text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN WYCH, Defendant-Appellant.
    Second District
    No. 2 — 91—0803
    Opinion filed August 5, 1993.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Following a bench trial in the circuit court of Boone County, defendant, Alan Wych was convicted of a single count of criminal sexual assault (720 ILCS 5/12 — 13 (West 1992)) and was sentenced to a four-year term of imprisonment. Defendant appeals, contending that the State failed to prove his guilt beyond a reasonable doubt and that the trial court erred in denying his motion to suppress certain statements he made to police after requesting an attorney.

The evidence presented at trial was as follows. On December 7, 1989, M.B. was living with her niece, Brenda Blodgett, and Brenda’s husband, Paul Blodgett, at their house in Belvidere. Also living in the house and present that night were Brenda’s daughter and Mike Richardson, a friend of the Blodgetts who was staying in their finished basement. M.B. testified that, at about 10 p.m. on December 7, she had gone to sleep on the couch in the living room. At about 11:30 p.m. she awoke and found defendant lying on top of her with his penis inside her vagina. Defendant said “f— me” to M.B. M.B. asked defendant “what the hell he [thought] he was doing,” at which point defendant jumped up and ran out a patio door. M.B. got up and saw defendant drive away in a red car. M.B. had known defendant for 10 years or longer, but they had never had any kind of romantic relationship.

That evening, M.B. slept in a flannel gown which came down about six inches below her knees. She testified that when she awoke with defendant on top of her, the gown was pulled up over her stomach and she was exposed from the waist down. Later, during cross-examination, M.B. stated that her clothes were pulled up to her neck. Defendant did not hit M.B. or tear her clothes. M.B. didn’t scream, bite, scratch, or kick defendant M.B. had been drinking earlier that day. During the period from about 3:30 p.m. until she went to- bed, M.B. had about seven beers and three shots. She was relaxed but not intoxicated.

After defendant left, M.B. went to Paul and Brenda’s bedroom and told them that she had been raped, at which point Brenda contacted the police. Paul and Brenda testified that M.B. was crying when she told them that she had been raped. M.B. was later taken to St. Anthony’s Hospital in' Rockford. A nurse who attended to M.B. testified that M.B. appeared very upset and started to cry while being examined. During the examination, a pubic hair was found in M.B.’s vaginal area. The hair was examined at the Illinois State Police Crime Laboratory and was found to be dissimilar to samples taken from M.B. While the hair was found to be consistent with a sample taken from defendant, its origin could not be conclusively determined. No seminal material or spermatozoa was found in the examination of M.B.

Early in the morning of December 8, 1989, defendant was questioned in an attorney room at the Boone County jail by Detectives Royal White and Joseph Gough of the Belvidere police department. Prior to questioning, defendant was advised of his Miranda rights. Defendant indicated that he understood his rights and signed a waiver form. Thereafter, defendant told the detectives that he went to Paul Blodgett’s house to talk to Paul about some money Paul owed him. When he got to the house and could not make contact with Paul, he went downstairs and talked to Michael Richardson. After a short time, he left Richardson and returned upstairs. Upon doing so, he noticed someone on the couch trying to get his attention and motioning for him to come over. Defendant told the detectives that he messed around with the person on the couch a little bit and then left. Asked by the. detectives whether he had intercourse with the person on the couch, defendant stated that he had not and had never taken his pants down.

At that point defendant asked if he could speak to his attorney, and defendant placed a telephone call to an attorney outside of the presence of Detectives White and Gough. After the call was completed, Detective White asked defendant if he had contacted his attorney, and defendant responded that he had. White then asked defendant whether he wanted to continue talking to the detectives, and defendant stated that his attorney told him to keep quiet. White then told defendant that he and Gough would stop asking questions. Defendant replied that he wanted to continue talking but would refuse to answer questions that he thought he should not answer.

After this exchange, defendant told White that there was a lot of drug trafficking going on in the Blodgetts’ residence, and he expressed his desire to make a deal. White responded that he was not in a position to make a deal with the police. White told the defendant he would review the case and would then inform defendant with what offense he would be charged. Detectives Gough and White then left.

White later returned without Detective Gough to serve defendant with the complaint charging criminal sexual assault. According to White, during this encounter, defendant stated that he could not believe M.B. was doing this to him. White again asked defendant if he was sure he did not have sex with M.B., and defendant responded that he did not think so. According to White, defendant further stated, “Royal, if I did this I was more drunk and more fucked up than I thought I was, but I don’t think I did it.” Defendant also indicated that he did not know the person on the couch was M.B. until he was on top of her, at which point he recognized her. Defendant was coherent during his discussions with White and did not appear to White to be under the influence of alcohol.

Paul Blodgett testified that he had known defendant for about 20 years. At one point defendant had worked for Paul in his seamless gutter business before defendant went into business for himself. Paul was also married to defendant’s sister, Tina, at one time. They were divorced in 1976 but had lived together a few times thereafter. On one occasion, Paul struck Tina in defendant’s presence, and defendant responded by striking Paul. According to Paul, there was no ill will between him and defendant as a result of Paul’s divorce from Tina, nor did any conflict arise from competition between them in the seamless gutter business.

According to Paul’s testimony, at around 9 a.m. on December 8, 1989, he received a telephone call from defendant, who asked to speak to M.B. When Paul refused to allow defendant to talk to M.B., defendant asked Paul if he would talk to M.B. for him. Defendant indicated that he wanted to get M.B. an apartment and pay her rent for the first two or three months. Defendant also indicated that he wanted M.B. to drop the charges against him. Defendant repeated several times his desire that M.B. drop the charges against him and his willingness to rent an apartment for M.B. About one-half hour later, defendant called Paul again and mentioned that he had been arraigned and did not have enough money for bond. Defendant again discussed helping M.B. rent an apartment and M.B. dropping the charges. Defendant also discussed selling Paul his car for $1,500 so that he could get out of jail. Paul testified that, during their conversation, defendant stated that he had been drinking the night before and “didn’t remember being there.” Paul asked defendant if he “did it” and defendant responded, “[w]ell, I don’t know why I did it.” Defendant wanted to apologize to M.B. for “doing it.”

Defendant testified that, on the evening of December 7, 1989, he and two friends had gone to two bars in Rockford and Beloit, Wisconsin. After returning to Belvidere, defendant asked one of his friends if he wanted to go to Paul Blodgett’s house to play pool and drink beer. Defendant also wanted to collect some money Paul owed him. They proceeded to the Blodgetts’ residence, and defendant was let into the house while his friend apparently waited in the car. When defendant learned that Paul was sleeping, he went down to the basement and spoke briefly to Mike Richardson. Testifying for the State, Richardson confirmed the conversation. Defendant testified that, when he returned upstairs after his conversation with Richardson, he noticed someone on the couch motioning to him. Defendant could not tell who it was at first. The person on the couch asked if she could have a kiss before defendant left, and defendant thought it was M.B. because she often asked for a kiss. He gave her a kiss, and they started to “fool around a little bit.” When defendant was rubbing M.B.’s leg, she said “what are you doing,” at which point defendant got up and left.

After leaving the Blodgetts’ house, defendant visited a friend and went home at around 2 a.m. When he arrived at home, defendant was informed by his sister that the police were looking for him. Defendant contacted the police and was taken to the police station. Defendant denied telling Detective White that, if he had sex with M.B., he was more fucked up than he thought. Rather, defendant said to White, “you would have to be awful f — ed up to do that.” Defendant confirmed that he had called Paul Blodgett and asked him to talk to M.B. about dropping the charges. Defendant also confirmed offering to sell Paul his car and to get M.B. an apartment and pay the rent for a few months. Defendant testified he offered to help M.B. with an apartment because he felt sorry for her. Defendant denied admitting to Paul that he had done anything wrong.

The defense also presented the testimony of Curt Swanson. Swanson testified that around Thanksgiving 1989 he observed an exchange between M.B. and defendant in a bar where Swanson was employed as a bartender. On this occasion, according to Swanson, M.B. asked defendant for a kiss and a ride home, and defendant refused.

Prior to trial, defendant filed a motion to suppress the statements he made to police, contending that he was not advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and that his statements were coerced. The parties agreed to permit the trial court to rule on the motion after hearing the trial testimony. After the close of evidence, the trial court noted that it had been shown that defendant was properly advised of his Miranda rights. However, the trial court questioned the propriety of admitting statements defendant made to police without an attorney present after an attorney had been requested. At that time, defendant’s attorney took the position that such statements were inadmissible. The trial court invited the parties to submit authority on the question and took the matter under advisement. Subsequently, on May 6, 1991, the trial court denied the motion to suppress and found defendant guilty of the offense charged.

Defendant initially contends that the evidence presented by the State was insufficient to prove his guilt beyond a reasonable doubt. At the outset, we note that, while at one time the law in Illinois required that the victim’s testimony must be clear and convincing or substantially corroborated to sustain a conviction for a sex offense, that standard has been rejected. (People v. Schott (1991), 145 Ill. 2d 188, 202-03; see also People v. Wittenmyer (1992), 151 Ill. 2d 175, 190; People v. Dugan (1992), 237 Ill. App. 3d 688, 699.) In sex offense cases, as in other criminal cases, the test to be employed on review when the sufficiency of the evidence is questioned is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261; see Schott, 145 Ill. 2d 188; People v. Grant (1992), 232 Ill. App. 3d 93.) This standard of review does not allow the appellate court to substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses. (People v. Sutherland (1992), 155 Ill. 2d 1, 17; Dugan, 237 Ill. App. 3d at 699.) A reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Sutherland, 155 Ill. 2d at 17; Dugan, 237 Ill. App. 3d at 699; People v. West (1992), 234 Ill. App. 3d 578, 588.

