author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SAMUEL CORDERO, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—3709
    Opinion filed June 7, 1991.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
    Thomas Peters, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

The State appeals from a pretrial order suppressing a quantity of cocaine and a handgun seized pursuant to the execution of a search warrant. The trial judge predicated his suppression order on Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. The only issue on appeal is whether the trial judge’s order suppressing the evidence was manifestly erroneous.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. On September 7, 1986, Chicago police officer John Galligan submitted the following affidavit in support of a search warrant:

“The above affiant, a Chicago Police Officer, has received information from a reliable informant whom I have known for the past year. In the last six months this reliable informant has given me information on narcotics on two different occasions. On each of these occasions I have acted on this information, and as a result have made two separate arrests and confiscated narcotics. On each occasion I have submitted the confiscated narcotics to the Chicago Police Crime laboratory. I have received a positive lab report for narcotics on each case. Both cases are pending in the Circuit Court of Cook County.
On 06 Sept. 86, I met with this informant and he related to me that on 05 Sept. 86 he had occasion to go to apt. No. 1804 at 4334 N. Hazel (highrise) and was admitted to this apt. by a M/WH he knows as Samuel Cordero 5-6, 150, Blk. Hair and Brn. eyes. Once in the apt. Samuel asked what my informant wanted and my informant stated that he wanted one half ounce of cocaine. Samuel stated that it would cost $800 to which my informant agreed if he could try it. Samuel first went to a drawer in the kitchen and took out a small semi-auto pistol, then he took out a clear plastic bag containing white powder. Samuel placed both the pistol and the plastic bag on the table and placed a small amount of cocaine on a mirror and my informant snorted the cocaine. My informant has been using cocaine the last year that I have known him and states that this cocaine that he had snorted gave him an immediate high the same as he had gotten in the past from using cocaine.
My informant then told Samuel that he would buy the cocaine. Samuel then measured out one half ounce of cocaine, placed it in a clear plastic bag and gave it to my informant. Samuel then placed the remaining cocaine and the pistol back into the drawer. My informant then gave Samuel the $800 and left the apt. My informant states that when he left the apt. Samuel still had at least 2 ounces of cocaine and a small pistol under his control.
With this information from a reliable informant, I petition the court to search the apt. No. 1804 at 4334 N. Hazel Chicago Elinois, Cook County, and the person of Samuel Cordero, M/WH 21 Jan. 66 5-6 150 Blk. hair & Brn. eyes.”

(As the record indicates, the informant was actually a woman; the officer identified her as a male to hide her identity.) The search warrant was issued and was executed the same day by Officer Galligan and others. During the search they discovered 30 grams of cocaine and the handgun referred to in the affidavit. The defendant, who was present in the apartment, was arrested and charged with a number of offenses including possession of cocaine.

Prior to trial, the defendant moved to suppress both the cocaine and the handgun, or, in the alternative, for a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. The motion, which was supported by three affidavits, alleged that on September 5 the defendant had not been in the Hazel Street apartment but was instead in Harvey, Illinois, picking up a car for his sister.

The trial judge heard the testimony of several witnesses before deciding whether the defendant had made a substantial preliminary showing, thereby requiring a full Franks hearing. The defendant first called Officer Galligan, who testified to substantially the same facts in his affidavit. He added that, after his conversation with the informant, he corroborated the location of the Hazel Street apartment, the defendant’s physical description and his birth date, and also checked the defendant’s previous criminal record.

Next, the defendant testified that he was not at the Hazel Street apartment on September 5 and that he did not sell narcotics to anyone on that date. Instead, from 8 a.m until around 4 p.m., he drove with two friends to Harvey, Illinois, to pick up a car for his sister. When he returned to Chicago he met his girlfriend for dinner and a movie, and the two of them then spent the evening at his own apartment. (The record indicates that Edwin Rodriguez, the husband of the defendant’s half-sister, was the resident of the Hazel Street apartment; Rodriguez would give the defendant the keys to the apartment when he was out of town.) The defendant also called several other witnesses to corroborate his alibi including one of the friends who drove with him to pick up the car, the financial manager of the car dealership, and the girlfriend.

At the conclusion of this testimony, the trial judge ruled that the defendant had made a substantial preliminary showing, thereby requiring a full Franks hearing.

At the hearing, the defendant called the police informant, Carmen Rivera. She testified that she was the defendant’s ex-girlfriend. Her first contact with the officers in this case was in July 1986, when Officer Miedzianowski investigated a shooting in her neighborhood. Officer Miedzianowski mentioned that if she could give him names of people dealing in narcotics he would pay her for that information. She gave the officer her telephone number. The officer called her about a week later. Rivera told the officer that the defendant, Samuel Cordero, had a criminal record. In a subsequent phone call, she told the officer that she and the defendant used to “party” with cocaine at the Hazel Street apartment.

Rivera testified further that on September 5 the defendant called her and told her that he was going to a wedding the following day with his current girlfriend. That evening, Rivera called Officer Miedzianowski and informed him that the defendant and his current girlfriend would be spending the night at the Hazel Street apartment and that cocaine would be in the apartment. Rivera testified that, after the defendant was arrested, Officer Miedzianowski met her and gave her $500 for the information.

Rivera denied that she purchased cocaine from the defendant on September 5 or that she gave Officer Galligan information on this case. She testified that she told Officer Miedzianowski about the defendant because he had hurt her. After the defendant was arrested, he contacted Rivera and told her that he had found out that she was the informant. He told her he would not hurt her and then persuaded her to meet with defense counsel.

After the defense rested, the State moved for a directed verdict. The motion was denied.

The State called the affiant, Officer Galligan, and Officer Miedzianowski. They testified again to the statements appearing in the affidavit and denied the possibility that Rivera had been paid for her information.

At the conclusion of this testimony, the trial judge ruled that the defendant had met his burden by a preponderance of the evidence showing that Officer Galligan included statements in his affidavit in reckless disregard for the truth. In support thereof, the trial judge cited the lack of testimony by Officer Galligan concerning his conversation with the informant. Although the trial judge did find that the informant told the officers about the cocaine and the handgun, the trial judge concluded that the informant did not tell Officer Galligan that she went to the Hazel Street apartment on September 5 to purchase the cocaine and that $800 was actually exchanged. Consequently, the trial judge ordered the evidence suppressed.

The State then filed a motion to reconsider the order suppressing the evidence. In ruling on this motion, the trial judge conceded that the informant gave conflicting testimony, some of which “bordered on outright lies.” He also found again that the informant told the officers about the cocaine and the handgun. However, the trial judge also expressly found that, notwithstanding the conflicting testimony, there was “no possibility *** that the informant told the officer what he affirmed to in the affidavit for a search warrant.” Finally, the trial judge objected to the standard form of the affidavit. He surmised that the officers took whatever information the informant actually gave them and “transformed” it into a certain style to make it better.

The State filed this appeal, arguing that the trial judge’s order suppressing the evidence was manifestly erroneous.

Opinion

It is well established that a criminal defendant has the right to challenge the veracity of statements made in an affidavit supporting a search warrant. (Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) The procedure is twofold. First, the defendant must make a substantial preliminary showing that a false statement knowingly and intentionally or with a reckless disregard for the truth was included by the affiant, and if the allegedly false statement is necessary to the finding of probable cause, then the defendant is entitled to a full evidentiary hearing. Second, at the hearing, if the allegation of perjury or reckless disregard for the truth is established by the defendant by a preponderance of the evidence and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, then the search warrant must be voided and the evidence suppressed.

A trial judge’s ruling on the substantial preliminary showing should be given great deference by a reviewing court. One court has stated:

“[I]t may well be that in some cases a trial judge will deny a hearing when in fact a warrant was issued on the basis of the false statements. It is also true that the same balancing test may result in an evidentiary hearing being held when none is warranted. So long as the trial court’s judgment is exercised within permissible limits, that judgment will not be disturbed.” (People v. Lucente (1987), 116 Ill. 2d 133, 153, 506 N.E.2d 1269, 1277.)

Accordingly, in the instant case we will not disturb the trial judge’s ruling on the defendant’s substantial preliminary showing.

A trial judge’s order suppressing evidence after a full Franks hearing should not be disturbed unless it is manifestly erroneous. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) We do believe that upon review there is sufficient evidence in the record to have supported an order denying the motion to suppress. For example, in assessing the police informant’s conflicting testimony, the trial judge found that Rivera did tell the officers about the cocaine and handgun. Officer Galligan also testified that he corroborated some of the information given to him by Rivera. Where an informant is right about some facts, the informant is more probably right about other facts. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Also, notwithstanding the trial judge’s objections to the standard form of the affidavit, Illinois courts have expressly held that an affidavit “will not be considered deficient simply because its format is similar to that of other complaints.” (People v. Hodges (1987), 159 Ill. App. 3d 38, 43, 512 N.E.2d 19, 23.) However, upon review, we are reminded that “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” (Gates, 462 U.S. at 236, 76 L. Ed. 2d at 547, 103 S. Ct. at 2331.) On this basis, we decline to reverse the trial judge’s order.

Furthermore, the following evidence appears in the record which supports the trial judge’s order. Attached to the defendant’s motion to suppress were three affidavits all supporting the defendant’s alibi that he was not at the Hazel Street apartment on September 5. The defendant produced several witnesses who testified that they had firsthand knowledge that the defendant, in fact, spent the day picking up a car for his sister and spent the evening with his current girlfriend. Also, the defendant produced the police informant, who denied that she gave information to Officer Galligan. Finally, paragraphs three and four of Officer Galligan’s affidavit focus on the September 5 purchase.

