text:
      In re MARRIAGE OF RONALD F. HAWKING, Petitioner-Appellant, and DAWN R. HAWKING, Respondent-Appellee.
    First District (1st Division)
    No. 1 — 91—2835
    Opinion filed December 28, 1992.

      Feldman & Halprin, of Chicago (Judith Halprin and David Feldman, of counsel), for appellant.
    James C. Tenbroeck, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner Ronald Hawking appeals from a final order of the circuit court of Cook County which dismissed his petition to terminate maintenance. The petition asserted that his ex-wife, respondent Dawn Hawking, was engaging in a conjugal relationship on a resident, continuing basis.

The sole issue on appeal is whether the circuit court properly interpreted section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)), which provides in relevant part that “the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” The circuit court interpreted this provision to allow modifications only as to installments accruing subsequent to when the nonmoving party receives “due notice” of the filing of the modification petition. We agree with this interpretation and, accordingly, affirm the dismissal of petitioner’s petition on the grounds that it was untimely as a matter of law.

Petitioner filed on Friday, March 15, 1991, his petition to terminate maintenance. According to the “notice of motion” appearing in the record, which also bears a March 15, 1991, filing date, petitioner’s counsel swore to having mailed respondent on the same date the notice of motion form and a copy of the motion by first-class and certified U.S. mail.

Petitioner’s petition referred to a March 17, 1989, judgment dissolving the parties’ marriage. The judgment, which in turn incorporates the parties’ dissolution agreement, includes two clauses relevant to this appeal. First, petitioner agreed to pay respondent as maintenance in gross $150,000 over a period of three years, with the final payment of $50,000 due “two years after entry of a judgment for dissolution of marriage.” The date of judgment was March 17, 1989, and because the two-year anniversary of this date fell on a Sunday, the parties agree on appeal that the final payment became due March 18, 1991.

Second, the parties agreed that the maintenance payments would terminate “in the event [respondent] dies, or remarries or cohabits with another person on a resident, continuing, conjugal basis prior to the date on which the last such payment is due.” Petitioner alleged in his petition that, upon information and belief, respondent was living with another person in such capacity since November 1990.

Respondent filed a motion to dismiss the petition. Her motion attached both the regular and certified mail envelopes which, contrary to respondent’s counsel’s certificate of service, bear a postmark date of Tuesday, March 19, 1991, in the p.m. hours. Respondent alleged in her motion that she received the regular mail envelope on March 20, 1991, and the certified mail envelope on March 27, 1991. Citing the recent amendment to section 510(a) of the Act, respondent requested dismissal of the petition as a matter of law because the final maintenance payment, which became due March 18, 1991, accrued prior to respondent receiving “due notice” of the filing of the modification petition as set forth in section 510(a) of the Act.

The circuit court received briefing on the proper interpretation of section 510(a) of the Act. Following argument, the court dismissed the petition as untimely as a matter of law. Petitioner’s motion for rehearing was subsequently denied. This appeal followed.

In 1974, Congress enacted title IV-D of the Social Security Act, which created a Federal-State scheme for the establishment and enforcement of child support under the auspices of the Federal Office of Child Support Enforcement. States were required to establish child support enforcement plans administered by State IV-D agencies and partially funded by the Federal government. These plans would use existing State laws and procedures to establish paternity and to establish and enforce support obligations on behalf of minor children. The purpose of title IV-D was to corral the growing cost of the Aid to Families with Dependent Children (AFDC) program. See generally Comment, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123; Dodson & Horowitz, Child Support Enforcement Amendments of 1981: New Tools for Enforcement, 10 Fam. L. Rep. (BNA) 3051 (Oct. 23, 1984).

Despite title IV-D and State legislation such as the Revised Uniform Reciprocal Enforcement Between States Act, which made it harder for child support delinquents to escape responsibility by crossing State lines, the budget of the AFDC program continued to grow. This growth continued in part because local authorities of the various States were reluctant to undertake the enforcement responsibilities delegated to them by these laws. Congress responded in 1986 with the Child Support Enforcement Amendments of 1984. Unlike the 1974 law, these amendments mandated that States enact a number of specific remedies and procedures to improve their child support enforcement programs. States faced losing title IV-D funds if they failed to timely comply. Comment, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123; Dodson & Horowitz, Child Support Enforcement Amendments of 1981: New Tools for Enforcement, 10 Fam. L. Rep. (BNA) 3051 (Oct. 23, 1984).

One of the mandates of the 1986 amendments pertained to retroactive modification of child support arrearages. This mandate is codified at 42 U.S.C. §666(a)(9)(C) (1988), with the identical regulation appearing at 45 C.F.R. §303.106 (1991). The mandate provides:

“§666. Requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement
(a) Types of procedures required
In order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:
* * *
(9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date is due)—
(A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State;
except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.” (Emphasis added.) 42 U.S.C. §666(a)(9) (1988).

Faced with the potential loss of millions of dollars, the Illinois General Assembly acted to comply with the Federal mandate. Effective May 1, 1987, Public Act 85 — 002 amended section 510(a) of the Act, and although not directly involved here, added subsection (d) to section 505 of the Act. A quick review of the latter amendment and the accompanying historical notes demonstrates that the Federal mandate prompted the legislature to act:

“(d) Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced.” Ill. Rev. Stat. 1991, ch. 40, par. 505(d).

The accompanying historical and practice note explains:

“Subsection [d] was enacted in response to the federal mandate contained in Public Law 99 — 509, effective October 21, 1986, known as the Consolidated Omnibus Budget Reconciliation Act, which further amended Title IV-D of the Social Security Act to require states to have provisions of this kind in its law as a precondition to receiving federal assistance. The federal law in requiring these procedures sought to prohibit retroactive modification of child support arrearages and thereby increase the effectiveness of the states’ child support enforcement programs. See §9103 amending §466(a) of Title IV-D of the Social Security Act, 42 U.S.C. §666(a). The amend ment to section 510(a) of this Act by Public Act 85 — 002 was also apparently dictated by this federal law. See Supplement to Historical and Practice Note to §510(a), infra.” (Emphasis added.) Ill. Ann. Stat., ch. 40, par. 505, Supplement to Historical and Practice Notes, at 179 (Smith-Hurd Supp. 1992).