Defendant contends that M.B.’s testimony that she awoke and found defendant on top of her with his penis in her vagina was implausible and contrary to human experience and nature. Defendant argues that it is unreasonable to believe that he could climb on top of M.B., expose her and attempt penetration without waking her. Defendant maintains that M.B. would have awakened before he could have accomplished penetration. We disagree. If defendant made an effort not to wake M.B., it is plausible that she could remain asleep at the beginning of the incident. It is a matter of common experience the individuals sleeping soundly can often be subjected to some physical contact or manipulation without being roused from sleep. In the present case, it has not been suggested that defendant was on top of M.B. or had his penis in her vagina for a lengthy period of time before she awoke. Moreover, while M.B. testified that she was not intoxicated that evening, she had consumed a considerable amount of alcohol which could have contributed to her sleeping soundly.

Defendant also notes the lack of any outcry or resistance by M.B. after she awoke. M.B.’s testimony indicates that defendant fled moments after she awoke and that she had asked him what he was doing. The record discloses that M.B. was disoriented and not fully alert when she awoke to find defendant lying on top of her, which would satisfactorily explain her failure immediately to cry out or offer resistance. After defendant left, M.B. was visibly distressed. M.B. promptly reported the incident to Paul and Brenda Blodgett, who then contacted the police. Additionally, Paul and Brenda Blodgett and a nurse who attended to M.B. at St. Anthony’s Hospital testified that M.B. was crying. M.B.’s prompt complaint and the fact that she was observed crying corroborate her account that she was sexually assaulted. See, e.g., People v. Bock (1993), 242 Ill. App. 3d 1056, 1078 (testimony of police and medical personnel that complainant was emotionally upset and crying was corroborative); People v. Shockley (1990), 195 Ill. App. 3d 148 (prompt complaint was corroborative).

In support of his argument that the evidence against him was insufficient to sustain his conviction, defendant cites two cases which are factually dissimilar to the case at bar. In People v. Wright (1986), 147 Ill. App. 3d 302, a rape conviction was reversed where the complainant’s testimony was that she had been abducted in daylight after stepping off a bus and, over a period of several hours, was forcibly taken by her unarmed abductor to a number of public places where without screaming or appearing distraught she unsuccessfully sought help.

In People v. Appleby (1968), 104 Ill. App. 2d 207, the complainant testified that she was raped by an intruder in her bed where her four children were also sleeping. None of the children awoke during the approximately 15 minutes the intruder was in the bedroom. Under the evidentiary standard applicable at the time, requiring uncorroborated testimony in a rape prosecution to be clear and convincing, the Appleby court reversed the conviction. The court expressed doubt as to the reliability of the complainant’s identification of the defendant and as to her testimony that none of her children were awakened during the incident. But see People v. Grant (1992), 232 Ill. App. 3d 93 (where 13-year-old complainant’s identification of defendant as her assailant was clear and unequivocal, testimony that sexual assault occurred in same bedroom where four of the complainant’s siblings were sleeping and in same bed where two of those siblings were sleeping did not create a reasonable doubt).

Neither case cited by defendant has much bearing on the determination of the plausibility of M.B.’s testimony in the present case. M.B.’s testimony was not so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Accordingly, the trial court’s finding will be affirmed.

Defendant next contends that the trial court erred in denying his motion to suppress statements he made to police after telephoning his attorney. Although defendant was permitted to speak to his attorney, he contends that the police improperly resumed questioning and that statements he made without counsel present were inadmissible. The State initially responds that defendant has waived this argument because he did not raise the issue in his original written motion to suppress. The basis for defendant’s written motion to suppress was his contention that he had not been properly advised of his Miranda rights before questioning and that his statements were coerced. Generally, arguments raised for the first time on appeal are deemed waived. (People v. C.H. (1992), 237 Ill. App. 3d 462, 467, citing People v. Enoch (1988), 122 Ill. 2d 176, 186.) Although defendant did not raise in his written motion to suppress the specific issue presently before this court, during arguments on the motion the trial court brought the issue to the attention of counsel for the State and defendant, at which point the defense counsel stated that the actions of the interrogating detectives which are the subject of this appeal were improper. The trial court invited counsel to submit authorities on the issue and considered the issue in ruling on the suppression motion. Under these circumstances the issue has not been waived, and we will consider the merits of defendant’s argument.

The privilege against self-incrimination is guaranteed by the fifth amendment to the United States Constitution. (See, e.g., People v. Edwards (1991), 144 Ill. 2d 108, 136.) In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the United States Supreme Court held that the fifth amendment privilege against self-incrimination applies where an individual is subjected to custodial interrogation. To protect the privilege in this setting, the Court set forth certain procedural safeguards which must be employed, the most important of which is that, prior to interrogation, the defendant must be informed in clear and unequivocal terms that he has the right to remain silent. (Miranda, 384 U.S. at 467-68, 16 L. Ed. 2d at 720, 86 S. Ct. at 1624.) To further safeguard the privilege against self-incrimination, the Court declared that a defendant must be permitted to have an attorney present during interrogation if he desires and must be advised of that right. (Miranda, 384 U.S. at 469, 16 L. Ed. 2d at 721, 86 S. Ct. at 1625.) The ability merely to consult with counsel prior to questioning is not enough, since “preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process.” Miranda, 384 U.S. at 470, 16 L. Ed. 2d at 721, 86 S. Ct. at 1625.

Our supreme court has recently outlined the procedures to be followed after Miranda warnings are given:

“If a suspect indicates that he wishes to remain silent, the interrogation must cease. (Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628.) If a suspect invokes his right to counsel in response to Miranda warnings, all interrogation must cease until an attorney is present. (Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628; see also Minnick v. Mississippi (1990), 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486.) The Court in Miranda thus ‘fashioned *** the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights.’ Fare v. Michael C. (1979), 442 U.S. 707, 719, 61 L. Ed. 2d 197, 209, 99 S. Ct. 2560, 2569.” People v. Winsett (1992), 153 Ill. 2d 335, 349.

In Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the Supreme Court reconfirmed the principles of Miranda, emphasizing that “it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” (451 U.S. at 485, 68 L. Ed. 2d at 387, 101 S. Ct. at 1885.) In Edwards, the interrogating officers suspended an initial session of questioning when the defendant, having previously been advised of his rights pursuant to Miranda, requested an attorney. The next morning the defendant was taken to meet with two detectives, colleagues of the officers who had previously questioned him. After Miranda warnings were again administered, the defendant made statements implicating himself in the crime under investigation. The Court acknowledged that a defendant who has been initially advised of his Miranda rights may himself validly waive his rights and respond to interrogation, but the Court noted that “additional safeguards are necessary when the accused asks for counsel.” (451 U.S. at 484, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884.) Accordingly, the Court held as follows:

“[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused *** having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities unless counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Emphasis added.) 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.

In its recent decision in People v. Winsett (1992), 153 Ill. 2d 335, 349-50, our supreme court observed:

“Edwards thus created a bright-line rule for deciding whether an accused who has invoked his fifth amendment right to counsel has subsequently waived that right. Any waiver of the right to counsel given in a discussion initiated by the police is presumed invalid, and statements obtained pursuant to such a waiver are inadmissible in the prosecution’s case in chief.” (Emphasis added.)

In Oregon v. Bradshaw (1983), 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830, the Court made clear that the fact that an accused initiates further communication with authorities does not alone establish a valid waiver of the right to counsel during interrogation. Our supreme court has observed that under Bradshaw it must also be shown that “by defendant’s initiation of a conversation, coupled with the totality of the other circumstances, he knowingly and intelligently waived his right to counsel’s presence during questioning.” People v. Hicks (1989), 132 Ill. 2d 488, 493.

In the present case, defendant invoked the right to counsel when he asked if he could speak to his lawyer. At that point the principles of Edwards became applicable. While Edwards, by its language, prohibits police-initiated reinterrogation where the accused has “expressed his desire to deal with the police only through counsel” (451 U.S. at 484, 68 L. Ed. at 386, 101 S. Ct. at 1885), applicable decisions have not required defendants requesting counsel to request specifically their presence during interrogation for purposes of invoking the right to counsel under Edwards. (See, e.g., People v. Carlson (1992), 224 Ill. App. 3d 1034; People v. Parham (1986), 141 Ill. App. 3d 149.) The settled approach to questions of waiver requires courts to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel. Michigan v. Jackson (1986), 475 U.S. 625, 633, 89 L. Ed. 2d 631, 640, 106 S. Ct. 1404, 1409. But see Connecticut v. Barrett (1987), 479 U.S. 523, 526, 93 L. Ed. 2d 920, 926, 107 S. Ct. 828, 830 (where defendant’s statement that “he was willing to talk about [the incident under investigation] verbally but he did not want to put anything in writing until his attorney came” was not ambiguous so as to require a broad interpretation, and did not invoke the right to presence of counsel while the defendant made an oral statement).

When defendant asked to speak with his attorney, the detectives questioning him were required immediately to cease the interrogation. The detectives complied with this requirement and permitted defendant to call his attorney. Having invoked the right to counsel, any waiver of that right in a discussion initiated by police would be presumed invalid, rendering any statements obtained pursuant to such waiver inadmissible. (People v. Winsett (1992), 153 Ill. 2d 335, 350.) Defendant urges that the waiver relied upon by the State in the present case was given in a conversation initiated by the detectives and was therefore invalid.