In light of this evidence, the trial judge found that the information in Officer Galligan’s affidavit concerning the September 5 purchase was included in reckless disregard for the truth. Presumably, the trial judge then set to one side paragraphs three and four of the affidavit and concluded that the remaining content was insufficient to establish probable cause. Consequently, the trial judge ordered the evidence suppressed. We cannot say that this order was manifestly erroneous.

Affirmed.

GORDON and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
      In re ESTATE OF JOHN R. WEBSTER, Deceased (George W. Williams, Ex'r-Appellant, v. Edith L. Hardy, Legatee-Appellee (The State of Illinois, Appellee)).
    First District (5th Division)
    No. 1—90—2605
    Opinion filed June 7, 1991.

      Robert B. Williams, of Toledo, Ohio, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Donald M. Devlin, and Sheila Threlkelk, Assistant State’s Attorneys, of counsel), for appellee State of Illinois.
   JUSTICE MURRAY

delivered the opinion of the court:

This action was filed in the circuit court of Cook County, Illinois, for probate of the will of John R. Webster, and for distribution of the testator’s assets thereunder. The circuit court ruled that the legacy to Betty Hardy Williams, testator’s stepdaughter, and the contingent residuary legacy to Robert Bruce Williams, testator’s stepgrandson, both lapsed pursuant to section 4—6 of the Illinois Probate Act of 1975 (Probate Act), and that the testator’s estate should pass in its entirety to his other stepdaughter, legatee Edith L. Hardy. The executor of the estate, George W. Williams, appeals the order of the probate court of Cook County distributing the assets of the estate.

The executor appeals the court’s order contending that the provision of the Probate Act providing for the lapsing of the stepgrandson’s legacy is unconstitutional as well as violative of the Civil Rights Act of 1871 (42 U.S.C. §1983 (1988)). The State’s Attorney of Cook County has filed a brief contending that the executor’s arguments are without merit. At issue is a provision of the Probate Act which makes void a legacy to a person or his or her spouse who attests to a will unless the will is otherwise duly attested by a sufficient number of witnesses provided by the Probate Act. Ill. Rev. Stat. 1989, ch. 110½, par. 4—6.

The pertinent provision of the disputed section of the Probate Act reads as follows:

“(a) If any beneficial legacy or interest is given in a will to a person attesting its execution or to his spouse, the legacy or interest is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person and he may be compelled to testify as if the legacy or interest had not been given, but the beneficiary is entitled to receive so much of the legacy or interest given to him by the will as does not exceed the value of the share of the testator’s estate to which he would be entitled were the will not established.” Ill. Rev. Stat. 1989, ch. 110½, par. 4—6(a).

The facts in this case are undisputed.

Edythe Louise Webster predeceased her spouse; John R. Webster. The will of John Webster was admitted to probate in 1988. It provided, among other things, that in the event his spouse predeceased him all his property would go to his stepdaughters, Edith L. Hardy and Betty Hardy Williams. Should only one stepdaughter survive him and his spouse, all the property should go to the surviving stepdaughter. The will also provided that all the property not otherwise effectively disposed of by the will go to his stepgrandson, Robert Bruce Williams.

Attesting the will were two witnesses: (1) George W. Williams, the husband of Betty Hardy Williams, and (2) Muriel E. Williams, the wife of stepgrandson Robert Bruce Williams. George Williams was named executor of the estate. He was unable to receive a fee under section 4 — 6 of the Probate Act due to the fact that he had also served as an attesting witness. Edith Hardy claimed that the legacies were void under the aforecited section of the Probate Act and that Webster’s intent was to create a class gift to his two stepdaughters. The county contended that the legacies to Betty and Robert Williams lapsed under the terms of the Probate Act and the lapsed legacies should be distributed to Webster’s heirs. The trial court ruled that the legacies did lapse and that Webster intended to create a class gift to his stepdaughters, Edith Hardy and Betty Williams. Consequently, the trial court ordered the entire legacy go to Edith Hardy, the sole survivor of that class. The executor asserted that the aforecited section of the Probate Act was unconstitutional. The trial court rejected the executor’s argument. Subsequently, the executor filed this timely appeal.

For the following reasons, we affirm the decision of the trial court.

The executor raises the following arguments in support of his contention that section 4 — 6 of the Illinois Probate Act is, on its face, and, as applied to the estate of John R. Webster by the circuit court, unconstitutional:

(1) Section 4—6 is a bill of attainder;
(2) Section 4—6 creates a classification among persons between whom there are no real and substantial differences;
(3) Section 4—6 creates a “suspect” classification which unreasonably, arbitrarily, and invidiously discriminates against the marital relationship;
(4) Section 4—6 violates the procedural due process rights of certain legatees by imposing upon them disabilities without first providing them the opportunity to be heard in defense;
(5) Section 4—6 creates an irrebuttable presumption of overreaching duress, or undue influence respecting a class of legatee without the requirement of any proof of wrongdoing, or forum; and
(6) Section 4—6 is special legislation, a regulatory law that unfairly distributes burdens and benefits to no one.

The executor further argues that section 4 — 6 violates the Civil Rights Act of 1871.

I

First, the claim that section 4—6 of the Probate Act is a bill of attainder is without merit. Article I, section 10, of the United States Constitution prohibits a State from, among other things, passing any bill of attainder. “Bills of attainder are legislative acts inflicting punishment on certain persons without judicial trials.” Pickus v. Board of Education (1956), 9 Ill. 2d 599, 611, 138 N.E.2d 532.

The section of the Probate Act attacked does not punish anyone without a trial; it merely regulates the drafting of wills. It is more akin to the regulation of governmental contracts by precluding the award of such contracts to people involved in the bribery of public officials. Such regulatory acts are not bills of attainder. (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.) The fact that a statute is narrowly focused does not make it a bill of attainder if it does not inflict punishment without judicial trial. (People v. Gurell (1983), 98 Ill. 2d 194, 456 N.E.2d 18.) The section attacked does not punish stepchildren or their spouses; it merely provides for a regulation as to proper attestors to a will. If the will had been attested to by two disinterested persons unrelated by marriage to the legatees, their gifts would not have lapsed. Section 4—6 of the Illinois Probate Act is not a bill of attainder.

II

The executor’s argument that section 4—6 of the Probate Act creates an unconstitutional classification is also without merit. The basis for this argument appears to be that the Probate Act singles out witnesses having a marital relationship with a legatee and disregards and ignores other relationships such as live-ins and lovers. There is no prohibition against classifying by the legislature unless there is no rational basis for the classification. The statute under attack does not preclude spouses of stepdaughters or stepgrandsons from inheriting or from being a beneficiary of a will. It merely regulates the witnessing of a will to prevent or deter fraud and undue influence. Smith v. Goodell (1913), 258 Ill. 145, 101 N.E. 255.

A statutorily valid will must be attested to by at least two credible persons. (Ill. Rev. Stat. 1989, ch. 110½, par. 4—3.) The expression “credible” witness means competent witness. (Scott v. O’Connor-Couch (1915), 271 Ill. 395, 111 N.E. 272.) The test of interest affecting one’s competency as a witness to a will is whether he will gain or lose pecuniarily thereby. (Jones v. Grieser (1909), 238 Ill. 183, 87 N.E. 295.) Attesting witnesses are regarded as persons placed around the testator in order that no fraud may be practiced upon him in the execution of the will and to judge his capacity. (In re Estate of Weaver (1977), 50 Ill. App. 3d 223, 365 N.E.2d 1038, 1044; Smith v. Goodell (1913), 258 Ill. 145, 101 N.E. 255.) Not only a legatee, but also a person named as executor or trustee is prevented from attesting to a will (see Fearn v. Postlethwaite (1909), 240 Ill. 626, 88 N.E. 1057). The law favors admission of a will to probate in order that administration of estate may proceed, but requirements of the statute are mandatory and must be complied with. Ill. Rev. Stat. 1989, ch. 100½, par. 6—4(a).

The statute must be applied such that if the will is duly attested by two credible, disinterested witnesses, then the witnesses who have an interest under the will may take. (In re Estate of Watts (1979), 67 Ill. App. 3d 463, 384 N.E.2d 589.) The policy of the statute is not to deny the right of spouses or others to attest the will, but rather it is to require two credible witnesses to prevent attesting witnesses from bootstraping the interests of one another. (In re Estate of Watts (1979), 67 Ill. App. 3d 463, 465, 384 N.E.2d 589, 590.) The objective of the legislation is the assurance of the credibility of witnesses to a will. Further, section 4—6 provides a vehicle whereby a will may still be upheld as valid even if the will gives an attesting witness an interest. Thus, we conclude that the classification is proper and not constitutionally defective.

Ill

Third, the executor argues that the statute creates a suspect classification which unreasonably, arbitrarily and invidiously discriminates against marital relationships. This argument is also without merit.

In considering this question, we must first define the proper test to be applied to the challenged legislation. At oral arguments appellant conceded that the appropriate test was something less than strict judicial scrutiny, but maintained that the appropriate test was more than the rational basis test. The county, on the other hand, claims that the statute in question does not involve a suspect classification in that it is not premised upon race or national origin, nor is any fundamental right involved; therefore, the rational basis test should apply in determining whether equal protection has been violated in creating the classification.

Suspect classes are classifications created along lines of race or national origin. (Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459.) Strict judicial scrutiny will only be imposed when a classification is based on a suspect trait. (Mathews v. Lucas (1976), 427 U.S. 495, 49 L. Ed. 2d 651, 96 S. Ct. 2755.) In matters relating to economics or social welfare, the proper test in determining whether a classification violates the equal protection clause is whether the classification is reasonable and whether it has a fair and substantial relation to the object of the legislation so that all persons similarly situated are treated alike. (Reed v. Reed (1971), 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251.) Thus, the standard for review regarding the constitutionality of section 4—6 is whether there is some rational basis for the different treatment of witnesses whose spouses are legatees under the will and whether that treatment is related to a legitimate State objective.