When construing a statute, our primary objective is to ascertain the intent of the legislature. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297, 478 N.E.2d 326; People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.) We must, where possible, attribute some reasonable meaning to every word, clause, or section of a statute. Freeman, 106 Ill. 2d at 297.

It is presumed that every amendment to a statute is made for some purpose, and effect must be given to the amendment in a manner consistent with that purpose. (Freeman, 106 Ill. 2d at 297; People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416.) The courts must consider the language of the amended statute in light of the need for the amendment and the purpose which it serves. People v. Richardson (1984), 104 Ill. 2d 8, 16, 470 N.E.2d 1024.

In this case, it is clear that the purpose underlying the amendment to section 510(a) was to comply with a Federal mandate. Prior to May 1, 1987, section 510 provided in relevant part that “the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) Following the amendment, section 510(a) states in relevant part that “the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 40, par. 510(a).

A comparison of section 510(a) both before and after the amendment reveals that the legislature merely moved the words “due notice” from one location to another. No other significant changes were made.

A material change in language of an unambiguous statute creates a presumption, although it can be rebutted by evidence of contrary legislative intent, that the amendment was intended to change law. (Secretary of State v. Mikusch (1990), 138 Ill. 2d 242, 252, 562 N.E.2d 168; Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 340, 466 N.E.2d 215.) However, when the General Assembly amends a statute and no change is made in parts of it, the repeated portions, either literally or substantially, are regarded as a continuation of the existing law and not as the enactment of a new law upon the subject. Klemme v. Drainage District No. 5 (1942), 380 Ill. 221, 224, 43 N.E.2d 966; People ex. rel. Martin v. Village of Oak Park (1939), 372 Ill. 488, 490, 24 N.E.2d 571; 1A N. Singer, Sutherland on Statutory Construction §22.33 (Sands 4th ed. 1985).

Here, the legislature clearly intended to change the meaning of section 510(a) to comply with the Federal mandate. Prior to the amendment, our cases interpreted section 510(a) to permit retroactive modification to the date of the filing of the modification petition, but no earlier. (In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 988, 512 N.E.2d 1354; In re Marriage of Jobe (1987), 151 Ill. App. 3d 998, 999, 503 N.E.2d 1146 (and cases cited therein); In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 976-79, 479 N.E.2d 1152; In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 74, 441 N.E.2d 1221; In re Marriage of Van Winkle (1982), 107 Ill. App. 3d 73, 437 N.E.2d 358; Harner v. Harner (1982), 105 Ill. App. 3d 430, 436, 434 N.E.2d 465; Kowalski v. Kowalski (1981), 96 Ill. App. 3d 830, 833, 422 N.E.2d 83; In re Marriage of Junge (1979), 73 Ill. App. 3d 767, 771, 392 N.E.2d 313; Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Notes, at 698 (Smith-Hurd 1980); but see In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 913-16, 483 N.E.2d 692 (approving retroactive modification of maintenance and support obligation to date of wife’s remarriage).) Whether or not to grant retroactive modification to the date of filing of the modification petition rested within the discretion of the trial court, whose discretion would not be disturbed on review absent an abuse thereof. In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 988-89, 512 N.E.2d 1354.

A very analogous case interpreting section 510(a) prior to its amendment is In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 441 N.E.2d 124, where we addressed in particular the issue of whether one’s spouse’s cohabitation terminates a maintenance obligation as of the date of cohabitation or whether the date of the filing of the modification petition marks the earliest date from which a maintenance obligation may be modified. We stated:

“It is well settled that a party may not unilaterally reduce allowances on the basis of a claimed change in circumstances. Modification is considered a judicial function which is to be administered by the court in its discretion. [Citation.] Since a court has no power to modify past due installments of maintenance [citation], a petition for modification or termination would only apply to payment owed subsequent to the date of the filing of the petition.” Kessler, 110 Ill. App. 3d at 74.

It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments. (State v. Mikusch (1990), 138 Ill. 2d 242, 248-49, 572 N.E.2d 168.) Similarly, the General Assembly is presumed to know how courts have interpreted a particular statute. Williams v. Crickman (1980), 81 Ill. 2d 105, 111, 405 N.E.2d 799.

We conclude that the Illinois General Assembly, in moving the “due notice” phrase from one location to another, changed the law as it had been previously interpreted by this State’s judiciary. The filing date of the modification petition is no longer the earliest point to which a retroactive modification of maintenance or support payments may be ordered. Rather, consistent with the Federal mandate, the earliest point to which retroactive modification of maintenance or support payments may be ordered is the date on which the nonmoving party receives “due notice” from the moving party of the filing of the modification petition. (See In re Marriage of Frazier (1990), 205 Ill. App. 3d 621, 563 N.E.2d 1236; Ill. Ann. Stat., ch. 40, par. 510, Supplement to Historical and Practice Notes, at 232 (Supp. 1992) (amendment limits scope of former retroactivity rule).) Other State legislatures faced with the Federal mandate have similarly worded their retroactivity amendments to prohibit modifications prior to when the nonmoving party receives service or actual notice of the modification petition. See Del. Code. Ann. tit. 13, §513(d)(2) (Supp. 1992) (date that notice of the petition has been given to the respondent); Mich. Comp. Laws Ann. §552.603(3) (Callaghan Supp. 1992) (date notice of petition is given to payer or recipient); Minn. Stat. Ann. §518.64(c) (West Supp. 1992) (date of service of notice of the motion on the responding party); Mo. Ann. Stat. §452.370(6) (Vernon Supp. 1992) (date of personal service); Mont. Code Ann. §40 — 4—208(1) (1991) (actual notice to the parties of the motion for modification); S.C. Code Ann. §20 — 7— 933 (Law. Co-op. Supp. 1991) (service of the action for modification); Wisc. Stat. Ann. §767.32(l)(m) (West Supp. 1992) (date that notice of the action is given to the respondent); see also Grable v. Grable (1991), 307 Ark. 410, 821 S.W.2d 16 (interpreting Arkansas statute to mean date proper notice is given to opposing party).