After defendant completed his telephone call to his attorney, Detectives White and Gough asked him if had contacted his attorney, and defendant responded affirmatively. Detective White then asked defendant if he wanted to continue talking to the detectives. When the defendant responded that his attorney advised him to remain silent, Detective White unequivocally stated that the questioning would end at that point. Clearly, after the defendant completed the call to his attorney, the detectives initiated a conversation or discussion with the defendant in the ordinary sense of those terms. However, for purposes of Edwards, that brief exchange was completed when Detective White stated that no further questions would be asked. At that point, the detectives had obtained all the information they sought from defendant, and White’s final statement invited no further response from defendant. When defendant immediately thereafter stated, without any prompting from the detectives, that he would answer questions as he deemed advisable, he initiated a new conversation pursuant to which he waived the right to have an attorney present. Although defendant’s statement immediately followed Detective White’s, we do not believe the passage of time necessarily controls the question of when one exchange or conversation has ended and another begun. Rather, the limited purpose of the exchange initiated by the detectives and the clarity with which the detectives ended their inquiry convince us that the defendant’s subsequent unsolicited offer to answer additional questions initiated a new discussion. The Edwards rule is designed to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights. (Winsett, 153 Ill . 2d 335.) Where the authorities, without threatening reprisal or suggesting negative repercussions, have unequivocally indicated that questioning would terminate, it would not advance the purpose of the Edwards rule to suppress unsolicited statements made by the defendant.

We find support for our conclusion in the decision in People v. Weathersby (1985), 138 Ill. App. 3d 310. In Weathersby, while Miranda warnings were being read to the defendant, he made comments from which the detectives present concluded he was invoking his right to counsel. As the detectives were leaving, the defendant requested coffee and a cigarette and stated that he would tell what really happened. On appeal from the denial of his motion to suppress statements made thereafter, the court expressed doubt whether the defendant had effectively invoked his right to counsel, but stated that “[m]ore important is the fact that as the police began to leave in deference to their perception that defendant was requesting counsel, it was defendant who initiated further communication with them.” (138 Ill. App. 3d at 315.) Applying Edwards, the Weathersby court concluded that “assuming that defendant’s statements were properly construed as a request for counsel, it is clear that he immediately initiated a new conversation in which he waived this request.” (138 Ill. App. 3d at 315.) Similarly, in the case at bar, defendant’s statement that he would answer certain questions initiated a new conversation.

In support of his argument that his statements should have been suppressed, defendant relies, in part, on this court’s recent decision in People v. Carlson (1992), 224 Ill. App. 3d 1034, where we found that statements made after the defendant’s request for counsel should have been suppressed. In Carlson, after requesting an attorney, the defendant was permitted a telephone call, but was unable to reach his attorney. Thereafter, one of the detectives questioning the defendant asked him, “What do you want to do now?” (224 Ill. App. 3d at 1040.) The defendant asked what his “options” were, and the detective responded that the defendant could cooperate and speak with the detectives or he could go to the booking area and complete the booking process. (224 Ill. App. 3d at 1040.) The basis for this court’s decision that the defendant’s subsequent statements should have been suppressed was as follows:

“[W]hen the defendant asked the detectives what his ‘options’ were, they did not inform him that he could make an additional phone call or that he had the right to counsel present before speaking with them. [Citation.] Rather, they asked him once again if he would answer their questions. In this context, we find that the detectives’ questioning following the defendant’s request to call his attorney to be ‘further police-initiated interrogation.’ ” 224 Ill. App. 3d at 1041.

Carlson is distinguishable. In the case at bar, defendant actually spoke to his attorney; he was not faced with the decision of how to proceed when counsel appeared to be unavailable, nor were his options in any way misrepresented. Moreover, as previously noted, in the present case, unlike Carlson, the detectives’ unequivocal termination of questioning intervened prior to defendant’s announcement that he would answer certain questions.

We therefore conclude that defendant initiated the communication in which he waived the right to have counsel present during questioning. The remaining inquiry is whether, by defendant’s initiation of a conversation, coupled with the totality of the other circumstances, he knowingly and intelligently waived the right to have counsel present. (People v. Hicks (1989), 132 Ill. 2d 488, 493.) Defendant has not disputed that the waiver was knowingly and intelligently made. Defendant was properly advised of his rights and was permitted to speak with his attorney. The record supports the conclusion that defendant knowingly and intelligently waived the right to have an attorney present during questioning.

A trial court’s ruling on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162; People v. Pertz (1993), 242 Ill. App. 3d 864, 892.) The trial court’s denial of defendant’s motion to suppress is supported by the evidence and will be affirmed.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    JANE SMITH, Personal Representative of David Smith, Deceased, and as Adm’r of the Estate of David Smith, Deceased, for the benefit of Jane Smith, Indiv., et al., Plaintiff-Appellant, v. ARMOR PLUS COMPANY, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0861
    Opinion filed August 9, 1993.

      Reid S. Jacobson and Stacey L. Seneczko, both of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellant.
    Michael K. Noonan, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Jane Smith, as personal representative and administrator of the estate of David Smith (Smith), appeals from a grant of summary judgment in favor of defendants, Armor Plus Company, Inc. (Armor), a corporation headquartered in Wisconsin, and its former employee, Richard Grouleau, in a suit under the Wrongful Death Act (740 ILCS 180/1 et seq.) (West 1992)). Smith was killed when a car in which he was riding drove off the highway and onto the shoulder, where it collided with a disabled Armor truck that Grouleau, the driver, had abandoned there. The trial court held, as a matter of law, that Grouleau’s alleged negligence did not proximately cause Smith’s fatal injuries.

On appeal, plaintiff argues that she raised genuine factual issues as to all elements of negligence, including proximate cause. She maintains that the trial court ignored evidence that Joshua Block would not have driven the car onto the shoulder had Grouleau warned adequately of the truck’s presence. Defendants reply that the record demonstrates that the presence of the truck entirely off the roadway was only a condition and not a proximate cause of the collision, and that Block’s erratic driving was the sole proximate cause of the accident. In rejoinder, plaintiff argues that the safety statutes Grouleau violated assume that the sort of occurrence here was sufficiently foreseeable so that Grouleau’s violation of his statutory duties could be a proximate cause of the collision even though the truck was off the roadway at the time of the collision.

The fatal collision occurred at about 12:40 a.m. on November 18, 1989, on the right shoulder of Interstate 94 in Lake County just north of milepost 66. The complaint alleged that on November 17, 1989, Grouleau parked and abandoned the truck on the east emergency shoulder of Interstate 94 after the truck became disabled. Block’s vehicle collided with the rear of the truck, causing Smith’s injuries.

Plaintiff alleged that the collision and Smith’s injuries proximately resulted from one or more of the following negligent acts or omissions by Grouleau: (1) failure to remove the truck from the shoulder' within a reasonable time of abandoning it; (2) failure to carry emergency warning devices as required by the Illinois Vehicle Code (625 ILCS 5/ 12 — 702(a) (West 1992)); (3) failure to place emergency warning devices behind the truck, as required by law (625 ILCS 5/12 — 702(e)) (West 1992)); (4) failure to place emergency warning devices on the curve in the roadway directly south of the collision site (625 ILCS 5/ 12 — 702(d) (West 1992)); (5) abandoning the truck without insuring that it was removed from the shoulder; and (6) failure to park the truck at the nearest tollway oasis when Grouleau knew or should have known that the truck was about to become disabled.

Defendants moved for summary judgment, contending that their alleged negligence was at most a condition and not a proximate cause of the accident. They argued that when Grouleau stopped the truck at the nearest oasis, the truck was operating properly. When the truck developed mechanical difficulties, Grouleau parked it on the shoulder, entirely off any lane of vehicular traffic. Prior to the collision, emergency flashers on the truck were activated. Before the collision, defendant’s agents advised the State Police of the truck’s location. Joshua Block, the driver, could not remember the collision or any of the events leading up it.

Defendants maintained that these facts entitled them to summary judgment based on the lack of any issue of proximate cause. They reasoned that because the truck was parked well off the roadway, out of the area intended for motor vehicle traffic, the truck’s presence was at most a condition of the accident. It was not a proximate cause of the accident because the truck did not cause Block to drive off the roadway; Block’s improper departure from the road, whatever the cause, was an intervening efficient cause of the crash.

Defendants filed several documents in support of their motion for summary judgment. An affidavit of Phil Weber (not further identified in the record) stated that at an unspecified time on November 18, 1989, he was headed north on the Illinois Tollway near milepost 66. He discovered the abandoned Armor Plus truck, which was parked on the east shoulder, entirely off the part of the tollway designated for travel. Before he departed, Weber activated the truck’s emergency flashers.

Defendants also submitted Grouleau’s March 28, 1991, deposition. At the time of the accident, Grouleau worked as a roofer for Armor. On November 17, 1989, he and Tony Cortez took turns driving the truck back from a jobsite in Michigan." As they rode into Illinois, sleet and snow began to fall. It became colder, and ice patches started forming on the road. When the two men stopped at the Lake Forest Oasis, the truck was “running fine.” At about 3 or 4 p.m., as Grouleau drove north, the truck started to overheat, indicating to Grouleau that a fan belt had broken. The power steering was impaired and an “idiot light” came on, indicating overheating or problems with oil pressure. .