Illinois courts have held that the spouse of a legatee or devisee under a will is not a competent attesting witness to that will. (Sloan v. Sloan (1900), 184 Ill. 579, 56 N.E. 952; Fearn v. Postlethwaite (1909), 240 Ill. 626, 88 N.E. 1057.) The statute at issue does not invidiously discriminate against anyone. Discrimination between husband and wife in the role of a witness has been the law since the common law was adopted. For example, in criminal cases, with limited exceptions, a husband and wife were incompetent to testify for or against each other. (People v. Palumbo (1955), 5 Ill. 2d 409, 125 N.E.2d 518.) The disqualification was rested in part upon their interest, in part upon the common law notion of the unity of a husband and wife, and in part upon a desire to promote domestic tranquility. (People v. Palumbo (1955), 5 Ill. 2d 409, 412-13, 125 N.E.2d 518.) Although this rule is largely relaxed today, some semblence of it still remains in our Illinois Code of Civil Procedure. (See Ill. Rev. Stat. 1989, ch. 110, par. 8—801.) Moreover, the statute at issue does not preclude a husband or wife from acting as a witness to his or her parents’ or stepparents’ will; it merely provides that if one does witness the will and there are insufficient competent or disinterested witnesses, his or her legacy is lapsed.

The Probate Act further supports the idea that the marital relationship is unique. In the event of the death of one’s spouse, a surviving spouse is always entitled to receive a portion of the testator’s estate. Whether or not a will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: one-third of the entire estate if the testator leaves a descendant, or one-half of the entire estate if the testator leaves no descendant. (Ill. Rev. Stat. 1989, ch. 100½, par. 2—8(a).) No individual other than a surviving spouse is always entitled to receive a portion of a testator’s estate.

Classifications are not per se unconstitutional. Their constitutionality depends upon the character of the classification and its relation to legitimate legislative aims. (Mathews v. Lucas (1976), 427 U.S. 495, 49 L. Ed. 2d 651, 96 S. Ct. 2755.) The equal protection clause of the fourteenth amendment does not deny the State the power to treat separate classes of persons differently. The clause only prohibits States from legislating different treatment to classes of persons based on criteria wholly unrelated to the objective of that statute. (Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029.) Nothing in the record suggests that the Probate Act is only applied to a certain class of people based on their race, creed, or origin; by its terms, the Probate Act applies to all persons similarly situated, i.e., legatees and/or their spouses.

Relationship of a husband and wife is a unique relationship granted privileges in our society. As a result of the desire to promote that relationship, public policy dictates that spouses are not viewed as competent witnesses to attest to the execution of a will in which their spouse is to receive an interest. The right to make a will, and the right to take property under a will, exist only by virtue of the statutes and are entirely subject to their provisions. (Robertson v. Yager (1927), 327 Ill. 346, 158 N.E. 709.) Nothing in the Probate Act precludes legatees or their spouses from taking under a will; the Probate Act merely provides that a will must be properly attested by two credible witnesses. In this case, the will was not attested by two disinterested witnesses as required by the statute; consequently, the interests of Betty Hardy Williams and Robert Bruce Williams were properly found to be void by the trial court.

IV

Fourth, the executor argues that section 4—6 of the Probate Act violates the procedural due process rights of certain legatees by imposing upon them disabilities without first giving the legatees an opportunity to be heard in defense. This argument also lacks merit. The starting point in any due process analysis is a determination of whether a protectable interest is present, for if there is not, no process is due. Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 294, 395 N.E.2d 1376.

“It is fundamental that the constitutional guarantees of procedural due process only become operative where there is an actual or threatened impairment or deprivation of ‘life, liberty or property.’ ” (Polyvend v. Puckorius (1979), 77 Ill. 2d at 293-94, 395 N.E.2d 1376; U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Procedural due process safeguards are triggered only when the property rights have vested. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) The Supreme Court concluded in Roth, “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.) In other words “[t]he Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” (Roth, 408 U.S. at 576, 33 L. Ed. 2d at 560, 92 S. Ct. at 2708.) A legacy under a will is not a vested property right; it is a future interest. Section 4—6 of the Probate Act does not violate the procedural due process rights of any legatee.

V

Fifth, the executor charges that section 4—6 creates an irrebuttable presumption of overreaching, duress, or undue influence without the requirement of proof. The requirement creates no such presumption. It merely relates to the ability of a witness to testify and, subsequently, his or her spouse’s right to receive a legacy under the will. In this respect it is not different than the Illinois Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8—201). That act, often attacked, and with many exceptions, disqualifies the testimony of a person as to conversations with a deceased, or to any event which took place in the presence of the deceased.

VI

The next attack on the legislation is that the statute is special legislation that unfairly distributes burdens and benefits. A regulatory measure classifying persons or objects will be upheld if there is a reasonable basis for the differentiation. (Yellow Cab Co. v. Jones (1985), 108 Ill. 2d 330, 483 N.E.2d 1278.) Here the basis of the legislation is the prevention of fraud or duress in the execution of a will. As previously pointed out, that is a rational basis sufficient to overcome the charge of special legislation or unfair classification.

The standards used in determining an equal protection challenge are to be utilized in determining a challenge to the statute under the special legislation provisions of our constitution, and a statute challenged as special legislation will be upheld if the differentiation it makes between similarly situated persons bears a rational relationship to a legitimate legislative purpose. (People v. Gurell (1983), 98 Ill. 2d 194, 206, 456 N.E.2d 18; see also Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 124, 412 N.E.2d 151; Anderson v. Wagner (1979), 79 Ill. 2d 295, 314, 402 N.E.2d 560; S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76-77, 329 N.E.2d 213.) The special legislation section of the Illinois Constitution allows differentiations between similarly situated persons if the classification bears a rational relationship to a legitimate legislative purpose. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 124, 412 N.E.2d 151, citing Anderson v. Wagner (1979), 79 Ill. 2d 295, 315, 402 N.E.2d 560.) We held above that the legislation has a rational relationship to a legitimate State purpose; therefore, we find that section 4—6 of the Probate Act does not constitute special legislation.

Finally, the executor contends that the legislation violates the Civil Rights Act of 1871 (42 U.S.C. §1983 (1988)), in that it strips legatees married to persons who witness the execution of a will of their protected liberty and property interests. He cites no case law in support of this proposition; obviously, none could be found.

Section 1983 provides in pertinent part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (42 U.S.C. §1983 (1988).)

Two allegations must be made to state a claim under that provision. “First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” (Gomez v. Toledo (1980), 446 U.S. 635, 640, 64 L. Ed. 2d 572, 577, 100 S. Ct. 1920, 1923.) The executor has not properly stated a cause of action, nor do we believe that any exists for a violation of civil rights.

The purpose of the legislation is to prevent fraud. Since the legislation has a rational basis and it applies to all persons similarly situated, it violates neither the civil rights legislation, equal protection, nor any other constitutional provision the mind of an imaginative lawyer can conjure.

A statute is presumed valid, and the burden is on the party challenging its validity to prove that it is unconstitutional. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 50, 416 N.E.2d 1082; Jaris v. Public School Teachers’ Pension & Retirement Fund (1974), 58 Ill. 2d 15, 19, 317 N.E.2d 51.) In our judgment that burden has not been met. No matter how harsh the result may seem in the instant case, the statute at issue was enacted to prevent fraud, and we find that the statute is constitutional.

The record reflects that John Webster and his wife, Edythe, executed their wills at the same time. Four witnesses were present. Rita Bell Phelps and Martha B. Boles signed the will of Edythe Webster, while Muriel Williams and George Williams signed the will of John Webster. It is unfortunate that the spouses of Webster’s legatees were the attesting witnesses to John Webster’s will, for if Rita Bell Phelps and Martha B. Boles had also attested to John Webster’s will, neither Edith Williams’ nor Robert Williams’ legacy would have lapsed. This unfortunate scenario stresses the importance of carefully choosing the attesting witnesses to a will. We note, although we cannot dictate anyone’s moral duty, nothing contained in our laws or this opinion prohibits Edith Hardy from following the wishes of her deceased parents.

Accordingly, for the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

GORDON and McNULTY JJ., concur.


text:
    ADRIAN ROGERS, Plaintiff-Appellant, v. ENVIRODYNE INDUSTRIES, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2826
    Opinion filed June 7, 1991.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Mark Novak, of counsel), for appellant.
    Haskell & Perrin, of Chicago (Stephen 0. Sonderby, Daniel P. Caswell, and Peter G. Bora, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Adrian Rogers (Rogers) appeals the September 6, 1990, order of the circuit court of Cook County granting defendant Envirodyne Industries, Inc. (Envirodyne Industries), summary judgment in its favor. Although Envirodyne Industries was just one of several defendants named in plaintiff’s complaint, which alleged certain violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) and negligence, and the matter still pends in the trial court as to some of the remaining defendants, this court has jurisdiction over the appeal because the trial court included in the order the language that there was no just cause to delay enforcement and appeal. 134 Ill. 2d R. 304(a).

For the purposes of the summary judgment motion, the undisputed facts are that on March 14, 1980, Rogers was an ironworker employed by Brandt Construction Company, working on the construction of a pipe rack at the Wisconsin Steel Plant in Chicago, Illinois. While so employed, Rogers was injured when the rung of a ladder he was climbing broke and he fell to the ground. Rogers had borrowed the 20- to 25-foot wooden ladder from the John Mohr & Sons Construction Co., another company which was also doing work at the plant.