In reaching our conclusion, we have considered petitioner’s arguments that the date of mailing, not receipt, marks the earliest date to which retroactivity may be ordered. In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 479 N.E.2d 1152, upon which petitioner relies, is distinguishable as it interprets section 510(a) prior to its amendment. Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App. 3d 39, 432 N.E.2d 645, and In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088, also relied upon by petitioner, are factually distinguishable as these cases endorse a mailbox rule for the filing of notices of appeals and post-trial motions. Petitioner’s authority holding that a complaint satisfies the applicable limitations period when filed rather than served is also not analogous to the present case. (See Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 497 N.E.2d 790.) None of these cases were faced with interpreting language like that in section 510(a).

Also, we reject petitioner’s argument that the legislative history of the amendment to section 510(a) requires us to hold that the legislature intended the retroactivity limitation to only apply to child support, not maintenance. While we acknowledge that the legislative history to which petitioner has directed us reveals that the Federal mandate prompted our legislature to act, and while the Federal mandate concerned the retroactivity of child support orders only, the legislature apparently chose not to so limit the language of its amendment. The legislature could have easily tailored its amendment to apply to child support orders only, but it chose otherwise. To adopt petitioner’s argument would require that we read the phrase “maintenance or support” within section 510(a) as just “support.” Canons of statutory construction prevent this court from ignoring words which plainly appear in a statute. In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297, 478 N.E.2d 326.

Finally, petitioner’s citation to a portion of the supplemental historical and practice notes to section 510(a) does not support his claim that the amendment did not change the law. The language in question deals with a court’s discretion to order retroactivity. (See Ill. Ann. Stat., ch. 40, par. 510, Supplement to Historical and Practice Notes, at 233 (Smith-Hurd Supp. 1992).) This body of case law to which the note refers is distinct from that which deals with the earliest date to which a retroactive modification may be ordered. The latter set of cases is involved in this appeal. Following the amendment, as the practice note correctly provides, whether or not to order retroactive modification remains discretionary with the trial court. Neither the amendment nor this opinion modifies a trial court’s discretionary power to order retroactive modification.

Turning to the facts of this case, we conclude that petitioner’s motion to terminate was untimely. The record shows that petitioner filed his motion on March 15, 1991, mailing a copy of it by first-class mail to respondent the same day. Although we are troubled by the regular mail envelope’s post-mark date of March 19, 1991, in the p.m. hours, as this latter date does not square with counsel’s certificate of service, this factual difference is of no consequence in this case. Respondent claims to have received petitioner’s regular mail envelope on March 20, 1991. The final installment was due March 18, 1991. Clearly, respondent did not receive notice of petitioner’s motion until after the final installment became due. Thus, petitioner’s motion was untimely.

Even if we were to apply Supreme Court Rule 12 (see In re Marriage of Betts (1987), 159 Ill. App. 3d 327, 331-32, 511 N.E.2d 732; Wait v. Wait (1987), 158 Ill. App. 3d 271, 274, 510 N.E.2d 600; In re Marriage of Ponsart (1983), 118 Ill. App. 3d 664, 455 N.E.2d 271 (finding that section 511(a) permits service of a modification petition on the nonmoving party by regular mail pursuant to Supreme Court Rule 11), which provides that service by mailing is complete four days after mailing, respondent did not “receive” notice of petitioner’s motion until March 19, 1991. This was one day too late.

For the foregoing reasons, the final order of the circuit court of Cook County dismissing petitioner’s petition to terminate maintenance is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCOS ALCANTAR, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—3404
    Opinion filed December 28, 1992.

      Rita A. Fry, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jason H. Payne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Marcos Alcantar, was convicted of delivery of a controlled substance in excess of 900 grams (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(D)), and sentenced to 49 years’ imprisonment and fined $800,000. On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; and (2) his sentence of 49 years’ imprisonment is excessive. For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. At trial, Illinois State Police Officer Frank Guerra testified on behalf of the State that on August 23, 1990, at 2:30 p.m., he was introduced to Juan Reyes by a confidential police informant. Officer Guerra arranged for Reyes to page him regarding the purchase of four kilograms of cocaine.

On August 27, Officer Guerra received a page from Reyes, and called Reyes at the Alandra Club tavern. Officer Guerra agreed to buy four kilograms of cocaine from Reyes at $25,000 a kilogram, but told Reyes that he couldn’t buy it that day because he needed time to get the money from his brother. Later that day, Officer Guerra called Reyes again and said that he had not been able to get the money, but would call Reyes when he did. At 3:45 p.m., Officer Guerra spoke to Reyes again and told him that he still could not get the money, and that he would call Reyes the following day.

The following day, Officer Guerra called Reyes at 4:30 p.m. and told Reyes that he still did not have the money. At that time, another man spoke to Officer Guerra over the phone. Officer Guerra assured the man that he was serious about doing business, if they would wait for the money.

On August 30, Officer Guerra received $100,000 from the Federal Drug Enforcement Agency (DEA). At approximately 11 a.m., Reyes paged Officer Guerra. Officer Guerra called Reyes, told him that he had the money and asked Reyes if he would be willing to come to the Joliet area to make the deal. At 4:15 p.m., Officer Guerra spoke to Reyes again. Reyes refused to come to Joliet, and Officer Guerra agreed to meet Reyes at the Alandra Club at 6 p.m.

At 5 p.m., Officer Guerra drove to the Alandra Club, located in the vicinity of 18th Street and Damen Avenue, Chicago, followed by approximately 16 plainclothes surveillance officers. When he arrived, Reyes was standing on the northeast corner of the intersection. Officer Guerra pulled over and Reyes got into the officer’s car. Reyes told Officer Guerra that he did not yet have the cocaine. Officer Guerra told Reyes that he would take him to meet his brother, Guerra’s partner and brother Fred Guerra, another undercover officer, so Reyes could see and count the money. Officer Guerra drove to the parking lot of a Fairplay Food Store on the comer of Western Avenue and Cermak Road, arriving at 6:30 p.m. He parked next to Fred’s car. Officer Guerra asked Reyes to have a seat in Fred’s car and Reyes did so. Fred handed Reyes a blue gym bag containing ten bundles of $10,000. Reyes took out one bundle and thumbed through it. Then Reyes counted the bundles, and gave the bag to Fred. At that time, Officer Guerra told Reyes that they were serious about doing the deal, and asked Reyes if he could get his people to come and do the transaction in the Fairplay parking lot. Officer Guerra then took Reyes back to the Alandra Club so Reyes could make a call and told Reyes to page him when he was ready.