Because the engine was overheating, Grouleau pulled the truck onto the right shoulder of the road. As he recalled at his deposition, the truck was completely off the roadway. In fact, the rear wheels of the truck were in the grass, with the right rear double tires on the edge of the grass not far from a ditch. Grouleau went as far off the roadway as he considered safe. Grouleau and Cortez turned on the flashers on the truck. An individual whom Grouleau did not recognize came along to assist the men. The truck had no radio, so Cortez and the other man walked north to call for a tow truck. After a half hour, Cortez returned and told Grouleau he had asked a State Police officer to call a tow truck. The officer agreed to do so but said that it would take a while because there had been so many accidents.

About a half hour later, Tom Pulda, an Armor sales representative, drove along and offered Grouleau and Cortez help. The snow was increasing, the temperature was falling, and ice was on the roadway. At about 4:30 or 5 p.m., Pulda, Grouleau, and Cortez rode back to Wisconsin in Pulda’s car. Pulda called the State Police by car phone and arranged for them to send a tow truck to remove the Armor truck as soon as possible. Pulda also called Armor’s owner. Grouleau did not recall whether this was before or after the call to the police. The owner told Pulda to leave the truck there; in the morning, someone would come to repair the truck unless it had been towed away. The men drove off, leaving the truck where it was parked. En route to the Wisconsin border, Grouleau noticed the aftereffects of three accidents that Cortez had mentioned. These accidents involved both multivehicle collisions and cars sliding off the roadway into ditches.

Grouleau admitted that before he left in Pulda’s vehicle he turned off the truck’s flashers. He put no warning devices behind the truck as he knew that his truck contained no such devices. He did not believe Pulda’s car had any such warning devices either.

In his March 28, 1991, deposition, Thomas Pulda testified that, on the morning after the accident, Armor’s manager called him at home and informed him about the disabled truck. Pulda did not witness the accident, but he noticed the disabled Armor truck as he was driving a pickup truck back from Chicago. Grouleau’s truck was parked on the shoulder, an area designated for disabled vehicles, and Grouleau was present. Pulda did not recall whether the truck’s flashers were on at this time. About an hour later, Cortez returned and explained that it would be difficult to get assistance. Pulda drove off with Cortez and Grouleau.

Before he left the scene, Pulda called Armor’s owner and told him about the abandoned truck. He next contacted the State Police, explained the situation to a trooper, and asked for his advice. The trooper told Pulda that the police would tow the truck if Armor’s employees left the truck there. Because there had been so many accidents that day, the trooper was not sure if the police could tow the truck away that night. Pulda and his fellow Armor employees decided to leave the towing to the police. At the deposition, Pulda did not recall seeing any flashers on the abandoned truck as he drove away. Also, he did not recall that any Armor employees had put out any warning devices, such as markers or reflective triangles. The idea of putting up such warning devices did not occur to Pulda when he was at the scene. Pulda’s truck carried no such warning markers.

Defendants further submitted the March 27, 1991, deposition of Joshua Block. At the time of his deposition, Block was 18 years of age. He and Smith had been close friends. Block did not remember the accident itself, but he remembered the circumstances preceding the collision. On Friday, November 17, 1989, Block and Smith left Gurnee at about 4:30 p.m. to go to a party in De Kalb. It was snowing steadily and they arrived at the party at about 7 p.m. Block drank some beer that evening but did not feel at all intoxicated when he drove away at about 10 or 10:30 p.m. On the way back, Block stopped for food at a Burger King at the O’Hare oasis. When they left the Burger King it was snowing lightly and the temperature was below freezing. The road was slippery in spots and had been plowed to some extent. Block drove north in the outer right lane of Interstate 94. The speedometer gauge light was out, and neither front window would close completely; otherwise, the car was not defective.

Block drove under Route 60, which crosses over the top of the tollway. He did not specifically recall passing the Lake Forest oasis; however, he recalled that when his car was north of the Lake Forest oasis but an uncertain distance south of O’Plaine Road, he was thinking of exiting at Belvidere Road. At this point, a sheet of snow from a passing car in the middle lane flew onto Block’s windshield, obscuring" his view. Block could not say in his deposition how far south of milepost 66 he was when the snow hit his windshield. Also, he did not know where in relation to the accident this problem arose. He did not recall whether he turned on his windshield wipers to clear off the snow. He recalled nothing of what happened between the time the snow was thrown onto his windshield and the time he woke up in a hospital after the accident. Before the collision, he never saw the disabled Armor truck and did not know whether the truck was in any lane of traffic when the collision occurred. Block could not say whether the condition of the road or of the car had anything to do with the accident. To his knowledge, there had been no inspection of the car to determine whether mechanical failure had been a cause of the crash.

Defendants submitted the deposition of Illinois State trooper James Kirkpatrick. On November 17, 1989, Kirkpatrick went to work before his normal 7:30 p.m. starting time because it was snowing heavily. He drove to the Tri-State Tollway with instructions to respond to calls for help in the area. Defendants’ truck was one of several abandoned vehicles that Kirkpatrick observed before the accident. He testified that, as best he could estimate, he saw defendants’ truck at about 12:30 a.m. At this time, the taillights were not illuminated. No flares or reflective markers were behind the truck and no flashers were operating even though an abandoned vehicle is required to display some kind of warning. Kirkpatrick testified that the State Police have no set policy on whether to record the sighting of an abandoned vehicle. Customarily, Kirkpatrick advised operators to move such vehicles within two hours, although he could not say that this was State policy. He might place a red sticker on an abandoned vehicle. He did not notice any such sticker on defendants’ truck when he first saw the truck, and he placed no sticker on the truck before the accident. Kirkpatrick never spoke to the truck’s operator or owner. He gave priority to disabled vehicles that were all or partly on the roadway and thus more hazardous than those, such as Grouleau’s truck, that were completely off the roadway.

At 12:44 a.m., Kirkpatrick was dispatched to the accident scene. He arrived at 12:53. One of the truck’s taillights was on. No other lights were on. No reflective markers were in the roadway or on the shoulder. The truck was completely off the paved part of the road. There was no snow on the northbound part of Interstate 94 or on the shoulder near the accident scene. Some snow was in a ditch about two feet off the roadway. The roadway was not icy. According to Kirkpatrick’s accident report, there were no roadway defects that might have contributed to the accident. The road was straight and level and the surface was dry and clear. It was no longer snowing, and the temperature was below freezing.

Block was lying in the center lane, receiving paramedical treatment. Kirkpatrick saw ho skid marks on the shoulder or on the area of the pavement from which Block’s vehicle had departed. He saw no marks at all indicating exactly where the vehicle went off the roadway and entered the shoulder. From Kirkpatrick’s inspection of the wreckage, it appeared that the right front section of Block’s vehicle hit the left rear part of the truck. Block’s vehicle made tire marks after it hit the truck. Kirkpatrick’s report noted that there was no rain, snow, or ice on the windshield of Block’s vehicle and that apparently nothing obscured Block’s vision at the time of the accident. About three hours after the collision, Kirkpatrick talked to Block at the hospital. Block remembered nothing about the accident itself. Block did recall that snow had been thrown onto his windshield, but he did not remember where or when this happened.

Plaintiff responded to the summary judgment motion, attaching Grouleau’s deposition, excerpts from the transcripts of the December 21, 1989, coroner’s inquest into Smith’s death, and an affidavit from Joshua Block, dated March 21, 1990. Plaintiff argued that evidence supplied by both parties allowed a fact finder to conclude that Grouleau had been negligent in failing to activate any emergency warning devices or lights after he abandoned the truck. Plaintiff noted that Phil Weber’s affidavit described actions undertaken well before either inspection by Officer Kirkpatrick, who found no warning devices near the truck. Also, there was evidence that the accident scene was slightly north of a curve in the roadway, that the area was not well illuminated, the truck was white, and there was evidence that there was snow on the shoulder, all contributing to the danger of a foreseeable accident involving the abandoned truck.

Plaintiff asserted she had raised a factual issue as to proximate cause, because it was foreseeable that defendants’ failure to warn that the truck was on the shoulder helped to cause the collision. In his affidavit, Block stated that because there was no warning that the truck was on the shoulder, the snow thrown onto his windshield by a passing car before he reached the O’Plaine overpass prevented him from seeing the truck. Had Block known the truck was on the shoulder, he would have steered left when the snow hit his windshield. Thus he would have avoided the accident. Plaintiff argued that the failure to warn of the truck created a foreseeable risk of harm, as it is well known that vehicles often drive onto the shoulder for valid reasons.

At the coroner’s inquest, Officer Kirkpatrick testified that when he reached the accident scene Block’s vehicle was lying sideways in the inside lane of travel, and Block and Smith lay in the roadway. Grouleau’s two-axle box truck had been pushed “into the right ditch line.” Kirkpatrick concluded that Block’s vehicle ran off the road and struck the truck, which had been parked on the right shoulder. The windshield of Block’s car was gone. After interviewing Block, Kirkpatrick concluded that the condition of Block’s windows did not obscure Block’s vision.