Rogers filed his initial complaint on December 10, 1980, naming Wisconsin Steel Company (Wisconsin Steel), Envirodyne Engineers Services, Inc. (Envirodyne Engineers), WSC Corp., EDC Holding Company, Envirodyne Industries, Inc., and John Mohr and Sons Construction Co. (Mohr) as defendants. The complaint was amended on July 20, 1987, to include Envirodyne Construction Services, Inc. (Envirodyne Construction), as a party defendant.

Rogers alleged in his complaint that each of the defendants “owned and/or were in charge of” the construction site within the meaning of the Illinois Structural Work Act, and that they were each in wilful violation of the Act by failing to provide him with safe equipment with which he could perform his work. (Count I.) Rogers also alleged that each of the defendants was guilty of common law negligence in that they failed to inspect, operate, manage, maintain, control and supervise the premises and that, as a proximate result, he was injured. (Count II.)

On August 19, 1988, Envirodyne Industries filed a motion for summary judgment, claiming that it had not been in charge of, nor had control over, the jobsite. Accompanying the motion was an affidavit which explained that Envirodyne Industries was merely a holding company without any employees engaged in the construction business. The affidavit stated that at the time of the alleged incident, Envirodyne Industries owned all the stock of Wisconsin Steel and so Wisconsin Steel was a wholly owned, separate, subsidiary corporation of Envirodyne Industries. Envirodyne Industries was also the parent corporation of Envirodyne Engineers, another wholly owned, separate, subsidiary corporation, which had been hired to provide the specifications for the reconstruction project at Wisconsin Steel. Envirodyne Construction was a separate, subsidiary corporation of Envirodyne Engineers and it provided the management services for the project.

In opposition to the summary judgment motion, plaintiff submitted the deposition testimony of A1 Romanek, a superintendent for Mohr; the deposition testimony of William Heilman, plaintiff’s proffered expert; and the affidavit of Jerry Sikora, another ironworker at Wisconsin Steel. Upon the motion of defendant, the trial court struck the above-mentioned depositions and affidavit submitted by plaintiff and then granted defendant summary judgment as to both counts of the complaint.

Plaintiff appeals, contending that there exists a genuine issue of material fact as to defendant’s liability under either the Structural Work Act or common law negligence theories and that the trial court erred by striking the deposition testimony and affidavit. We affirm.

When deciding whether a trial court properly granted summary judgment, this court must review the pleadings, depositions, affidavits and admissions on file, to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(c); O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 580, 543 N.E.2d 546.) Evidence should be construed strongly against the movant and liberally in favor of the opponent. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50.

In the present case plaintiff apparently does not dispute that Envirodyne Industries was the parent corporation and that Envirodyne Construction and Envirodyne Engineers were separate, albeit related, corporate entities. Neither does plaintiff urge this court to “pierce the corporate veil” to impute the actions of the subsidiaries to the parent corporation. In fact, if this were the case, no doubt the stricken testimony would have been admissible to create a question of fact as to this matter. But that was not the issue before the trial court. Rather, plaintiff alleged, and continues to argue, that Envirodyne Industries’ negligence or its wilful violation of the Illinois Structural Work Act was the proximate cause of injuries he sustained at the construction site. Consequently, it was plaintiff’s burden to show that Envirodyne Industries was “in charge of” the jobsite and committed a wilful violation of the Act. Lyle v. Sester (1981), 103 Ill. App. 3d 208, 430 N.E.2d 699.

Although these questions are generally ones of fact, where there is insufficient evidence to establish an issue of fact, judgment may be entered in defendant’s favor. (Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 534 N.E.2d 680; Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345.) The key issue, then, in this case is whether there existed a genuine issue of fact as to whether Envirodyne Industries was “in charge of” the jobsite.

According to the affidavit and deposition testimony submitted by Envirodyne Industries, it was the owner of Wisconsin Steel, which was a separate corporate entity. Thus, Envirodyne Industries was, only indirectly, the owner of the premises where plaintiff’s injury took place. However, even if we were to consider Envirodyne Industries to be the owner of the premises, mere proof of ownership of the premises does not necessarily impute liability. (Johnson v. Commonwealth Edison Co. (1985), 133 Ill. App. 3d 472, 478 N.E.2d 1057.) Rather, liability must be premised either upon the fact that the owner maintained direct control or supervision over the work that caused the injury or that it exercised the requisite control over the overall worksite to be held responsible for ensuring worker safety. (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348.) The totality of the circumstances is what will determine whether an entity maintained sufficient control to be deemed “in charge,” but some factors to be considered are whether it: (1) supervised or controlled the work; (2) retained the right to supervise and control the work; (3) participated in the ongoing activities at the worksite; (4) supervised and coordinated the subcontractors; (5) took responsibility for safety precautions at the site; (6) had authority to issue change orders; (7) had the right to stop the work; (8) owned the equipment; (9) was familiar with construction customs and practices; and (10) was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Simmons v. Union Elec tric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946; Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 445 N.E.2d 39.

In this case, plaintiff attempted to show that Envirodyne Industries participated in the ongoing activities at the worksite and maintained control and supervision over the work through the presence of its employees or representatives. To this end, it provided the deposition testimony of Al Romanek and William Heilman, as well as the affidavit of Jerry Sikora.

Jerry Sikora’s affidavit states:

“1. That affiant is a Journeyman structural iron worker and was employed at the construction project going on at the Wisconsin Steel plant on 3/14/80.
2. That affiant observed individuals with the word ‘Envirodyne’ on their hardhats during the time he was working on said project.
3. That affiant heard individuals identify themselves as working on behalf of Envirodyne Industries at the construction site and that these individuals would, on occasion, give orders to the contractors employees [sic] concerning the scheduling and the manner of the work.
4. That based upon affiant’s observations at the jobsite and based on the statements made by representatives on behalf of Envirodyne Industries, it was clear that Envirodyne Industries was involved in the supervision of the work at the construction site.”

However, this affidavit conflicts with Sikora’s earlier deposition testimony, wherein he states:

“Q. Okay, And Envirodyne — Who do you mean when you say Envirodyne?
A. Well, the people — the general contractors.
Q. Okay, Do you know — Can you remember any names?
A. John Moore and Envirodyne, maybe Wisconsin Steel. Sometimes they had—
Q. Okay, When you said some people from engineering asked you to move stuff, was that Wisconsin Steel Engineering?
A. I don’t know if — I can’t remember if they were there. I know Envirodyne was there.
Q. Do you know the whole name of Envirodyne because there are several Envirodynes?
A. This would be the construction department probably.
Q. Would that be Envirodyne Construction Services?
A. It could be. I am not sure.
Q. Have you heard of Envirodyne Industries?
A. No.”

When reading Sikora’s affidavit in conjunction with his earlier deposition testimony, it is clear that, at best, he was aware that persons who represented themselves as employees of “Envirodyne” were present at the jobsite and exercised some degree of control over it. However, it is undisputed that Envirodyne Engineers was hired to provide engineering consultation on the project and that Envirodyne Construction was hired to provide management services for the project, and that employees from both of these entities were present on an ongoing basis at the jobsite. Thus, Sikora’s observation of the word “Envirodyne” on hardhats, coupled with his lack of awareness of the separate corporate identities of these Envirodyne companies, could not establish the presence of Envirodyne Industries at the worksite and his testimony to that effect was not competent.

We next consider Romanek’s deposition, which was submitted for the purpose of establishing that Bill McHenry, an engineer on the worksite who appeared to have been in overall charge of the worksite, was an employee of Envirodyne Industries. However, we note that Romanek's deposition did not establish that McHenry was employed by Envirodyne Industries. In the deposition, Romanek stated:

“Well, I don’t know what you mean by ‘Wisconsin Steel’ and ‘Envirodyne.’ Where do you really define the two?”

And:

“It was my understanding that Wisconsin Steel was only the name of the plant. Envirodyne was — owned Wisconsin Steel; so basically, anybody that worked for engineering when they took over, they were employed by Envirodyne. So unless there’s something other than that, I don't know.”

Romanek’s deposition shows that although he was under the impression that McHenry worked for Envirodyne Industries, he was unaware of the corporate structures which separated Envirodyne Industries from its many subsidiaries.

Additionally, Romanek’s deposition directly conflicted with the deposition testimony of defendant’s witness, Stewart Mishlove, the treasurer and a member of the board of directors of Envirodyne Engineers, who unequivocally established that McHenry was an employee of either Envirodyne Engineers or its wholly owned subsidiary, Envirodyne Construction, and not an employee of Envirodyne Industries. Thus, once again, plaintiff’s purported evidence that Envirodyne was exercising control over the worksite was based upon conjecture rather than actual knowledge. Evidence submitted in opposition to motions for summary judgment must consist of facts, as opposed to conclusions, which are not to be considered. O'Rourke v. Oehler, 187 Ill. App. 3d at 585.

Finally, we consider the deposition testimony of William Heilman. Heilman was aware of the separate corporate structure of Envirodyne Industries since he had reviewed all of the depositions and affidavits before giving his “expert opinion” that Envirodyne Industries should be considered “in charge” of the worksite.

Initially, we question the necessity of an expert to provide an opinion on a legal matter. Heilman’s deposition testimony was not offered to clarify points on safety, which is his area of expertise, but rather to make a legal conclusion that Envirodyne Industries maintained sufficient control, by virtue of its ownership of the property. However, as stated earlier, mere ownership of the property is not sufficient and, therefore, Heilman’s “expert opinion” was contrary to established law.