About 15 minutes later, Officer Guerra called Reyes at the Alandra Club, and Reyes told him that the “material” (cocaine) was on its way. At 7:30 p.m. Reyes paged Officer Guerra and said they were ready. Officer Guerra told Reyes that he did not want to go to the parking lot behind the Alandra Club where Reyes wanted him to go. Then Officer Guerra spoke to the man that he had spoken to on the telephone earlier. Officer Guerra agreed to meet them in front of the Alandra Club and do the transaction on the street.

At approximately 8 p.m. Officer Guerra returned to the Alandra Club. Defendant and Reyes were standing on the street. Officer Guerra asked them if everything was ready, and defendant told the officer that the “guy with the four kilos” had already left because he was tired of waiting. Defendant stated that he could take the officer to Blue Island and Paulina Avenue, where the guy was waiting. Officer Guerra agreed to go, but would only take one of them in his car. Defendant got into the officer’s car and they drove to the intersection of Blue Island Avenue and Paulina Street. As they crossed Paulina, defendant said, “There is the guy right there. There is his car.” Defendant told the officer to pull over, and Officer Guerra pulled the car over to the south side of Blue Island. Defendant got out of the car and motioned for an individual standing by a Ford Pinto to come over to the officer’s car. Roberto Valencia came over and the three men conversed. Defendant told Valencia to show the officer the cocaine. Valencia then said “come with me,” and Officer Guerra followed him to the Pinto. Valencia opened the passenger side door, reached down behind the passenger seat on the floor, and retrieved a black, iced-denim canvas bag. Valencia unzipped the bag and displayed four kilograms of cocaine. Officer Guerra looked at the cocaine and told them to wait while he went to get the money.

Defendant accompanied the officer back to his car. They drove back to the Fairplay Food Store parking lot where Fred Guerra was waiting with the money. Officer Guerra gave a signal and surveillance agents converged on his car and arrested defendant.

Officer Guerra’s testimony was corroborated by the testimony of his brother, Officer Fred Guerra, regarding the meeting in the Fair-play Foods parking lot and defendant’s arrest, and by DEA Agent Kevin Lane, who observed the events from a surveillance position and recovered the cocaine following defendant’s arrest. Devendrá Trivedi, an Illinois State Police forensic scientist, testified that he examined the four sealed packages of cocaine received from Officer Guerra and determined that the cocaine was 58.9% pure. Each bag separately weighed in excess of 900 grams.

The State rested and the trial court denied defendant’s motion for directed verdict. Defendant called only Officer Guerra as an adverse witness in his case. The jury found defendant guilty of delivery of a controlled substance in excess of 900 grams, and judgment was entered on the verdict. Following a hearing in aggravation and mitigation, the trial judge sentenced defendant to 49 years’ imprisonment and fined him $800,000. This timely appeal followed.

Defendant initially contends that he was not proved guilty beyond a reasonable doubt. Defendant argues that the State failed to prove that he intended to deliver cocaine or that he ever possessed it. Defendant concludes, therefore, that the trial court’s finding of guilty on an accountability theory is not supported by the evidence.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261.) Applying this standard of review, the State responds that the evidence was sufficient to sustain defendant’s conviction.

To sustain a conviction for unlawful delivery of a controlled substance under the theory of accountability, the State must prove that: (1) defendant solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; (2) defendant’s participation took place either before or during the commission of the offense; and (3) defendant had the concurrent, specific intent to facilitate or promote the commission of the offense. People v. Saunders (1990), 206 Ill. App. 3d 1008, 565 N.E.2d 183.

In reliance upon People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631, defendant argues that his presence and knowledge of the transaction are insufficient to prove guilt. In that case, the evidence showed only that the defendant was present and may have known about the transaction, and that codefendant’s reference to another “guy” was too vague to implicate defendant.

However, in the present case, the record establishes that defendant was more than merely present at the crime scene and that specific conduct on his part constituted a design to aid in the offense. The record shows that Officer Guerra went to the Alandra Club to meet Reyes and that he found defendant and Reyes waiting on the street together. Defendant told the officer that the guy with the cocaine (Valencia) left because he was tired of waiting. Defendant then offered to take the officer to retrieve the cocaine from Valencia, directing the officer where to go to meet Valencia. Defendant, Valencia and the officer viewed the cocaine together, then defendant accompanied the officer to get the money for the cocaine. Defendant’s conduct established that he aided Reyes in the commission of the offense during its commission with the concurrent, specific intent to facilitate or promote the delivery of a controlled substance. Accordingly, the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Next, defendant contends that his sentence of 49 years was excessive as compared to Reyes, who received a 15-year sentence after pleading guilty to delivery of a controlled substance in excess of 900 grams. Although an arbitrary and unreasonable disparity between the sentences of codefendants is impermissible, the mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. (People v. Kline (1982), 92 Ill. 2d 490, 509, 442 N.E.2d 154.) Disparity between sentences will not be disturbed where it is warranted by differences in the nature and extent of the codefendants’ participation in the offenses. (People v. Burrett (1991), 216 Ill. App. 3d 185, 194, 576 N.E.2d 293.) However, it is the defendant’s burden to produce a record from which a rational comparison of sentences can be made. (People v. Ralon (1991), 211 Ill. App. 3d 927, 570 N.E.2d 742.) In the present case, defendant failed to provide this court with any records relative to codefendant Reyes. It therefore cannot be determined whether or not the disparity in sentences is justified. See Kline, 92 Ill. 2d at 509.