Kirkpatrick stated that Interstate 94 is a six-lane highway with three lanes in each direction and completely paved shoulders. There is a straight stretch of road about three-quarters of a mile long immediately north of a sweeping curve. A driver emerging from the curve would have driven slightly over a quarter mile before catching up to the abandoned truck. The area was not well lighted. Because the truck had no warning lights, markers, or flares, an approaching motorist would have no warning that it was there until he saw the truck in his headlights. The weather on November 17 and 18 was extremely cold, with snow and ice forming. At the time of the occurrence, the roadway was mostly dry from salting, but the shoulders were still snow covered and slippery. It did not appear to Kirkpatrick that the icy conditions had caused Block’s vehicle to lose control. Kirkpatrick saw no skid marks prior to the point of impact between the two vehicles. “Yaw marks” were in the roadway where Block’s vehicle had skidded sideways crossing the lanes. From the accident scene and photographs of the damage, Kirkpatrick concluded that Block’s car had gone underneath the truck’s deck plate, which was about four feet above ground. Although he was not certain, Kirkpatrick saw no indication that Block’s vehicle went out of control before it struck the truck. When Kirkpatrick saw the truck before the accident, the truck was completely on the shoulder, although Kirkpatrick could not recall how far off the roadway it was parked.

Deputy Coroner Chris Dreyer testified that he arrived at the accident scene at about 1 a.m. on November 18. Unlike Kirkpatrick, he found the road icy, and his car fishtailed as he turned north on the way to the scene. The accident site itself appeared to be dry, as Kirkpatrick had said.

The trial court granted defendants’ motion for summary judgment. Plaintiff timely appealed. The parties agree that the resolution of this appeal turns on whether the trial court was correct that, as a matter of law, any negligence on defendants’ part did not proximately cause Smith’s fatal injuries.

Summary judgment is proper if the pleadings, depositions, affidavits, admissions, and other matters on file demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992).) Summary judgment is a drastic means of disposing of litigation and should be granted only when the moving party’s right .thereto is free of doubt. (Gonzalez v. State Farm Mutual Automobile Insurance Co. (1993), 242 Ill. App. 3d 758, 760.) The court should construe the evidence strictly against the movant and liberally in favor of the opponent. (Richter v. Burton Investment Properties, Inc. (1993), 240 Ill. App. 3d 998, 1001.) A plaintiff against whom summary judgment is sought need not prove her case at this preliminary stage, but she must present some factual basis that would arguably entitle her to judgment. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.) If reasonable persons could draw different inferences from undisputed facts, an issue of fact exists. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272.

To recover in negligence, plaintiff ultimately would need to prove that (1) defendants owed Smith a duty of due care; (2) defendants breached that duty; and (3) defendants’ breach proximately caused Smith’s injuries. (See Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) Defendants do not argue that plaintiff has not raised a factual issue on the first two of these points. We agree with plaintiff that the substantial evidence that defendants violated numerous safety statutes in failing to warn of the truck’s presence on the shoulder suffices to raise a factual issue as to defendants’ breach of a duty of due care to Smith, a passenger in a vehicle properly in the lane of traffic next to the shoulder. The violation of a safety statute is prima facie evidence of a breach of a duty of due care where the injured party is within the class of persons that the statute is intended to protect. (Fi lipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 785; Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 891.) Furthermore, defendants have not denied that the failure to remove the truck from the shoulder within a reasonable time could amount to negligence.

Thus the pivotal issue is whether plaintiff adequately supported her assertion that defendants’ alleged negligence was a proximate cause of Smith’s injuries. A proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Ball v. Waldo Township (1990), 207 Ill. App. 3d 968, 973, relying upon Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361.) An injury may have more than one proximate cause, and a defendant may be liable even if his negligence is not the sole proximate cause of the plaintiff’s injuries. Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17; Young v. Gateway Transportation Co. (1975), 26 Ill. App. 3d 864, 872; Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 154.

Every inquiry into whether a defendant’s negligence proximately caused a plaintiff’s injury is really a twofold inquiry into (1) whether the defendant’s negligence was a cause in fact of the injury; and (2) whether the defendant’s negligence was sufficiently closely connected with the injury so that, given considerations of justice or policy, the defendant should be held liable for the injury. The plaintiff has the burden to satisfy each of these two prongs of inquiry. (See Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 1080, quoting W. Prosser, Handbook of the Law of Torts §41, at 236 (4th ed. 1971).) What constitutes the proximate cause of an injury is ordinarily a question of fact to be decided by the jury. It can be a question of law only where there can be no reasonable differences in the inferences to be reasonably drawn from the undisputed facts. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 90.

It is our opinion that the evidence before the trial court in the present case created a triable issue of material fact as to whether defendants’ actions in abandoning the truck on the shoulder during serious weather conditions without the use of statutorily required warning devices constituted a proximate cause of the collision. Where an injury is reasonably foreseeable — even if not in the precise form that it actually takes — then the connection between the negligence and the injury is not too remote to insulate the defendant from liability. (Novander v. City of. Morris (1989), 181 Ill. App. 3d 1076, 1081; Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 786.) Thus, an intervening act will not constitute an “intervening efficient cause” of the injury if the defendant could reasonably have foreseen the intervening act. Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 15.

Here, we conclude that defendants did not show as a matter of law that Block’s erratic driving was an intervening efficient cause of Smith’s fatal injuries. The mere fact that the truck was entirely off the roadway at the time of the collision is not dispositive. As is suggested by the very existence of the statutes requiring the use of warning devices when trucks are disabled on a shoulder, the fact that the truck was entirely off the roadway does not by itself demonstrate that the danger caused by its presence was not reasonably foreseeable. It might be reasonably anticipated that during weather conditions impairing visibility a vehicle might for some reason temporarily stray across the line of the shoulder and strike an unlighted truck parked in proximity to the lane of traffic.

We agree with plaintiff that the reasoning of Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, applies to this case. In Kinsch, the car in which the plaintiff’s decedent was riding drove off the road and onto the shoulder, where it struck a large cement block that the defendant had left about three feet off the roadway. The impact fatally injured plaintiff’s decedent. The jury found that both the driver and the defendant had been negligent, and it awarded damages pursuant to the Wrongful Death Act. On appeal, the defendant argued that as a matter of law the driver’s negligence was the sole proximate cause of these injuries. In rejecting this assertion, the 'appellate court noted that the defendant’s negligent act need not be the sole cause of the accident for plaintiff to recover. It was sufficient that two negligent acts combined to produce the injury. (Kinsch, 54 Ill. App. 2d at 154.) Furthermore, even though the driver had been negligent, the danger that the defendant’s negligence would cause injury of some sort was reasonably foreseeable. The court observed that it was common knowledge that even careful drivers occasionally need to use the shoulder of the road for emergencies or other situations. The court continued:

“We think that any prudent man would foresee that by placing a massive obstruction on the shoulder of a road within 3 or 4 feet of the edge of the roadway, without illuminating it or erecting signs warning of its presence, injury might result to those who, in emergency situations or otherwise, might stray from the roadway itself onto the shoulder.” Kinsch, 54 Ill. App. 2d at 155.

The cases upon which defendant relies are distinguishable. In Ball v. Waldo Township (1990), 207 Ill App. 3d 968, the driver of the car in which the plaintiff was riding elected to leave the roadway, drive through a bean field, then travel back across the road, striking a culvert owned by the defendant municipality. The appellate court upheld a grant of summary judgment for the defendant, noting that the driver’s extraordinary deviations from normal driving behavior were the intervening efficient cause of the accident. As Kinsch implies, the use of a highway shoulder is distinguishable from the unforeseeable actions of the driver in Ball.

In Salinas v. Werton (1987), 161 Ill. App. 3d 510, the defendant left a disabled tow truck off the roadway with all the truck’s safety lights activated. The plaintiff’s decedent stood near the tow truck. Soon, a motorist drove his van off the road, striking and fatally injuring the decedent. In affirming summary judgment for the owner of the tow truck, the appellate court held that the owner’s failure to place flares alongside the truck was not the proximate cause of the decedent-bystander’s death.

The Salinas court observed that plaintiff’s only causation testimony was speculation by an expert that the placement of flares would have caused the driver of the van to slow down. Here, the driver of the vehicle in which plaintiff’s decedent rode testified (however credibly is not for this court to say) that he would have shifted lanes had there been any lighting in the vicinity of the defendants’ truck. Also, in Salinas, the truck itself was not involved in the accident, in contrast to the present case. Finally, the Salinas court observed that the plaintiff produced no evidence that the operator owed or breached a duty to the decedent.

In Henderson v. Beckman Texaco (1991), 213 Ill. App. 3d 1054, plaintiff’s decedent was killed when the automobile he was driving went off the roadway and crashed into the front of a tow truck that was at rest on the shoulder adjacent to the median. The truck had been sent there to tow away a police car that had become stuck in the median. The tow truck had its yellow emergency lights on, but plaintiff alleged that the operator had failed to place any warning markers in the vicinity.

. In affirming the grant of summary judgment, the Henderson court observed that the operator of the tow truck was under no duty to provide warning flares or signals. Moreover, even if such a duty existed, the breach of that duty did not proximately cause decedent’s death. The court observed that there was simply “nothing in the record to support any inference that [the failure to use warning devices] contributed in any way to the collision which caused the decedent’s death.” Henderson, 213 Ill. App. 3d at 1061.

The present case is distinguishable from Henderson. First, the plaintiff here, unlike the plaintiff in Henderson, did produce some evidence that defendants’ negligence was a cause in fact of the accident that killed the plaintiff’s decedent. Block, the driver, stated in an affidavit, “If I had known the truck was there on the shoulder I would have steered left when the snow hit my windshield.” We note further that in Henderson the truck’s lights were flashing; here, there was at least a factual issue as to whether defendants’ truck was illuminated at all. It must also be noted that the Henderson court’s comments concerning proximate cause were secondary to its primary basis for upholding summary judgment for the defendants, i.e., that because the tow truck was not a “disabled vehicle,” defendants had no duty to use warning devices.