For all the reasons stated above, we find that the trial court did not err by striking the deposition testimony and affidavit submitted by plaintiff, nor did the trial court err by granting defendant summary judgment. Plaintiff failed to establish by any competent testimony that Envirodyne Industries participated in the construction project at the Wisconsin Steel plant in such a manner that it would be considered “in charge” for purposes of the Structural Work Act. Nor did it appear that Envirodyne Industries’ actions gave rise to a duty owed to plaintiff.

The order of the circuit court of Cook County granting summary judgment in favor of Envirodyne Industries and against plaintiff Rogers is hereby affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.

       Envirodyne Construction was later dismissed with prejudice based on plaintiff’s lack of diligence in serving it and plaintiff’s failure to name it in the action within the limitations period. The dismissal of Envirodyne Construction is not a part of this appeal.


author: JUSTICE O’CONNOR

text:
    OAK PARK HOSPITAL, Plaintiff-Appellant, v. EUGENE SMUDA et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1359
    Opinion filed June 10, 1991.
    Lawrence Friedman Law Offices, of Chicago (Jerry M. Salzberg, of counsel), for appellant.
    No brief filed for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Oak Park Hospital, appeals from an order of the circuit court of Cook County, in a citation proceeding which, in effect, barred plaintiff’s attempt to collect $558.10 from defendant Eugene Smuda for medical services. The circuit court held that the Illinois Industrial Commission had exclusive jurisdiction over defendant Eugene Smuda, who claimed at the citation examination that the medical services rendered by plaintiff were part of a pending workers’ compensation claim. Plaintiff argues that it obtained a default judgment, and therefore, it is entitled to interrogate defendant Eugene Smuda regarding his nonexempt assets.

Defendants have failed to file a brief as appellees, so this cause shall be taken for consideration on the record and plaintiff’s brief only. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The Workers’ Compensation Act (Act) is designed to provide financial protection to workers for accidental injuries arising out of and in the course of employment. (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) The Act imposes liability without fault upon the employer and, in return, prohibits common law suits by employees against the employer. (Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222.) The jurisdiction exercised by the circuit court under the Act is a special statutory jurisdiction, and the parties seeking a hearing in the circuit court under the Act must comply with all the conditions prescribed. (Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 565 N.E.2d 724.) Section 19(g) of the Act provides in absolute terms that, upon presentation of a certified copy of an award or decision by the Illinois Industrial Commission to the circuit court, and where no proceedings for review are pending, the court shall render a judgment in accordance therewith. (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).) The circuit court’s inquiry, however, is limited to a determination of whether the requirements of section 19(g) have been met. Evans v. Corporate Services, 207 Ill. App. 3d 297, 565 N.E.2d 724.

In the present case, the circuit court believed that it had no jurisdiction to consider the matter because defendant had claimed in the citation proceeding that the medical services were part of a workers’ compensation claim and no award or decision had been issued by the Industrial Commission. Therefore, the court concluded that plaintiff was not entitled to examine defendant as to his nonexempt assets in a citation proceeding. However, the proceedings of the Industrial Commission involve the employee and the employer, and we believe that this should not bar a hospital from pursuing its own independent claim against a person receiving medical services from a medical provider. Although the Industrial Commission has the power to determine the reasonableness and fix the amount of any fee charged by a hospital for any service performed in connection with the Act, the statute does not state that the hospital shall be restricted in its avenues of collection from the recipient of medical services. Ill. Rev. Stat. 1989, ch. 48, par. 138.16.

For the foregoing reasons, the order of the circuit court is reversed and the cause remanded for further proceedings consistent with this order.

Reversed and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY MURFF, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—2563
    Opinion filed June 11, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Veronica Calderon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant appeals his jury conviction of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14), raising as issues whether (1) the State used its peremptory challenges to systematically exclude jurors based on race, (2) the circuit court improperly admitted prejudicial evidence, and (3) defendant was proved guilty beyond a reasonable doubt. We affirm, for reasons which follow.

At trial, I.A. testified that at around 11 p.m. on August 10, 1987, while walking home alone, she saw defendant, whom she had known for several years. Defendant offered to share his bottle of wine, but I.A. declined. After talking for a short time, defendant grabbed I.A. by the arm and dragged her 20 to 25 feet into an apartment building on south State Street. He took her to a back hallway on the first floor, where they struggled on the ground. Defendant managed to pull I.A.’s pants down, and he struck her face several times. He lowered his own trousers and inserted his penis into her vagina. Defendant also placed his penis in I.A.’s mouth. Afterwards, he apologized and asked I.A. not to tell anyone what had happened.

I.A. ran to her apartment and telephoned her sister, D.A. She also called the police, but did not speak to an officer that night. She was very distraught and cried herself to sleep. D.A. arrived the next morning and summoned the police again. When an officer arrived, I.A. reported defendant’s name and physical description and showed the officer where the incident had occurred. She then went to the hospital for treatment of her injuries. On cross-examination, I.A. denied that she had been drinking before the incident.

D.A. testified that she received a call from I.A. after 11 p.m. on August 10, 1987. I.A. was crying, her speech was slurred, and she said that defendant had raped her. D.A. went to LA.’s apartment the next morning where she called the police. I.A. was crying and had slept in her clothes, which were visibly dirty.

Chicago police officer Anthony Mickel went to I.A.’s apartment on the morning of August 11, 1987. I.A. had a bruise on her forehead, was noticeably upset, and wore dirty clothes. She described the incident and showed Mickel where it had occurred. She also gave him defendant’s telephone number.

Samples of I.A.’s saliva and vaginal fluid were taken at the hospital after the incident. Further, blood and saliva samples were taken from both I.A. and defendant prior to trial. Pamela Fish, a serologist in the police department crime lab, testified that she analyzed the samples and found spermatozoa in the vaginal smear taken from I.A. following the incident, but not in the oral smear. Fish also conducted tests to determine the blood type of the bodily fluids on the vaginal swab. Based on her analysis, she concluded that defendant was in the group of people that could have deposited semen in I.A. On cross-examination, however, Fish admitted that 25% of the population has blood with similar characteristics and could also be included in this group.

The State rested, and defendant’s motion for a directed verdict was denied.

Defendant testified in his own defense. He stated that he saw I.A. on the night of the incident with several people. He talked to her for almost an hour, and they shared a bottle of wine. When two men approached with more wine and began talking to I.A., defendant left and eventually went home. He denied ever having placed his penis in LA.’s mouth or vagina and said he did not assault her.

The jury found defendant guilty of both counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14.) The court sentenced defendant to 15 years in the custody of the Department of Corrections.

I

Defendant, who is black, first alleges that he should have been granted a mistrial because the State used its peremptory challenges to exclude black jurors in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

During voir dire, the State peremptorily challenged a total of three prospective jurors, all of whom were black. After the jury was sworn, defense counsel moved for a mistrial claiming that the State had systematically excluded blacks from the jury. Before determining whether defendant had made out a prima facie case of purposeful discrimination, the court invited explanation from the State as to the bases for its peremptory challenges. At no time prior to its ruling on the motion did the court determine whether defendant had established a prima facie case.

Batson requires that defendant make a prima facie case of discrimination by relying on the fact that peremptory challenges facilitate discrimination and by showing that (1) defendant belongs to a cognizable racial group, (2) the State peremptorily challenged venire members who belonged to that group, and (3) these facts “and any other relevant circumstances raise an inference” of purposeful racial discrimination. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-88, 106 S. Ct. at 1721-23.) As a general rule, however, the mere number of blacks peremptorily challenged, without more, will not establish a prima facie case. People v. Mahaffey (1989), 128 Ill. 2d 388, 413-14, 539 N.E.2d 1172.

Our supreme court has cautioned against collapsing what ought to be a methodical Batson hearing into an undifferentiated review of defense and State contentions as was done in the present case. (See People v. Hope (1990), 137 Ill. 2d 430, 456-57, 560 N.E.2d 849.) The State is not allowed to interrupt the prima facie hearing stage by tendering reasons for its peremptory challenges, as those reasons “would constitute a thumb on the scales that weigh the prima facie submission, which would undermine the very concept of a prima facie case as outlined in Batson." (People v. Garrett (1990), 139 Ill. 2d 189, 201, 564 N.E.2d 784.) Further, the circuit court’s invitation for State explanations does not create a presumption that defendant had established a prima facie case. Garrett, 139 Ill. 2d at 201-02.

In Garrett, which is similar to the case sub judice, defense counsel moved to dismiss the jury on the ground that the State had used five of its six peremptory challenges to exclude blacks, but did not cite any other circumstances that arguably might have supported a prima facie case of racial discrimination. The circuit court held a “consolidated hearing” at which it considered the State’s explanations and defendant’s own justifications for striking venire members, but never expressly found whether defendant had established a prima facie case. Defendant’s motion to strike the jury was denied. The supreme court held that in evaluating a prima facie submission, the State’s explanations of its peremptory challenges were irrelevant, as were defendant’s explanations of his own challenges to black venire members. All that remained, therefore, was a list of black venire members challenged by the State, and that submission was insufficient for the circuit court reasonably to find that a prima facie case had been established. Garrett, 139 Ill. 2d at 203-04.

Similarly, a consolidated hearing was held in this case at which the State proffered explanations for its challenges before the court determined whether a prima facie case had been established. If the State’s explanations are disregarded, the only remaining evidence of purposeful discrimination is a brief exchange between defense counsel and the circuit court:

“[DEFENSE COUNSEL]: Judge, we would like at this time to make a motion for mistrial based on the Battson [sic] case in that the State systematically excluded from the jury *** three prospective jurors, all of whom were black.
* * *
THE COURT: Is there anything further that you wish to articulate that would suggest that this was purposeful discrimination based on race.
[DEFENSE COUNSEL]: Nothing further, Judge.”