The trial judge’s decision regarding sentencing is given great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344.) It is well established that sentencing is a matter of judicial discretion and that absent an abuse of that discretion, the sentence as determined by the trial court should stand. Perruquet, 68 Ill. 2d at 153.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) A reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

Defendant’s sentence of 49 years is well within the statutory guidelines for delivery of a controlled substance in excess of 900 grams. (See Ill. Rev. Stat. 1989, ch. 56½, par. 1401 (a)(2)(D) (delivery of a controlled substance in excess of 900 grams is punishable with a term of not less than 15 years and not more than 60).) The record indicates that the court considered that defendant had only six years of education, never attended high school, and that he held various janitorial jobs.

The court also considered that defendant was convicted of possession of a controlled substance in 1982 and 1989 and that he received probation for both convictions. Further, at the time of defendant’s arrest, defendant had two indictments pending for alleged drug offenses committed on September 4, 1989, and September 9, 1989. The court heard testimony in aggravation from Chicago police officers Joseph Gorman and Barry Miller regarding those pending indictments, both for possession of cocaine. The court finally considered that the street value of the cocaine at issue in the present case was $800,000, and stated that “this is among the larger of the drug transactions that come before a court such as this.”

Under the above circumstances, we find no error in defendant’s sentence of 49 years.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH LAMKEY, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—0689
    Opinion filed December 30, 1992.
    Rehearing denied February 2, 1993.

      Michael J. Pelletier and Samuel S. Serritos, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Julie Mark, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant, Kenneth Lamkey, was convicted of aggravated criminal sexual assault and aggravated kidnapping of a 10-year-old girl and was sentenced to serve concurrent terms of 20 years and 15 years, respectively. Defendant appeals, raising as issues whether the State proved defendant guilty of aggravated kidnapping beyond a reasonable doubt; the court erroneously convicted defendant of multiple offenses arising from a single act; and whether the court abused its discretion in the imposition of sentence. (Defendant does not challenge the finding of guilt as to one count of aggravated criminal sexual assault.)

Prior to trial, the court determined that the victim was competent to testify. On September 15, 1989, as the victim walked alone northbound on Cicero Avenue toward her school, she was grabbed at her wrists by a man who jumped out of a doorway. The man wore only a shirt. The assailant pulled her into a hallway and pushed her against the wall. As she knelt against the wall, he held his penis with one hand and tried to stick it into her mouth. The victim kicked, scratched and bit defendant; however, he continued his assault and tried to put his penis into her mouth a second time. The victim pushed the man away. He ran upstairs into his house. She then ran out of the building into a mechanic’s shop. As a result of the attack, the victim sustained injuries to her lip, chin, and neck.

On cross-examination, the victim stated that the hallway which defendant pulled her into was situated between two doors, the outside door leading to the sidewalk onto Cicero Avenue, and a second door, which had been open, led upstairs. She further stated that the hall area was small and only permitted space for two people. The victim estimated that the assault lasted approximately 15 minutes. From where she was positioned inside the hallway, the victim could see cars moving and people walking by on the sidewalk. The following day, she identified defendant in a lineup. The victim also made an in-court identification of defendant as the man who perpetrated the assault against her.

Dick Lorenz testified for the State that at the time the incident occurred, he was traveling southbound on Cicero Avenue when he observed defendant, who was wearing only a shirt, grab the victim. Lorenz slowed down his automobile to try to get a better look. Lorenz established eye contact with defendant. He then drove around the block and stopped directly in front of the hallway where defendant had taken the victim. Lorenz sounded his automobile horn. He again established eye contact with defendant, who released the victim and immediately turned around and ascended the staircase. The victim ran out of the building and entered an adjacent mechanic shop. Lorenz followed her into the building, and the police were called. Lorenz identified defendant from a photographic array on the evening of the assault and from a lineup the following day.

During cross-examination, Lorenz stated that the incident occurred in an area clearly visible to anyone walking or driving down the street. Lorenz estimated that the assault lasted approximately one to two minutes.

Sergeant Kaupert of the Chicago police department was assigned to investigate the assault. He described the building where the incident occurred as a two-story brick building, -with commercial or retail space on the first floor and apartments on the second floor. The initial stairway was a step or two up from the sidewalk through a glass door, and another glass door led to an internal stairwell. Kaupert recovered a small barrette which belonged to the victim during the course of his investigation. He further testified that the victim sustained minor abrasions and cuts to her facial area, nose, chin and lip during the altercation.

Detective Robert Collins testified that following the identification of defendant by the victim and Lorenz, defendant confessed to him that he committed the assault and that he had been thinking about having sex with a child for a period of time. After the assault, he ran upstairs into his apartment, where he waited for about 15 minutes before he left for work.

At the close of the State’s case, the court denied defendant’s motion for a directed verdict. Defendant presented no witnesses on his behalf. The judge first found defendant guilty of aggravated criminal sexual assault. With respect to the aggravated kidnapping charge, the court found that there was no doubt that the victim was taken from one place to another, and that defendant intended to secretly confine her against her will. The judge surmised that the reason that Lorenz was able to see what had occurred was because he had seen defendant abduct the victim off the street; thus, he had a focus on the particular victim. The judge found defendant guilty of aggravated kidnapping. For purposes of sentencing, the judge merged the two counts of aggravated criminal sexual assault and imposed a 20-year sentence upon defendant. The court merged the four counts pertaining to the aggravated kidnapping and sentenced defendant to a concurrent term of 15 years.

On appeal, defendant first asserts that his conviction and sentence for aggravated kidnapping must be reversed because the State failed to prove the essential elements of kidnapping beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that a secret confinement occurred. Alternatively, defendant contends that the asportation of the victim was not established beyond a reasonable doubt because it was incidental to the properly entered conviction for aggravated criminal sexual assault.

The crime of kidnapping occurs when a person knowingly and secretly confines another against his will, or by force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 1.) A kidnapper who takes as his victim a child under the age of 13 years commits aggravated kidnapping. (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(a)(2).) “Secret confinement,” the gist of kidnapping, is demonstrated by either the secrecy of confinement or the place of confinement, and must be proved beyond a reasonable doubt. People v. Sykes (1987), 161 Ill. App. 3d 623, 515 N.E.2d 253, citing People v. Mulcahey (1977), 50 Ill. App. 3d 421, 365 N.E.2d 1013.