We find the principles discussed in DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, to be inapplicable to the resolution of the present case. In DiBenedetto a motorist lost control of his vehicle, crossed the oncoming lane of traffic as well as a five- to seven-foot shoulder, and overturned in a drainage ditch adjacent to the shoulder. Our. supreme court held that the defendant township had no duty to keep the ditch safe for vehicular traffic, and further commented that the proximate cause of the accident was the loss of control of the vehicle and its being driven off the traveled way. The court specifically noted, “There is no claim here that the traveled portion of the road, including the shoulder, was anything but safe.” (Emphasis added.) (DiBenedetto, 153 Ill. 2d at 70.) The present case, on the other hand, involves an alleged breach of a recognizable duty, imposed by traffic safety laws, and it has not been determined that the car driven by Block was completely out of control, as in the DiBenedetto case, before it ventured onto an established shoulder.

It is a reasonable inference that Block may have driven differently had he received any warning of the truck’s presence so near the edge of the highway, and that such a change in his driving would have avoided the accident. Although the cause of Block’s driving off the road is not entirely discernible from the record of the summary judgment proceedings, it is not clear that the accident was the result of any unforeseeable or extraordinarily careless behavior on his part. The weather conditions were poor; there had been numerous accidents previously; and whether Block was intoxicated at the time of the accident is debatable.

Constrained as we are to construe the evidence liberally in favor of plaintiff, we conclude that she raised a genuine factual issue as to whether defendants breached a duty which constituted a proximate cause of decedent’s death. Summary judgment for defendants was therefore inappropriate.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McLAREN and COLWELL, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. McCAIN, Defendant-Appellant.
    Second District
    No. 2 — 92—0942
    Opinion filed August 5, 1993.

      Donahue, Sowa & Bugos, of Geneva, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Robert F. McCain, entered a plea of guilty in the circuit court of Kane County to one count of possession of a controlled substance containing cocaine with intent to deliver in an amount of more than 15 but less than 100 grams (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))) and was sentenced to 13 years’ imprisonment. Defendant filed a timely appeal from his sentence, asserting that the trial court abused its discretion by considering improper factors in aggravation and failing to give proper weight to defendant’s rehabilitative potential.

The facts relevant to the issues are as follows: As the result of an ongoing investigation involving agents for the Federal Drug Enforcement Agency and local police personnel, defendant was arrested on January 20, 1991. At the time of his arrest, defendant was in possession of two handguns, an electronic pager, a cellular telephone, approximately $550, and a clear plastic baggie wrapped in masking tape. The baggie contained two separate packages of a white powdery substance weighing 305.5 and 626.3 grams, respectively. The substance in each package was determined to be cocaine. A plea agreement was reached that allowed defendant to enter an open plea to the charge of possessing, with intent to deliver, between 15 and 100 grams of a controlled substance containing cocaine, but permitting the State to argue the actual amount of cocaine seized as an aggravating factor. All other charges were dismissed pursuant to the plea agreement.

The State called Officer Wayne Biles of the Aurora police department to testify at the sentencing hearing. Biles described his involvement in defendant’s arrest. Biles stated that, in his capacity as an undercover narcotics investigator, he had experience in purchasing cocaine. He stated that cocaine commonly sold on the street at $100 a gram. Biles testified that electronic pagers and cellular phones were used by drug dealers and their clients as a form of communication.

After his arrest, defendant was interrogated by Biles and a Federal drug enforcement agent. Defendant stated that he purchased his cocaine from Marcos Martinez, and in the past he had purchased cocaine in amounts between three ounces (approximately 84 grams) and 250 grams. Defendant stated that he and Martinez had planned to deliver five kilograms of cocaine during the previous week at a price of $29,500 per kilogram, but that for some reason the delivery did not occur. Defendant also told Biles that Martinez had a deal pending to receive 100 kilograms of cocaine from his “source.” Defendant described the car driven by Martinez’ drug source and stated that it had a secret compartment. Biles testified that drug dealers had been known to use secret compartments in cars to store cocaine. Defendant also admitted that he was approached by an individual named David Catalano who wanted to sell cocaine for him. Biles stated that defendant was cooperative with the investigation and had provided names of people involved in narcotics transactions.

Biles testified that it was common for cocaine to be “stepped on” (i.e., mixed or “cut” with other material to make its volume larger) as it passed from a source to the street. This commonly happened three times before the drugs were sold on the street. Based upon this fact, Biles stated that the street value of the cocaine seized, assuming it had been sold in one-gram amounts, could range from approximately $90,000 to three times that much depending upon how many times it had already been “stepped on.” The court noted that recent testimony presented to it by experts had led it to believe that the wholesale price of a kilogram of cocaine ranged from $25,000 to $28,000. Biles responded that his experience was limited to smaller drug sales, basically $100-per-gram transactions, and his estimate of the street value of the cocaine seized was based upon that experience.

Lisa Martin testified that she has known defendant for 12 to 13 years, and she had been engaged to marry defendant since Christmas of 1987. She testified that defendant was an insurance salesman during the previous year or two. He did not wear extravagant jewelry or clothes. Martin stated that she had never seen defendant with a lot of money at his disposal, but she heard people say he had it, and she would say he did. She testified that just prior to his arrest, defendant had changed into a different person, and she had stopped coming around because she didn’t like that person. Martin admitted that she had an idea that he was selling drugs based on rumors and what other people told her. Martin stated that since defendant had been incarcerated she noticed a change in his personality. She described him to “be more loving” and noted that he had taken up religious practices. She admitted that defendant’s change of heart could possibly be motivated by the fact that he was facing a prison sentence.

Sarah McCain, defendant’s mother, testified that defendant has always lived at home with her and his father. She stated that prior to his arrest he was selling insurance, stocks, and bonds. He would pay the phone bill, rent, and some of the other household expenses. Sarah McCain testified that defendant did not live an extravagant lifestyle, nor did she regard him as having large amounts of money. She admitted her knowledge that defendant had a gun.

Luther Roberts, who was employed by both Caterpillar and as a pastor in Amboy, testified that he had known defendant since about 1969. He stated that defendant and his family previously attended his church. Since March 1991, Roberts had visited defendant in jail 10 to 15 times, and he had talked with him about religious matters on many occasions. Roberts stated that he initially saw a lot of bitterness in defendant’s demeanor but after a few visits he saw “a hundred-eighty degree turnaround,” and they began reading and studying together. Roberts stated that he believed defendant should be released because he had paid for what he had done. Roberts admitted that he did not know the extent of defendant’s drug-dealing activities.

Defendant testified that on the day of his arrest, he had followed an individual named Ron White to the house of another individual known as Bob. Bob was a friend of White’s. Defendant brought about 300 grams of cocaine with him that he had received from Martinez. He stated that he had never made such a large purchase in the past, but he usually purchased about three ounces of cocaine at a time every two or three weeks. At the house, White mixed cocaine with a powder they had obtained from a local health food store. Defendant said this was done to increase the weight of the cocaine. Defendant testified that he was going to sell the cocaine to White and that White had increased the cocaine because his purchaser, an individual named Jack Mann, would buy only in kilogram amounts. Defendant said that he gave White approximately 300 grams of cocaine to be mixed with the powder.

Defendant admitted that he had been selling drugs for about six to nine months. He stated he always sold cocaine by the gram, rather than in larger amounts. Defendant stated that his customers were his friends, and he would charge them $50 a gram. He denied ever selling in kilogram amounts. Defendant denied telling investigators that in the past he had purchased 250 grams of cocaine from Martinez for $1,000. Defendant admitted that he told investigators that Martinez was supposed to get a large shipment from his source, but defendant denied saying that the amount was 100 kilograms. Defendant stated that he arranged the drug transaction which involved White so that he could obtain money. Defendant testified that he was employed on a commission basis selling insurance at the time and made $200 to $300 a week. He admitted abusing alcohol, marijuana, and cocaine on a regular basis and noted that his drug use had gradually increased during the nine months prior to his arrest.

Defendant admitted that he had two handguns with him when he was arrested, one stuffed in his waistband and the other in his pocket. Defendant stated, however, that he did not think that they were loaded. He denied carrying the weapons for protection and denied intending to use them if he had to. Defendant asserted that he used his electronic pager and cellular phone for his insurance customers, and White was the only one who ever paged him or talked with him on the phone about drug transactions.

At the close of the testimony, the trial court noted that defendant’s conviction was punishable by a term of imprisonment ranging from 6 to 30 years (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))). The trial court discussed the applicability of various factors in mitigation (Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.1 (now 730 ILCS 5/5-5-3.1 (West 1992))) and aggravation (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2 (now codified, as amended, at 730 ILCS 5/5 — 5—3.2 (West 1992))).

With respect to the mitigating factors, the trial court noted that it could not characterize defendant’s conduct as neither causing harm nor threatening'serious harm to another “because anybody that possesses drugs with intent to deliver has to know that the drugs could cause harm to another.” The trial court also found that this was not a case where the defendant did not contemplate that his criminal conduct would cause or threaten harm because “the use of drugs could result in certain damage and death if there is an overdose.” The trial court credited defendant for his lack of criminal record and stated that, in light of defendant’s character and attitude, he was unlikely to commit another crime. The trial court further stated that it was hard to understand how someone with defendant’s background could become involved, in the type of crime charged, concluding that the only reason for it could have been greed.