Defense counsel’s submission is insufficient for the circuit court reasonably to find that a prima facie Batson case had been established. The mere fact that some black venirepersons are challenged and others are accepted by the State, without more, cannot constitute even a pattern of such challenges. (Garrett, 139 Ill. 2d at 204.) Defendant has not offered, nor have we found in our review of the record, any other evidence which reasonably could have implied purposeful racial discrimination. The victim, as well as defendant, is black. Further, the circuit court noted that 3 of the 12 selected jurors were black. See People v. Fox (1988), 177 Ill. App. 3d 602, 614-15, 532 N.E.2d 472, appeal denied (1989), 125 Ill. 2d 569.

Although we do not approve of the consolidated Batson hearing held below, there is no reason to remand this case for any further proceedings. Defendant failed to establish a prima facie case when he had a full opportunity to do so.

Assuming, arguendo, that defendant could be deemed to have established a prima facie case of purposeful discrimination in jury selection, his Batson argument still fails. The State provided race-neutral explanations for each of its peremptory challenges.

The State must explain its peremptory challenges in clear, reasonably specific, legitimate, and nonracial terms in order to dispel the presumption created by a prima facie case. (Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1724 n.20.) It is then incumbent upon the circuit court to make a sincere and reasoned attempt to evaluate the State’s explanations. (Hope, 137 Ill. 2d at 467.) Accordingly, the court’s findings are entitled to great deference and will not be reversed on appeal unless they are against the manifest weight of the evidence. People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357.

Here, the State excluded one prospective juror who failed to disclose that previously he had been charged with aggravated battery. Although it had not allowed the State’s challenge for cause on this point, the circuit court properly concluded that there existed a race-neutral basis for his peremptory exclusion from the jury.

Another prospective juror was dismissed because the assistant State’s Attorney was dissatisfied with her demeanor. Although explanations which focus upon a venireperson’s body language or demeanor must be scrutinized closely (Harris, 129 Ill. 2d at 176), such challenges may constitute legitimate and racially neutral reasons for exclusion (People v. Young (1989), 128 Ill. 2d 1, 20, 538 N.E.2d 453). The circuit court was in the best position to judge both that person’s demeanor and the prosecutor’s sincerity. The State’s challenge, found to be legitimate, was not against the manifest weight of the evidence.

The last subject prospective juror was challenged because her “body language was such she is a very strong person. *** [T]he way she was positioning herself *** indicated to us that she wouldn’t be totally neutral in this case *** [and] she was predisposed against the State.” A prospective juror’s forceful demeanor and hostility toward the State may constitute a racially neutral basis for exclusion from the jury. (People v. Taylor (1988), 171 Ill. App. 3d 261, 267-69, 524 N.E.2d 1216, appeal denied (1988), 122 Ill. 2d 590; People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318.) The court’s acceptance of the State’s explanation as sufficiently race-neutral was not error.

Defendant’s motion for a mistrial was properly denied. The circuit court’s finding of no Batson violation was not against the manifest weight of the evidence.

II

Defendant next challenges the testimony of serologist Pamela Fish as irrelevant and prejudicial. Based upon her analysis of the bodily fluids found on I.A.’s vaginal swab and the blood and saliva samples of both I.A. and defendant, Fish concluded that defendant was within the group of people who could have deposited semen in I.A.’s vagina.

Evidence is relevant where it fairly tends to prove the particular offense charged. (People v. Hall (1989), 192 Ill. App. 3d 819, 823, 549 N.E.2d 681.) The admission of evidence is within the sound discretion of the circuit court, whose ruling will not be overturned absent an abuse of discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696.

In People v. Wright (1989), 186 Ill. App. 3d 159, 542 N.E.2d 367, appeal denied (1989), 128 Ill. 2d 671, the reviewing court held that the results of blood group tests were properly admitted where there existed corroborating evidence of defendant’s guilt. The test in that case showed that the victim’s assailant was part of a group that comprised 40% to 60% of the black male population, and that defendant was part of that group. The court distinguished People v. Schulz (1987), 154 Ill. App. 3d 358, 506 N.E.2d 1343, appeal denied (1987), 116 Ill. 2d 572, in which other evidence linking defendant to the crime was relatively weak, and held that “the victim’s identification of Wright as her assailant served to define the group of possible assailants (one), and the tests supported the identification by showing that he could not be ruled out.” (Wright, 186 Ill. App. 3d at 165.) The results of the blood group tests, therefore, were admissible. See also Hall, 192 Ill. App. 3d at 824; People v. Uzelac (1988), 179 Ill. App. 3d 395, 407-08, 534 N.E.2d 1250, appeal denied (1989), 126 Ill. 2d 566.

Here, the blood test results were properly admitted. Although the group of possible assailants in this case (25% of the general population) is larger than that found in Wright (40% to 60% of the black male population), nevertheless the test results supported I.A.’s previous identification of defendant by showing that he could not be excluded from that group. This corroborative evidence, therefore, is relevant, and the circuit court did not abuse its discretion in admitting it.

Ill

Defendant argues that the State failed to prove him guilty beyond a reasonable doubt.

An accused is guilty of aggravated criminal sexual assault when he commits an act of sexual penetration by the use or threat of force and causes bodily harm to the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(a)(2).) When evidence of a criminal conviction is challenged as to its sufficiency, that evidence is viewed in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Young, 128 Ill. 2d at 49; People v. Westfield (1990), 207 Ill. App. 3d 772, 777, 566 N.E.2d 392.) It is within the province of the jury to determine the credibility of witnesses and the weight given to their testimony. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.

Viewing the evidence in the light most favorable to the State, and cognizant that conflicting testimony is to be resolved by the trier of fact, the State’s evidence is not so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. I.A. testified that defendant dragged her into a building and forcibly removed her pants while she was on the floor. Defendant put his penis in I.A.’s vagina and mouth, and struck her face several times. There is no issue as to defendant’s identification; I.A. had known him since grade school. The corroborating testimony given by D.A. established that I.A. was distraught immediately following the assault, and she remained upset and disheveled on the next morning. Although the chemical evidence did not specifically identify defendant, it did not rule him out as a possible assailant. Notwithstanding defendant’s denial of I.A.’s allegations, a rational trier of fact could have found beyond a reasonable doubt that he committed aggravated criminal sexual assault.

Affirmed.

DiVITO and COCCIA, JJ., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID TICEY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—2815
    Opinion filed June 11, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and John Guinn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

After a bench trial, David Ticey was convicted of criminal sexual assault (use or threat of force), criminal sexual assault (by family member against victim under 18 years old), aggravated criminal sexual assault (causing bodily harm) and aggravated criminal sexual assault (threatening or endangering life) against Sherry Johnson. On appeal, he claims that inasmuch as he was found to have committed only one act, he could be convicted of only one count of aggravated criminal sexual assault, and that there was insufficient evidence to support his convictions. He also charges that he was denied a fair trial (1) because of the admission of a prior inconsistent statement of the victim and (2) because certain questions put to the victim by the prosecutor implied, without sufficient support, that she was coerced into recanting that prior statement. Ticey seeks correction of his mittimus to reflect a conviction of only one count of aggravated criminal sexual assault, or a reversal of his convictions, either outright or with a remand for a new trial.

Johnson testified at trial that at the time of the incident she was living with her mother, her baby, and her brother, Ticey. At around 12:30 a.m. on November 13, 1987, a male entered her room, choked her, stuck his nails into her skin and raped her. The assailant was wearing a condom. Her room was dark except for a light shining from a bathroom. Her mother and baby were there at the time, but Ticey, who had been home earlier, had left. Johnson testified that Ticey was not her attacker. She admitted, however, that while in the hospital following the rape she told Detective Ptak of the Chicago police department that Ticey had raped her, basing her accusation on her assailant’s voice and on the way he smelled. In response to the question, “Sherry, when you told Detective Ptak when you met him in the hospital that it was your brother, you were sure it was your brother on that date, weren’t you?” Johnson stated:

“Yes, and I was calling for my brother to help me, I was calling, I was scared, I was calling for him to help me and they asked, asking me all the questions at the same time, that’s what happened, he was asking me questions and he was asking me questions so I just said David, I said, my brother’s name.”

Johnson further testified on direct examination that she again, on November 16, 1987, told Ptak and an assistant State’s Attorney that her brother had raped her. She also stated that she did not remember whether her mother was with her when she identified her brother during that meeting, but when asked, “Do you remember your mother yelling at you and dragging you out of the office?” she replied, “She didn’t get in to get me, she didn’t touch me.” On cross-examination, however, Johnson stated that she had told Ptak and the assistant State’s Attorney during the meeting that she “couldn’t be sure” who attacked her.

Ticey called home almost every day from jail in order to talk with his girlfriend; Johnson often answered the phone when he called. She testified, however, that before she returned to her house, after she had stayed with a friend for awhile, she was saying that Ticey wasn’t her rapist. Johnson remembered meeting with an assistant State’s Attorney on December 15, 1987, but could not recall telling him that she could not be sure who raped her. However, when confronted with a letter she wrote to the assistant State’s Attorney, she remembered having told him that she wanted to drop the charges, that she wasn’t sure who had raped her, that one week after the event she saw her assailant in a store and that she had told her mother that she had seen the attacker.