In Illinois, reviewing courts have addressed the necessary proof to establish the “secret confinement” element of the charged offense. In general, the victim has clearly been “confined” or enclosed within something, such as a house or a car. See People v. Mulcahey, 50 Ill. App. 3d 421, 365 N.E.2d 1013 (the victim was bound to a chair in her own home); People v. Bishop (1953), 1 Ill. 2d 60, 114 N.E.2d 566 (secret confinement in an automobile while it is in motion upon a highway).

The facts presented in People v. Sykes are similar to those found in the instant case. There, the defendant confronted the 10-year-old victim as she approached the school playground around 8:30 a.m. Defendant grabbed the victim’s arm and pulled her into an alley. They proceeded through two or three alleys until they reached a partially vacant building. After defendant was denied entry into the building, they returned to the street where the victim yelled for help and defendant ran off. Relying upon the definition of “secret” as “concealed; hidden; not made public” (People v. Mulcahey (1978), 72 Ill. 2d 282, 285, 381 N.E.2d 254), the Sykes court held that such “confinement” was not envisioned by the Illinois courts, nor did it comport with the “secret” component of the statute. Accordingly, defendant’s conviction for aggravated kidnapping was reversed since the State failed to prove that the victim was “secretly confined.”

Under the factual circumstances presented here, we find that the State failed to prove the element of secret confinement necessary to sustain a conviction for kidnapping. At the outset, we note that the crime occurred in the vestibule of a building located only a couple of steps away from one of the busiest thoroughfares in Chicago. Sergeant Kaupert testified that the initial stairway into the hall of the building was a step or two up from the sidewalk through a glass door. Once inside the hallway, the victim testified that she saw cars driving and people walking by on the sidewalk. It is also significant that defendant made no attempt to move the victim into a more concealed location within the building, such as into his apartment. Rather, defendant remained within public view in the vestibule in an area clearly visible to anyone walking or driving down the street. When Lorenz saw defendant sexually assaulting the victim from his position inside the car, he sounded his automobile horn in an attempt to interrupt defendant’s actions.

Moreover, we also find that the asportation of the victim was not established beyond a reasonable doubt. Four factors to be considered in determining when an act of detention or asportation rises to the level of kidnapping as a separate offense are: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense. People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091, citing People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117.

According to Lorenz, the asportation here lasted only for two minutes. Too, the fact that defendant, clad only in a shirt, was able to reach out and grab the victim lends support to defendant’s contention that she was not detained for any substantial period of time. We also note that the asportation and detention occurred during the commission of the aggravated criminal sexual assault and that such detention is, of course, inherent to that offense. Finally, we do not find that the asportation posed a more significant danger to the victim than that already posed by the sexual assault. Collins testified that defendant told him that he committed the assault and that he grabbed the victim and pulled her into the hallway. It appears, therefore, that the asportation or detention which occurred here was merely incidental to the separate offense of aggravated criminal sexual assault.

In view of the foregoing factors, we find that the State failed to prove that defendant intended to secretly confine the defendant or that asportation occurred. Accordingly, defendant’s conviction for aggravated kidnapping must be reversed.

Defendant also argues that the doctrine of lesser included offenses and the rule of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, require the vacatur of one count of aggravated criminal sexual assault. The record reveals that defendant was charged with two counts of aggravated criminal sexual assault. Count I charged that the act of sexual penetration was done while causing bodily harm to the victim (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(2)), and count II charged that the act of sexual penetration was committed with a victim who was under 13 years of age (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)). The trial court found defendant guilty of both counts; however, it held that count II merged with count I for purposes of sentencing.

It is axiomatic that there is no final judgment in a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be entertained. (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507.) However, it does not follow that the conviction must be vacated. Thus, there can be no appeal of defendant’s conviction of a second count of aggravated criminal sexual assault in view of the absence of an imposition of sentence.

Finally, defendant challenges that his 20-year sentence for aggravated criminal sexual assault is excessive, and that it was improper for the court to rely upon the victim’s age as an aggravating factor since her age was an element of the offense. We find defendant’s contention without merit, since the 20-year sentence was entered on count I, which alleged the offense of aggravated criminal sexual assault based upon bodily harm to the victim (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(2)). Therefore, the victim’s age was not an element of the offense. It is clear from the trial court’s comments at the sentencing hearing that it did consider the victim’s age as an aggravating factor. The court’s comments included the words “young,” “very tender age,” “little girl” and “young children.” However, it is not improper for the sentencing court to consider the victim’s age in considering the nature of the offense and the circumstances present in the case. (People v. Wyatt (1989), 186 Ill. App. 3d 772, 542 N.E.2d 872.) In addition, age was not the only factor relied upon by the court, because the judge also referred to the serious harm caused to the victim and to the fact that the sentence was necessary to deter others from committing the same crime, both of which are proper aggravating factors. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5— 3.2(a)(1), (a)(7).) Consequently, we find that the court’s consideration of the victim’s age did not constitute an abuse of discretion warranting a reduction or vacatur of defendant’s sentence.

Relatedly, defendant argues that the 20-year term of imprisonment was excessive. He refers to the following mitigating factors to support his claim: his age of 21 years at the time of sentencing; a criminal record limited to one prior misdemeanor; his employment at the time of the incident and the possibility of future employment; a poor home life; emotional instability reflected by three suicide attempts; substance abuse and his tendency toward pedophilia; his penitent spirit when he addressed the court before sentencing; and the fact that defendant’s alcohol abuse allegedly diminished his capacity to resist his pedophiliac urges. Defendant also suggests that the court was influenced by the fact that he had attempted a similar crime two days prior to this incident, but there is no support in the record for this contention.

After reviewing the record, we find that the court did not abuse its discretion when it sentenced defendant to the 20-year term, for it was well within the statutory range for this offense. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(c), 1005 — 8—1(a)(3).) The court’s comments indicated that the sentence imposed was based upon the seriousness of the crimes and the need to protect the public and to deter others from committing similar offenses, all of which are proper factors upon which to base a sentence. A reviewing court cannot substitute its judgment for that of the trial court merely because it may have balanced the appropriate factors differently from the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The record indicates that the court heard and considered proper aggravating and mitigating factors. We will not disturb defendant’s sentence upon review.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY V. FOWLER, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—2424
    Opinion filed December 30, 1992.

