase “thing of value” includes more than a monetary fee. The language is not limited to the payment of money or a tangible equivalent. In construing an analogous statute that uses the term “for a consideration” rather than “for money or other thing of value,” the Missouri Court of Appeals has held that “consideration” includes the responsibility that a marketer assumes toward the organization and its marketing policies. (State ex rel. Webster v. Membership Marketing, Inc. (Mo. App. 1989), 766 S.W.2d 654, 658.) Thus, in Membership Marketing, the mere fact that a “sales representative” was not required to buy one of the “5-Star Plus” buyers club memberships that he attempted to market was insufficient to insulate the organization from the prohibition against pyramid schemes.

The trial court had sufficient reason to conclude that the plan at issue here generated the type of evil that the legislature sought to remedy by both the civil and criminal prohibitions against pyramid sales schemes. In holding that a somewhat similar plan was impermissible, the court in Dynasty noted that the sales scheme at issue there placed its primary emphasis on recruiting other participants into the downline organization and put little emphasis on the sales of products and services. (Dynasty, 128 Ill. App. 3d at 878-79.) Here, despite one witness’ insistence that every newborn baby is a potential addition to the marketing matrix, the operation of the multiple-referral system that is the essence of the matrix would in time result in diminishing opportunities for an increasing number of members to recruit new members into the system. All of this would occur without requiring any sale of consumer goods or services or resale of buyers club memberships. Moreover, there was testimony from defense witnesses that the recruiting process would have to keep going for the system to “work” or to “pay back.” As the opinions we have discussed observe, these are the fundamental characteristics of prohibited pyramid sales schemes.

The conclusion that BEK was a typical pyramid sales scheme receives reinforcement from a number of facts in evidence. First, two defense witnesses who worked as marketers testified that they induced others not only to become members but also to become marketers themselves. Thus, they were expanding the organization in two respects, as bringing in more marketers would provide more people who could recruit more subscribers.

Second, the evidence allowed the trial court to find that the primary purpose of BEK as a whole was to generate profits through the growth of the customer base and that the buyers club was a sham or a pretext covering this essential purpose. As the State notes on appeal, nobody ever bought any goods through BEK. Defendant’s efforts to contact wholesalers and manufacturers seem to have been minimal. Defendant’s promotional brochure gave few if any specifics (other than membership costs) about the operation of the buyers club. In contrast to the lack of information about the benefits of discount buying, the promotional brochure goes into extensive detail about the precise amounts of money that subscribers and others stand to earn in “fabulous bonuses” accruing through the operation of the marketing matrix. The brochure stresses that subscribers have the chance to earn $25 or more for each dollar spent and that BEK will give them the chance to “become financially independent.”

In finding defendant guilty, the trial court relied heavily on People ex rel. Hartigan v. Unimax, Inc. (1988), 168 Ill. App. 3d 718. Although the reasoning in Unimax is not absolutely essential to our holding here, we concur in it and believe that Unimax provides additional support for the judgment of conviction in this case.

In Unimax, the appellate court reversed a trial court holding that, as a matter of law, the defendant’s marketing system did not violate the civil prohibition against pyramid sales schemes. The Unimax system was very similar to BEK and, as defendant acknowledges, served as the prototype for BEK. A person could become either a subscriber or a marketer; unlike BEK, Unimax charged an extra fee for those who worked as marketers only.

In reversing the grant of summary judgment, the Appellate Court, First District, stated that the marketing matrix “easily can be viewed” as meeting the criteria for a pyramid scheme as defined by the Consumer Fraud Act. (Unimax, 168 Ill. App. 3d at 723.) The court emphasized that the marketers acquired the opportunity to receive benefits — commissions—that were primarily based on inducing other people to join the system and were not related to the sale of goods or services available through the buyers club. Unimax, 168 Ill. App. 3d at 723.

The court rejected Unimax’s argument that the plan was not a pyramid scheme because marketers received commissions for selling memberships in the buyers club, as opposed to receiving commissions simply for bringing in more marketers; the court refused to equate memberships in the buyers club with goods and services sold through the buyers club. In so doing, the court noted that Unimax’s mode of operation emphasized drawing more people into the organization, an emphasis that the company communicated aggressively to its members. The court also observed that a Unimax marketer’s sole means of gain was the recruitment of members into the separate buyers club. Unimax, 168 Ill. App. 3d at 723-25.

Defendant is technically correct that the first district did not declare that Unimax was a pyramid sales scheme but only that the trial court had erred in holding as a matter of law that the Unimax system was not such a forbidden scheme. Strictly speaking, the only question before the appellate court was whether the trial court was correct in granting summary judgment for Unimax (apparently, the State had not moved for summary judgment against Unimax). Nonetheless, any fair reading of Unimax supports the trial court’s decision in this case. The only difference between Unimax and BEK that might be relevant is that BEK does not charge a separate monetary fee for the opportunity to become a marketer. It is this difference upon which defendant relies on appeal. For a variety of reasons enunciated at some length earlier, we have rejected this attempt to distinguish BEK from either the Unimax system or the definition of “pyramid sales scheme” in the statute under which defendant was convicted.

The judgment of the circuit court of Carroll County is affirmed.

Affirmed.

BOWMAN and COLWELL, JJ., concur.