Detective Thomas Ptak testified that he met with Johnson at the hospital on November 13, 1987, and that, “She was shaking, she was crying, she had noticeable bruises about her neck and swelling also.” Johnson told him that Ticey had raped her and that she knew her brother was the rapist because

“while laying in her bed she saw him come into her room, there was a light on in the bathroom just across from the room, she saw his face, she knows his height and weight.
She also said he has a peculiar body odor about him and she identified him from all of those, his face, the height, weight and the odor of him.”

On November 16, 1987, Ptak met with Johnson and an assistant State’s Attorney. During that meeting, Johnson again identified Ticey as her assailant. During the interview, Johnson’s mother was holding her and had her arms around her. Johnson’s emotional condition was such that, “[ajfter a slight confrontation she again broke down, began crying.” According to Ptak, Johnson never denied during the meeting that Ticey committed the attack.

Ticey, in defense, introduced evidence that sperm was found in Johnson’s vagina following the attack. He also introduced an allegedly prior inconsistent statement by Johnson, the content of which does not appear in the record.

The trial judge found Ticey guilty “as charged in the indictment” and sentenced him to 10 years in the custody of the Illinois Department of Corrections.

Ticey first argues that because he was found to have committed only one act, and because criminal sexual assault is a lesser included offense of aggravated criminal sexual assault, the trial court erred in convicting him of any crimes other than one count of aggravated criminal sexual assault. The State does not contest this allegation, and because we find no evidence of more than one act, we hold that one conviction for aggravated criminal sexual assault and both convictions for criminal sexual assault should be vacated; Ticey’s mittimus should be modified accordingly.

Ticey next alleges that although the testimony of a single witness can sustain a conviction, such testimony cannot be the sole basis for a conviction when it was obtained before trial and when it was contradicted by that same witness’ exculpatory testimony at trial. Ticey further maintains that even if that prior inconsistent statement could sustain a conviction, there must be sufficient evidence from which one could conclude that it was reliable; there was, he argues, insufficient evidence that Johnson’s initial statement was reliable to justify such a conclusion.

Ticey cites California v. Green (1970), 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930, as authority for his proposition that Johnson’s prior inconsistent statement identifying him as her assailant could not be used as the basis for his conviction. In Green, the Court held that a witness’ prior inconsistent statement could be used to prove the truth of the matter asserted, but expressed its concern that “considerations of due process *** might prevent convictions where a reliable evidentiary basis is totally lacking.” (399 U.S. at 163 n.15, 26 L. Ed. 2d at 500 n.15, 90 S. Ct. at 1938 n.15.) Clearly, then, Green does not foreclose the use of a prior inconsistent statement to support a conviction; moreover, as we discuss below, a “reliable evidentiary basis” for Ticey’s conviction exists in this case.

When deciding whether trial evidence sufficiently supports a criminal conviction:

“ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.)

Furthermore, as Ticey concedes, “the positive testimony of even one witness, if credible, is sufficient to convict.” People v. Catlett (1971), 48 Ill. 2d 56, 63.

Viewing the evidence most favorably to the State, we find that the trial judge could have reasonably concluded that Johnson, on November 13 and again on November 16, 1987, identified Ticey as her attacker and provided a basis for that identification; that some sort of emotional scene, apparently involving her mother, took place during the November 16 meeting; and that Johnson had telephone contact with her brother while he was in jail. Although Johnson had retracted her allegations against her brother by the time she met with an assistant State’s Attorney on December 15, 1987, she provided contradictory accounts at trial about whether, during the November 16 meeting, she identified Ticey as the assailant or told Detective Ptak that she “couldn’t be sure” who had raped her. Finally, Johnson’s explanation at trial as to why her initial identification of her brother was wrong was not explained with regard to that part of her identification which dealt with her recognition of his voice and distinctive smell.

The facts in the instant case are strikingly similar to those in People v. Winfield (1987), 160 Ill. App. 3d 983, in which an aggravated criminal sexual abuse conviction of one accused of molesting his six-year-old daughter was upheld against the claim that it was insufficiently proven. (160 Ill. App. 3d at 996-97.) The daughter testified at trial that she had fabricated the story about her father abusing her and that she got the idea for such a story from a friend. But the State introduced testimony which had been obtained from her during a preliminary hearing three days after the incident, in which she alleged that her father had abused her. In addition, a nurse who examined the victim the day after the alleged abuse, but who found no physical evidence thereof, testified that the girl had identified her father as the one who had abused her. Finally, the trial judge specifically found, based upon his observation of the defendant and his wife during the trial, that they had pressured the victim to recant her preliminary hearing testimony. (160 Ill. App. 3d at 986-88.) While the trial judge in the instant case made no specific finding about whether Johnson had been pressured to recant her story, that theory was specifically argued by the State, and the judge had sufficient evidence from which he could have drawn such an inference.

Ticey’s use of People v. Wise (1990), 205 Ill. App. 3d 1097, is groundless. Wise dealt with the sufficiency of the evidence in a case where a robbery victim’s testimony, upon which the conviction was primarily based, was impeached by evidence of his exculpatory prior inconsistent statements. The court held that the impeachment so greatly reduced the credibility of the victim’s trial testimony that, without corroborating evidence, it could not be used to support the conviction. (205 Ill. App. 3d at 1101.) Johnson’s prior statement was used in the instant case not only to impeach her trial testimony, as in Wise, but also as substantive evidence of Ticey’s guilt. Wise, contrary to Ticey’s claim, does not preclude such use of Johnson’s prior statement. Accordingly, we cannot say that the trial judge’s verdict was erroneous. We also note that other States have allowed convictions which were predicated primarily upon a victim’s prior inconsistent statement. See, e.g., State v. Garnes (1981), 229 Kan. 368, 624 P.2d 448; State v. Acree (1978), 121 Ariz. 94, 588 P.2d 836 (en banc); State v. Maestas (N.M. App. 1978), 92 N.M. 135, 584 P.2d 182.

In support of his claim that his trial was unfair, Ticey first notes Ptak’s testimony that Johnson told him that her identification of Ticey was partly based upon her ability to see his face and on her knowledge of his weight and height. This testimony, Ticey asserts, was inadmissible hearsay, because Johnson acknowledged telling the detective only that her identification was based on his voice and the way he smelled. Ticey next avers that in her questioning of Johnson at trial, the prosecutor insinuated that Johnson had been coerced by her mother and Ticey into disavowing her earlier accusation against her brother; these insinuations, argues Ticey, were unsupported by any evidence and thus prejudiced Ticey’s right to a fair trial. The allegedly improper insinuations are contained in the following portions of Johnson’s testimony:

“Q. Do you remember your mother yelling at you and dragging you out of the office?
A. She didn’t get in to get me, she didn’t touch me.
* * *
Q. Sherry, your brother called you almost every day from the jail, hasn’t he?
A. He calls to talk to his girlfriend and I end up answering the phone.
Q. And he talks to you almost every day?
A. Not almost every day, I don’t be home almost every day.
Q. And after this happened you stayed with a woman by the name of Helen Triplett, isn’t that correct?
A. Yes.
Q. And she is a friend of yours, correct?
A. Yes.
Q. And after that you had returned to your home, is that correct?
A. Yes.
Q. And you went to stay with your mother, right?
A. Yes.
Q. And it was after you went back to your mother’s home that you came and said that is wasn’t your brother, isn’t that correct?
A. (No response.)
Q. When you went back to your mom’s house, that’s when you told the police and you told the State’s Attorney that it wasn’t David Ticey, your brother, who did this to you, isn’t that correct?
A. No, I was saying that before I left Helen’s house.”

Ticey failed both to object at trial to the aforementioned testimony and questions and to present them as issues in his post-trial motion. Accordingly, he has waived his right to have the issues reviewed (People v. Fields (1990), 135 Ill. 2d 18, 55), unless the alleged errors reasonably could have affected the verdict or unless they resulted in a failure to afford him a fair trial. 87 Ill. 2d R. 615(a); People v. Young (1989), 128 Ill. 2d 1, 47.

Ticey cites no authority for the proposition that the alleged errors were per se so prejudicial to Ticey’s rights that a new trial is required. Moreover, because “[i]n a bench trial, it is presumed that the trial court has considered only competent evidence ***, and this presumption may be rebutted only when the record affirmatively shows the contrary” (People v. Bradford (1989), 187 Ill. App. 3d 903, 923), the lack of such a showing leads us to conclude that any impropriety had no effect on the verdict. Accordingly, we decline to review as plain error the disputed testimony and questions.

For the foregoing reasons, Ticey’s convictions on one count of aggravated criminal sexual assault and on both counts of criminal sexual assault are vacated, and this cause is remanded for the purpose of so modifying his mittimus; Ticey’s conviction on the remaining count of aggravated criminal sexual assault is affirmed.

Affirmed in part; vacated in part and remanded with directions.

HARTMAN and DiVITO, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANA DOSS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3320
    Opinion filed June 11, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of first-degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a).) On appeal, she contends that (1) the evidence failed to support her conviction, and (2) the Illinois statutory scheme for murder is unconstitutional. We affirm, for reasons which follow.

Nettie Doss, defendant’s mother, testified that on August 26, 1987, she left home to buy pain medicine and pads for defendant, who complained of severe menstrual cramps. When she returned home, defendant was in bed. Nettie heard a cry in her kitchen and discovered a newborn baby on top of the trash can, wrapped in a plastic garbage bag. She immediately took her daughter and the baby to the hospital.

Nettie did not know that defendant was pregnant; defendant continued to wear her regular clothes and her abdomen never became enlarged. Defendant had turned 15 years old earlier in the month. Although her menstrual cycle was often irregular, she did menstruate lightly in June 1987.