      Anthony Pinelli, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Joelle Marasco, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Perry V. Fowler, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)), of Jessica K., age seven, and was sentenced to a term of 10 years. Defendant raises the following issues on appeal: (1) whether the State failed to prove him guilty beyond a reasonable doubt; (2) the testimony of the victim’s mother and two other witnesses should not have been admissible; (3) the trial court’s actions during jury deliberations denied defendant a fair trial; (4) improper prosecutorial comments during closing arguments; (5) ineffective assistance of counsel; and (6) that the sentence was excessive.

The facts are as follows. In spring 1989, defendant, age 32, and his former wife lived in an apartment complex located in Palos Hills, Illinois. The victim, together with her mother, father, and brothers, lived in the same apartment complex as defendant and his wife. Defendant and his wife were friends of the victim’s parents, and for a period of time, defendant and the victim’s father worked at the same company.

During the summer of 1989, the victim’s parents separated. The mother relocated in Michigan with the victim and her brothers. On November 30, 1989, the mother had a conversation with her boyfriend about purchasing airline tickets for the children to visit their father during Christmas vacation. The victim and her brother, Brandon (age 11), approached their mother. Brandon told his sister to “tell Mom or I’m going to.” The victim told her mother that she did not want to visit her father because defendant was going to be there. She further related that defendant touched her “in private places” and made her do things that she never wanted to happen again.

Prior to trial, the court conducted a hearing outside the presence of the jury pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10), and found the victim, age nine at that time, to be a competent witness. The judge also heard the testimony of the victim’s mother, Detective Henke of the Michigan State Police Department, and Mary Martone of LaRabida Hospital. The judge determined that the statements of the victim, in conjunction with the corroborating witnesses, were sufficiently reliable to permit the outcry testimony of these witnesses in accordance with section 115 — 10.

The victim testified at trial that she lived in Michigan with her mother, aunt, brothers and cousins. She previously lived in Palos Hills. When she was approximately six or seven years old, she slept overnight at the apartment of defendant and his former wife, Diane Fowler, approximately five or six times. Defendant and his wife took her to the carnival, and afterwards she slept overnight on the couch in her nightgown and underwear. Defendant went to sleep in a back bedroom.

Defendant woke the victim up by feeling her vagina, which she referred to as her “private parts,” and he also inserted his finger into her vagina. The victim’s underwear was pulled down around her knees. Defendant asked the victim whether it felt good when he stroked her vaginal area, to which she replied “no.” When defendant finished, he told the victim to remember that it was “our secret.”

The victim stayed overnight at defendant’s apartment on six or seven other occasions when he touched her in a similar manner. During one such incident defendant “licked” her genital area. The victim also testified that defendant placed her hand on his penis.

Defendant refrained from touching the victim when other children were overnight guests. However, on two occasions when Brandon, age nine at that time, also stayed overnight, defendant approached her during the night and felt her vaginal area with his hand and inserted his finger into her vagina. Brandon remained asleep during the incident. Defendant then returned to his own bed to sleep with his wife.

On cross-examination, the victim stated that defendant’s wife was asleep in the bedroom when the sexual incidents occurred. The victim did not wake her brother up at the time because she was afraid that he would make fun of her; however, she did tell Brandon about this incident at a later date. The victim also told her best friend, Nichole, that defendant touched her in her “privates” and that it hurt, but Nichole laughed at her and told her that she was lying. The victim returned to defendant’s apartment after the first time he touched her because he said that he would take her to the carnival. Thereafter she returned to defendant’s apartment because he promised to take her out for pizza. The victim last saw defendant in June.

The victim’s mother testified that she and her husband met the defendant and his wife through mutual friends. Defendant had volunteered to take her daughter to carnivals, parks, the pool, and she had also spent the night at his apartment on an average of once or twice per month. The victim’s mother continued the friendship with defendant and his wife after moving to Michigan in July 1989. Upon learning of her daughter’s allegation of sexual misconduct performed by defendant, she contacted the Michigan State Police Department and set up a meeting for the victim to speak to Detective Henke on December 4, 1989. On December 15, 1989, the victim was examined at LaRabida Hospital by Mary Martone, assistant director of behavior science, and Dr. Dantos, a pediatrician.

On cross-examination, the victim’s mother stated that her daughter saw defendant in October 1989 at her husband’s apartment in Illinois. The victim “wanted nothing to do with [the defendant].” The mother of the victim’s friend Nichole had told her to “watch [defendant] because he was a pervert” in the spring of 1989. However, she found nothing in her daughter’s actions to support the insinuations. She continued to allow the 'victim to go over to defendant’s apartment, provided that defendant’s wife was present.

Officer Henke testified that he had worked as a trooper for the past 20 years, and that for the past IIV2 years, he had dealt with physical and emotional child abuse. The State questioned Henke about his educational background and the training schools he attended in the field of child sexual abuse and investigation. In addition, Henke taught sexual abuse training courses at various police academies and also received several commendations for his investigatory skills.

On December 4, 1989, Henke conducted an interview of the victim. After preliminary conversation, the victim told Henke that she had come to the post that day because defendant had touched her in “private places.” The victim told Henke that the incidents had occurred at defendant’s apartment when she was six years old. The victim stated that the first incident occurred when she awoke to find defendant lying behind her on the couch. When she awoke she found that her underpants were around her knees, that her legs were slightly apart, and defendant had reached over on top of her and was touching her vaginal area. After a period of time, defendant also placed his finger inside her vagina. The victim felt pain when defendant inserted his finger into her vagina. Defendant made a circular motion with his finger and moved it up and down while his finger was inside of her. The victim asked if she could get up from the couch after a period of time. Prior to the time that defendant left the living room, he told her that the incident was “their secret” and not to tell anyone. A similar incident occurred when the victim spent the night approximately two weeks later. In total, defendant touched her private area approximately five or six times.