With respect to the aggravating factors, the trial court remarked, “The [defendant or certainly anybody that sells drugs knows that somebody could be harmed, be overdosed. It certainly is not good for people’s health. So, that would be held against you.” The court also remarked that defendant was in the process of attempting to receive compensation for selling the cocaine he possessed and “that kind of has to be looked at.” The trial court went on to comment that the need to deter others from committing the same crime “is so important in drug cases that we have to put a little asterisk at that. We have to sentence people *** who possess with *** the intent to sell to get more people not to do it. And so that is very much in my mind.” The trial court also commented that defendant started out with one amount of cocaine, had that amount doubled, and intended to sell the whole amount of the cocaine. The trial court concluded that a sentence in the six- to eight-year range, as urged by defendant, was entirely inadequate under the circumstances of the case and instead imposed a term of 13 years’ imprisonment.

Defendant filed a petition for rehearing, urging that the trial court had placed excessive weight on the amount of cocaine involved and imposed a “severely harsh” sentence and that the sentence did not conform with the spirit of the law, defendant’s rehabilitative needs, and the mitigating factors presented in the case. The trial court denied defendant’s motion, stating:

“I did look at the amount of drugs that were involved here. Even your original amount of 300 grams is a lot. That makes you more than the average person who I see come through my courtroom here who deals with drugs. *** [M]ost of the people I see come through here, and I write it down, are running about less than an ounce, $900 worth of cocaine. ***
*** I get people with small amounts. And the people with the small amounts, admittedly, I think my record will reflect, get sentenced somewhere between six and 10, six and eight. And if they have prior criminal involvement *** it goes up higher.
*** I know this wasn’t a super X sentencing. But I have to look at the amount of the controlled substance ***.
And it’s a lot of *** cocaine. It’s a major type, *** big time case.”

The trial court added that it had considered the sentencing structure established by the legislature as a guideline of the sentencing range society deems appropriate given the quantity involved. The trial court also commented that it had given weight to the testimony of defendant and his family.

Defendant argues that the trial court improperly considered as aggravating factors that defendant’s crime caused harm and that defendant intended to be compensated for the crime. Defendant also contends that the trial court failed to give proper weight to defendant’s rehabilitative potential. The State responds that the trial court properly sentenced defendant and any inappropriate factors which it considered were insignificant to that determination. Although defendant failed to raise the issue of consideration of improper aggravating factors during his motion for reconsideration, we note that the question affects defendant’s fundamental right to liberty, and we may therefore address the issue which would otherwise have been deemed waived. See People v. Martin (1988), 119 Ill. 2d 453, 458.

The imposition of a sentence is a matter of judicial discretion, and the standard of review to determine whether a sentence is excessive is whether a trial court abused that discretion. (People v. O’Neal (1988), 125 Ill. 2d 291, 297-98; People v. Rivera (1991), 212 Ill. App. 3d 519, 525.) This is because the trial judge is normally in a better position than a court of review to consider such factors as credibility, demeanor, general moral character, mentality, social environment, habits and age, and accordingly determine the punishment to be imposed. (O’Neal, 125 Ill. 2d at 298; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Therefore, a trial court’s sentencing decisions are entitled to great deference and weight. Perruquet, 68 Ill. 2d at 154; People v. Gard (1992), 236 Ill. App. 3d 1001, 1016.

It is improper for a trial court to rely upon an aggravating factor which is implicit in the crime charged because the legislature is presumed to have provided for such factors when it established the applicable penalty range. See People v. White (1986), 114 Ill. 2d 61, 65-66 (improper to consider the general fact that the victim is a child as aggravating a conviction of aggravated battery to a child); People v. Conover (1981), 84 Ill. 2d 400, 404-05 (improper to consider the fact the defendant was compensated by proceeds from the sale of stolen property as aggravating a burglary or theft conviction).

It is possible to commit the crime of delivering a controlled substance without any form of compensation. It has been recognized, however, that few drug deliveries are made as gifts, and compensation is an implicit factor in most drug transactions; therefore, it is generally improper to consider compensation to be a factor in aggravation. (See People v. Smith (1990), 198 Ill. App. 3d 695, 698-99; People v. Harrison (1987), 156 Ill. App. 3d 39, 42; People v. Berry (1984), 122 Ill. App. 3d 1035, 1036-37; see also Conover, 84 Ill. 2d at 405 (compensation in the form of robbery proceeds was implicit in the crime of robbery and therefore improperly considered as a factor in aggravation).) We find this same principle to be applicable in cases involving the possession of a controlled substance with intent to deliver. Thus, the mere fact that compensation is expected by one who possesses a controlled substance with intent to deliver should not be considered as an aggravating factor. We note, however, that the amount of profit a defendant derives from a criminal enterprise, and the actions taken to maximize that amount, reflect on the nature of the crime. The amount of profit can relate to a number of proper sentencing considerations such as the extent and nature of a defendant’s involvement in the particular criminal enterprise, a defendant’s underlying motivation for committing crime, the likelihood that a defendant will commit similar offenses in the future, and the need to deter others from committing similar crimes.

Here, the trial court observed that the defendant was attempting to receive compensation for his actions, and it commented that that “kind of has to be looked at.” The trial court concluded that greed had caused defendant to become involved in drug dealing. Also, while commenting on the amount of drugs involved, the trial court noted that defendant had willingly participated in multiplying the quantity of the substance and had intended to sell the whole of this increased amount. The court’s comments at sentencing and in response to defendant’s motion for reconsideration, read as a whole, focused on defendant’s role in trafficking cocaine, the sheer amount of cocaine involved, the fact that the defendant’s acts were motivated by greed, and the need to deter others from committing similar crimes in the future. We conclude that the court did not purport to increase defendant’s sentence because of the mere fact that he intended to receive payment for delivering the drugs.

It is well recognized that drugs and drug-related crimes cause great harm to our society. The extent of this harm is demonstrated in the criminal justice system on a daily basis. In that regard, some courts have noted that it is improper to consider this general societal harm as an aggravating factor in a drug case. (See People v. Atwood (1990), 193 Ill. App. 3d 580, 592; People v. Maxwell (1988), 167 Ill. App. 3d 849, 852. But see People v. Hoskins (1992), 237 Ill. App. 3d 897, 900.) If a trial court intends to consider the societal harm defendant’s conduct threatened to cause as an aggravating factor, the record must demonstrate that the conduct of the defendant had a greater propensity to cause harm than that which is merely inherent in the offense itself. (See Atwood, 193 Ill. App. 3d at 592-93.) For example, defendant armed himself with two handguns when he chose to commit the underlying crime in this case. If the trial court had found that he intended to use those weapons to implement his criminal intentions, or if he had committed an act of violence in the course of the underlying crime, then that fact could be considered as an aggravating circumstance.

It is not improper per se for a sentencing court to refer to the significant harm inflicted upon society by drug trafficking. It is important that defendants understand why they are subject to the penalties provided by law and why they have received their particular sentences. The harm that the crime causes society is an inherent consideration which underlies the basic range of penalties specified by the legislature. Commenting on the problems caused by drug-related crime encourages rehabilitation by providing a context in which a defendant may develop feelings of remorse. We do not wish to discourage courts from addressing such relevant considerations, but we suggest that sentencing courts attempt to segregate such general commentary from the balancing of sentencing factors.

The following factors in mitigation are provided by statute: (1) the defendant’s criminal conduct neither caused nor threatened serious physical harm to another; and (2) the defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005-5-3.1(1), (2) (now 730 ILCS 5/5-5-3.1(l), (2) (West 1992)).) It is our opinion that the trial court correctly determined that the harm inherently caused by drug-related crimes rendered both of these mitigating factors inapplicable.

The court might have also found inapplicable the first factor in aggravation provided under section 5 — 5—3.2 (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(1) (now codified, as amended, at 730 ILCS 5/ 5 — 5—3.2(1) (West 1992))), i.e., that defendant’s conduct caused or threatened serious harm, because the general harm caused by the distribution of drugs was incorporated by the legislature when it provided the applicable sentencing range. However, because defendant entered a guilty plea to a charge of possessing substantially less cocaine than was actually involved in this case and agreed to allow the actual amount to be argued as a factor in aggravation, the court could properly conclude that the minimum mandatory sentence set by the legislature did not adequately address the additional threat of harm defendant’s crime posed to society in this particular case. We conclude, therefore, that under the particular circumstances of this plea agreement there was no error in the trial court’s weighing any special harm threatened by the larger quantity of drugs shown by the evidence.

Where a trial court has considered an improper aggravating factor in sentencing, and a reviewing court is unable to determine the weight given to an improper factor, the cause must be remanded for resentencing. (People v. Bourke (1983), 96 Ill. 2d 327, 332.) However, if it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remand is not required. (Bourke, 96 Ill. 2d at 332.) Because, here, the record reflects that neither disputed factor was significant to the trial court’s ultimate sentencing decision, even if we were to hold that the trial court improperly considered the matters of compensation and threat of harm, we would not be required to remand for resentencing. Specifically, it is evident from the arguments and comments during defendant’s motion for reconsideration that the court imposed the particular sentence in large part because of the extremely significant amount of cocaine involved in this case. It is also noted that neither compensation nor threat of harm was mentioned by the court during that hearing when it explained the reasoning behind its sentencing decision. If any error occurred in the judge’s consideration of the factors mentioned, we regard it as harmless. See Hoskins, 237 Ill. App. 3d at 900-01.