Penny Higgins, a registered nurse on duty when defendant arrived at the hospital, testified that the newborn baby was cyanotic, had blue digits, was blue around the mouth due to a lack of oxygen, and had sustained two puncture wounds on its chest. The umbilical cord was gone, leaving a gaping hole in the baby’s abdomen. Defendant claimed that as she walked into the bathroom, the baby fell out of her and onto a pair of scissors. When Higgins asked if she had noticed her abdomen enlarging or the baby’s prenatal movements, defendant did not answer and turned away.

Chicago police officer Lorenda Gamble spoke with defendant shortly after she was admitted to the hospital. Defendant told her that she had gone to the bathroom, and when she stood up from the toilet, the baby dropped out of her and onto a pair of scissors. She had not known that she was pregnant.

Lucille Robinson, a child protection investigator for the Department of Children and Family Services, interviewed defendant on August 27, 1987. Defendant had not been aware of her pregnancy until her eighth month and had received no prenatal care. She told Robinson that prior to the baby’s birth, she had felt menstrual cramps and thought she had to use the toilet. When she stood up, the baby came out. Defendant held the baby in a towel while she used a knife and scissors to cut the umbilical cord. She thought the baby was dead because it made no noise.

Chicago police detective Ronald Mudry investigated defendant’s apartment following this incident. He found a pair of pinking shears and a steak knife in the bathroom sink, which was filled with water. A red-stained towel was on the bathroom floor, and there were red stains in the bathtub. The floor appeared to have been recently cleaned, and the mop behind the bathroom door was wet. Mudry also recovered a black plastic garbage bag from the kitchen floor.

Chicago police detective Richard Schak testified that defendant, at the hospital on the evening of August 27, 1987, told him that she had noticed a foot or a leg protruding from her vagina. She went into the bathroom and gave birth while standing. When she could not cut the umbilical cord with a knife, she used scissors. She then wrapped the baby in a plastic garbage bag and placed it in a trash can in the kitchen. Defendant said she did not know how the baby received the puncture wounds.

The parties stipulated that the baby died at 6:52 a.m. on August 27, 1987, from stab wounds to the chest.

Dr. Vernon Cook, a physician who specialized in obstetrics and gynecology, testified as an expert for defendant. He stated that young women may initially have irregular menstrual cycles for up to two years. Many women experience bleeding throughout pregnancy which may appear to be menstrual periods. Further, it is possible for a woman to be unaware of her own pregnancy. He had attended women who denied their pregnancy while in labor. On cross-examination, Cook admitted that he had neither examined defendant nor seen her medical records.

The circuit court found that defendant had intentionally stabbed the baby, and adjudged her guilty of first-degree murder. Defendant was sentenced to 20 years in custody of the Department of Corrections.

I

Defendant claims that her conviction of first-degree murder is not supported by the evidence and she should have been convicted of involuntary manslaughter.

The relevant mental state for first-degree murder is that in performing the acts that cause death, an accused knows that such acts create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(2).) An accused need not be shown to have had specific intent to kill or do great bodily harm or to have known with certainty that her acts would achieve those results; it is sufficient to show that she voluntarily and willfully committed an act, the natural tendency of which was to destroy another’s life. People v. Bartall (1983), 98 Ill. 2d 294, 307, 456 N.E.2d 59.

One who unintentionally kills another without lawful justification commits involuntary manslaughter if she recklessly performs acts that are likely to cause death or great bodily harm to another. (Ill. Rev. Stat. 1989, ch. 38, par. 9—3(a).) First-degree murder and involuntary manslaughter have inconsistent mental states, as the latter is an unintentional killing. People v. Hoffer (1985), 106 Ill. 2d 186, 194-95, 478 N.E.2d 335.

Here, the evidence showed that defendant secretly gave birth to the baby. She attempted to cut the umbilical cord with a knife and scissors, and ultimately ripped the cord from the baby’s abdomen. The baby was stabbed twice in the chest, placed in a plastic trash bag, and on a garbage can. Defendant’s explanations of the baby’s wounds were inconsistent. She initially claimed that the baby fell onto the scissors, and then said she did not recall how the injuries occurred. She contends on appeal that she unintentionally stabbed the baby while trying to cut the umbilical cord. The evidence, however, supports the finding of a deliberate attempt to dispose of an unwanted child, rather than an accidental death.

Defendant relies on People v. Ryan (1956), 9 Ill. 2d 467, 138 N.E.2d 516, and People v. Weeks (1983), 115 Ill. App. 3d 524, 450 N.E.2d 1351, both of which are distinguishable. In Ryan, defendant was charged with both murder and involuntary manslaughter in the death of her newborn baby. A jury found defendant guilty of involuntary manslaughter, and the supreme court affirmed that verdict. The court noted that even though defendant might have been convicted of murder, the question was for the jury to determine. (Ryan, 9 Ill. 2d at 476.) In Weeks, defendant passed out after secretly giving birth, and her newborn baby died a short time later, apparently from neglect. The appellate court reversed defendant’s involuntary manslaughter conviction, holding that the State had not proved that defendant had acted recklessly. (Weeks, 115 Ill. App. 3d at 529.) Neither case supports defendant’s argument that she should have been convicted of involuntary manslaughter. Further, Weeks was based on the reasonable hypothesis of innocence theory, which has since been abolished in Illinois. See People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

The circuit court here concluded that defendant intentionally inflicted wounds which created a strong probability of the baby’s death. At a bench trial, the judge weighs the evidence and draws reasonable inferences therefrom. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) The circuit court’s findings will not be overturned unless the evidence is so unreasonable or improbable that it leaves a reasonable doubt of defendant’s guilt. (Pintos, 133 Ill. 2d at 290-92; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) At bar, there is no reasonable doubt of defendant’s guilt.

Defendant alternatively contends that based on her shock and fear of family disgrace, she unreasonably believed the killing was justified, and therefore she should have been convicted of second-degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9—2 (section 9—2).) An accused is guilty of second-degree murder when she commits first-degree murder, but is able to prove either that she was acting under a sudden and intense passion resulting from serious provocation, or she believed the circumstances, if they existed, justified the killing. (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a).) There is no evidence of either mitigating factor in this case.

The only recognized categories of serious provocation that, if proved, would reduce a killing from first- to second-degree murder are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse. (People v. Fausz (1983), 95 Ill. 2d 535, 539, 449 N.E.2d 78.) None of these categories is present here. Further, the supreme court has explicitly held that a young child cannot cause the serious provocation required of second-degree murder. See People v. Crews (1967), 38 Ill. 2d 331, 336, 231 N.E.2d 451.

Section 9—2 provides that the defense of justification must be based on the principles listed in Article 7 of the Criminal Code. (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2); see Ill. Rev. Stat. 1989, ch. 38, par. 7—1 et seq.) The enumerated defenses in Article 7, however, cannot justify defendant’s use of force. She was not acting in self-defense. (See Ill. Rev. Stat. 1989, ch. 38, par. 7—1.) The defense of compulsion is unavailable to an accused charged with first-degree murder. (People v. Gleckler (1980), 82 Ill. 2d 145, 155-57, 411 N.E.2d 849; see Ill. Rev. Stat. 1989, ch. 38, par. 7—11.) Finally, the defense of necessity cannot justify the baby’s killing, which is a far greater injury than any disgrace defendant might suffer as a result of giving birth. (See People v. Gindorf (1987), 159 Ill. App. 3d 647, 660-61, 512 N.E.2d 770, appeal denied (1987), 117 Ill. 2d 548; Ill. Rev. Stat. 1989, ch. 38, par. 7—13.) The facts of this case, therefore, make it legally impossible for defendant to have committed second-degree murder.

II

Defendant argues that the Illinois statutory scheme of first- and second-degree murder is unconstitutional because it violates due process, equal protection, and the separation of powers clause. A defendant is guilty of second-degree murder when she commits first-degree murder but is able to prove by a preponderance of the evidence the presence of a valid mitigating factor. Ill. Rev. Stat. 1989, ch. 38, par. 9-2.

Initially, the State challenges defendant’s standing to attack the constitutionality of section 9 — 2. Standing to challenge the validity of a statute exists if she has sustained, or is in immediate danger of sustaining, some direct injury as a result of enforcement of the statute. (People v. Ziltz (1983), 98 Ill. 2d 38, 41, 455 N.E.2d 70.) In challenging the constitutionality of a criminal statute, defendant generally must bring herself within the class directly aggrieved by the alleged unconstitutionality. (People v. Palmer (1986), 141 Ill. App. 3d 234, 238, 490 N.E.2d 154, appeal denied (1986), 113 Ill. 2d 566.) Here, defendant’s challenge is based on the burden of proof which that statute imposes on her with regard to the mitigating factors. There is no evidence of either of the mitigating factors which would support a conviction of second-degree murder. The evidence cannot support a defense of justification. Further, defendant could not have been provoked by the actions of a newborn baby. (See Crews, 38 Ill. 2d at 336.) Defendant, therefore, was not in danger of sustaining a direct injury as a result of enforcement of section 9—2 and lacks standing to challenge that provision.

Assuming, arguendo, that defendant had standing to challenge section 9 — 2, her argument fails. The constitutionality of the Illinois murder statute has been upheld on four separate occasions. (See People v. Gore (1991), 212 Ill. App. 3d 984; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335, appeal denied (1991), 136 Ill. 2d 547.) Those four cases address and refute all of the constitutional arguments presented by defendant, and she has offered no valid reason for departing from those precedents.

For the reasons stated above, there are no bases for overturning the circuit court’s decision. Accordingly, we affirm.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.