Defendant also complains that the trial court did not consider his rehabilitative potential. Where the defendant has presented mitigating evidence in the sentencing hearing, the reviewing court will presume that the sentencing court considered it, absent some indication to the contrary. (People v. Phillips (1992), 226 Ill. App. 3d 878, 891; People v. Powell (1987), 159 Ill. App. 3d 1005, 1011.) Furthermore, where, as here, the sentencing court examines the presentence report, it is presumed that the court took into account the defendant’s potential for rehabilitation. (Gard, 236 Ill. App. 3d at 1017; Powell, 159 Ill. App. 3d at 1011.) The only point advanced by defendant in support of this argument is a bare assertion that the trial court made no statement that it considered rehabilitative potential during sentencing or when ruling on defendant’s motion for reconsideration. A sentencing court is not obligated to recite and assign value to each factor it is relying upon (Gard, 236 Ill. App. 3d at 1016-17; Powell, 159 Ill. App. 3d at 1011), and a trial court need not place greater weight on a defendant’s rehabilitative potential than on the seriousness of the offense and the need to protect the public (People v. McDonald (1992), 227 Ill. App. 3d 92, 100). In any event, defendant’s assertion is unsupported by the record. The trial court specifically found it unlikely that defendant would commit a crime in the future. The court, however, emphasized the importance of deterring others from committing similar crimes and the large amount of cocaine involved in this offense and then imposed the sentence it deemed to be appropriate given all those considerations. We decline to presume that the court did not consider defendant’s potential for rehabilitation.

Accordingly, we conclude that the sentence imposed in this cause was not an abuse of the trial court’s discretion.

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

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE McLAREN

text:
    WISEMAN-HUGHES ENTERPRISES, INC., Plaintiff-Appellant, v. DAVID P. REGER et al., Defendants-Appellees.
    Second District
    No. 2 — 92—1001
    Opinion filed August 5, 1993.

      R. Terence Kalina, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellant.
    James R. Edwards, of Edwards, Jordan & O’Connor, of Aurora, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Wiseman-Hughes Enterprises, Inc., appeals from an order entering summary judgment in favor of David P. Reger and four other similarly situated defendants on all nine counts of its complaint and denying its motion for summary judgment. We affirm.

Plaintiff corporation is a real estate developer and owner of certain real property commonly known as Timber Oaks, Unit II, located in the County of Kane, Illinois. Pursuant to an annexation agreement dated May 8, 1989, and recorded at the Kane County recorder’s office on September 25, 1989, Timber Oaks, Unit II, was annexed into the Village of North Aurora.

Plaintiff constructed a sanitary sewer line on its property in August 1990. In September 1990, plaintiff redesigned its engineering plans to extend the existing sanitary sewer lines to property adjacent to Timber Oaks, Unit II. The plans extended the existing sewers to allow the adjacent properties to connect to the sanitary sewer constructed in Timber Oaks, Unit II, at the rear of their lots by crossing a lot line onto plaintiff’s property. On December 10, 1990, the Village of North Aurora and plaintiff entered into a recapture agreement where plaintiff agreed to dedicate the sanitary sewer extensions to the village and the village agreed to collect a recapture expense from the owners of the properties benefited by the extension and reimburse plaintiff for the construction costs. The sewer had not been dedicated to the village at the time the case was heard in the trial court.

Defendants are the owners of various lots in the Hilltop Estates subdivision, adjacent to Timber Oaks, Unit II, which were benefited by the sanitary sewer extension. Their property is not part of the Timber Ridge subdivision and is not located in the Village of North Aurora. In October 1990, defendants petitioned the Aurora Sanitary District to annex their property into the jurisdictional boundaries of the district. The petition was granted, and an ordinance was adopted on October 17, 1990, accepting defendants’ property into the district. Prior to execution of the recapture agreement, the Aurora Sanitary District issued permits to defendants authorizing them to connect to the sanitary sewer lines for a fee.

Defendants have refused to compensate plaintiff for the extension of the sanitary sewer line. The total cost for the extension was $40,792.23. Plaintiff seeks the pro-rated cost of $1,942.48 from each lot owner by asserting that defendants’ actions in connecting and using the sewer line without permission constitute a trespass, result in unjust enrichment, and violate the recapture agreement entered into between the Village of North Aurora and plaintiff on December 10, 1990.

On May 14, 1992, plaintiff filed a motion for summary judgment asserting there was no genuine issue that defendants’ actions in connecting the sewer lines to their property constitute a trespass, that defendants were unjustly enriched by utilizing the extension without paying the construction costs, and that plaintiff was entitled to collect the construction costs against defendants pursuant to the terms of the recapture agreement and section 9 — 5—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 9 — 5—1 (now codified, as amended, at 65 ILCS 5/9 — 5—1 (West 1992))). Defendants responded by filing a cross-motion for summary judgment. Defendants’ motion asserted that they were given permission to connect the sewer by receiving a permit from the Aurora Sanitary District. Defendants’ motion further asserted that section 9 — 5—1 of the Illinois Municipal Code allows recapture fees to be collected prior to the connection and use of the facilities. (Ill. Rev. Stat. 1989, ch. 24, par. 9 — 5—1 (now codified, as amended, at 65 ILCS 5/ 9 — 5—1 (West 1992)).) Since defendants have already connected the sewers, they contend that no fees are due and owing. After a hearing, the court entered summary judgment in favor of defendants on all counts of the complaint. Plaintiff’s motion for summary judgment was denied, and this appeal followed.

Initially, we note that defendants have filed a response brief consisting of a prayer for relief seeking affirmance in four sentences. This brief does not comply with Supreme Court Rule 341(f), which requires the appellee to provide an argument containing an explanation of the contentions on appeal with citation to authority and pages of the record relied upon. (134 Ill. 2d R. 341(f).) The rule states that “[pjoints not argued are waived and shall not be raised in *** oral argument, or on petition for rehearing.” (134 Ill. 2d R. 341(e)(7).) Since no argument has been asserted by defendants, we will consider this appeal as if defendants have not filed a brief at all. However, since the record is simple and the claimed errors are such that the court can easily decide them without the aid of defendants’ brief, we will address the merits of plaintiff’s contentions pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

On appeal, plaintiff contends that the court erred in entering summary judgment in favor of defendants on all counts of its complaint. The purpose of summary judgment is to determine if a triable issue exists. (Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 31.) Therefore, a movant need not prove its case at the summary judgment stage. The movant need only present some evidence in support of the motion. (Richter v. Burton Investment Properties, Inc. (1993), 240 Ill. App. 3d 998, 1001.) Summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits presented, show that there is no genuine issue of material fact such that the movant’s right to judgment is clear as a matter of law. (735 ILCS 5/2 — 1005 (West 1992); Aetna Casualty & Surety Co. v. James J. Benes & Associates, Inc. (1992), 229 Ill. App. 3d 413, 416.) The trial court is not vested with discretion when ruling on a motion for summary judgment. The standard of review is de novo, and the appellate court determines whether the trial court’s ruling was correct by considering anew the facts and law related to the case. Mendelson v. Ben A. Borenstein & Co. (1992), 240 Ill. App. 3d 605, 616; Town of Avon v. Geary (1991), 223 Ill. App. 3d 294, 299.

In this case, the trial court entered summary judgment in favor of defendants, ordered that “plaintiff have and recover nothing from any defendant,” and denied plaintiff’s motion for summary judgment. These rulings were made without entering specific findings of fact. Nevertheless, this court can affirm the decision of the circuit court on any grounds supported by the record regardless of whether the circuit court relied on those grounds or whether its reasoning was correct. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286.

Pursuant to the terms of the recapture agreement between the Village of North Aurora and plaintiff, the plaintiff agreed to dedicate the extensions of the sanitary sewer lines to the village. In return, the village agreed to assess and collect a recapture expense from the owners of the benefited property and reimburse plaintiff for the construction costs of the extension. The agreement provided that the owners of the benefited property would not be issued a connection permit from the village until each owner of the benefited property “has fully paid its proportionate share of the recapture expense.”

It is undisputed that the recapture agreement was executed subsequent to the time defendants connected to the sanitary sewer lines. It is further undisputed that the extensions to the sanitary sewer had not been dedicated to the village at the time the case was heard in the trial court. Therefore, the terms of the recapture agreement obligating the village to collect a recapture expense from the owners of the benefited property were not in effect at the time defendants connected to the sanitary sewer.

We do not deny that a plaintiff may be entitled to recover the costs for construction of the extension. We do find, as a matter of law, that this plaintiff is not entitled to recover the pro rata costs of construction from defendants by asserting defendants have trespassed, were unjustly enriched, or pursuant to the recapture agreement and section 9 — 5—1 of the Illinois Municipal Code. When plaintiff executed the recapture agreement, it assigned its right to collect the recapture expense from the owners of the benefited property to the Village of North Aurora. In turn, the Village of North Aurora agreed to assess a connection charge against the owners of the benefited property and to reimburse plaintiff for the construction expenses after it collected the fee. The damages plaintiff seeks to collect, the pro rata share of the costs of construction of the extension from each lot owner, may not be awarded on the theories alleged in plaintiff’s complaint. The pleadings, depositions, and admissions on file, together with the affidavits presented, show that there is no genuine issue of material fact. As a matter, of law, this plaintiff is not entitled to the damages it seeks on the theories alleged in its complaint.

For these reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

BOWMAN and DOYLE, JJ., concur.