The victim told Henke that on the last time she spent the night, she stayed up later than defendant watching television. She turned off the television and fell asleep on the couch. When she awoke, she found the defendant lying behind her and that he was naked. Defendant again reached over her and touched her vaginal area, and eventually placed his finger inside of her vagina. After a period of time, defendant rolled the victim over onto her back. He then took her hand and placed it on his penis while he was feeling between her legs. The victim removed her hand, but defendant took her hand and placed it back on his penis a second time. Defendant then licked her vagina. Prior to leaving the room, defendant reminded the victim that it was their secret, and not to tell anybody. During this last incident, the victim’s brother was asleep on a small couch in the living room.

When the victim saw defendant on subsequent occasions, he would lean down and whisper into her ear to remember their secret. The victim spoke of the incident with her friend, Nichole, in an attempt to warn her that if she stayed overnight at defendant’s apartment, the same thing could happen to her. The victim also related the incident to her brother.

Mary Martone, assistant director of behavior sciences and social worker for LaRabida Children’s Hospital, also testified for the State. Similar to Henke, Martone initially testified that she had extensive training and experience in the area of child sexual abuse. Martone testified that she spoke with the victim in a child interview room on December 15, 1989. After a number of preliminary questions, including questions designed to ascertain whether the victim understood the difference between the truth and a lie, the victim told Martone that she was at LaRabida because defendant had touched her in “private areas.” The victim repeated her previous account that the purported incidents occurred in spring 1989 at defendant’s apartment when she stayed overnight. In response to the State’s inquiry as to why the victim waited so long to tell her about the incidents, Martone testified that the victim did not tell her mother about the incident immediately after it occurred because she was afraid she would get into trouble and receive a spanking by her mother. Martone indicated that such fear is typical of child sexual abuse victims, particularly of girls who are the same age as the victim, who commonly feel that whatever is happening is their fault.

Following the direct examination of the victim’s mother, Henke and Martone, the trial judge instructed the jury that it was within the jury’s province to determine whether the statements were in fact made by the victim, and the weight to be accorded to them. In making this determination, the jury was instructed to consider the age and maturity of the victim, the nature of the statements, the circumstances under which the statements were made, and any other relevant factors.

Detective Sergeant William Ward of the Palos police department effectuated the arrest of defendant and advised him of his Miranda rights. Defendant stated that the victim had stayed overnight at his apartment on numerous occasions and that he slept immediately behind the victim on the couch. Defendant told the officers that he volunteered to watch his friend’s children because he loved children.

Dr. John Lantos, a pediatrician at LaRabida Children’s Hospital and an expert in the field of sexual abuse, testified that he conducted a physical examination of the victim on December 15, 1989. Dr. Lantos found that the victim’s external genitals were normal. The victim’s hymenal opening was enlarged from four millimeters to eight millimeters, which he considered unusual for a six-year-old girl. Additionally, the victim had some scarring and the edge of her hymen was thickened on the right side. Dr. Laníos opined that his findings were consistent with digital penetration.

On cross-examination, Dr. Laníos stated that some girls are born with an enlarged hymenal opening, and repeated vaginal inspections and hymenal penetration may also cause an enlarged hymenal opening. Dr. Laníos could not determine with “100% certainty” which factor caused hymenal enlargement in the victim’s case. He further stated that it was not possible to determine the exact time an injury occurs unless an examination of the victim is conducted shortly thereafter.

On redirect examination, Dr. Laníos testified that he was unaware that a hymenal injury such as that present in the victim could be caused by self-penetration. Based upon his examination, Dr. Laníos believed that the injury was caused by digital penetration.

Rory Arenz testified on behalf of defendant that he visited defendant at his apartment complex on the weekend of July 4, 1989. He observed that the relationship between defendant and the victim was friendly and did not appear any different from interactions on previous occasions. Arenz was also present in October 1989 when the victim’s family visited defendant at his apartment. He stated that the victim was drawing pictures for defendant so he would have something to remember them by when they left for Michigan. When the victim left the apartment, she kissed defendant good-bye.

Roseanne Fowler, defendant’s current wife, stated that she had two children by defendant. The day after the victim’s October visit, she noticed colored pictures signed by the victim on his refrigerator.

Diane Floener, defendant’s former wife, testified that she and defendant hosted sleep parties at their house for children in the neighborhood. Floener stated .that the victim stayed overnight at their apartment on at least four occasions, but that the overnight visits stopped after she hurt her leg on June 3, 1989. Defendant and Floener slept in their bedroom on a queen-sized waterbed; thus, when someone entered or left the bed it would cause waves. Defendant slept against the wall, which required him to climb over her to get in and out of the bed. Floener did not remember if defendant woke her up by climbing into the water bed; however, as far as she could recall, defendant never got in and out of bed on any of the nights that the victim stayed overnight.

Floener saw the victim and defendant in October 1989, at which time she hugged and kissed the defendant and colored pictures for him. The victim never complained to Floener of mistreatment by defendant.

Defendant testified that he hosted sleep parties for groups of neighborhood children because he and his former wife were fairly certain that they could not have children. According to defendant, the victim spent the night alone at his apartment on two occasions, and twice accompanied by her brother. Defendant took the victim to a carnival with Floener and his sister, and afterwards the victim stayed overnight for the first time. Defendant denied ever touching the victim in any sexual manner.

The jury began deliberations at 2:30 p.m. on May 31, 1991. At 4:20 p.m., the jury submitted the following query in writing: “What was Dr. Lantos’s answer about defense attorney’s question about damage to hymen?” Upon receiving the communication from the jury, the judge spoke with both the defense attorney and the prosecutor who were at the same telephone. Both counsel agreed with the judge’s intention to inform the jury that it had already heard all of the evidence in this case and should therefore continue its deliberations. The court indicated that it would make an official record when the attorneys returned to the courtroom.

At 6:55 p.m., the jury informed the trial judge that it was unable to arrive at a unanimous decision. Again, at 9:40 p.m., the jury sent the judge a note that it was still deadlocked. The judge’s response to both notes was to inform the jury to continue its deliberations.

At 11 p.m. on May 31, 1991, the jury was sequestered. The following morning, the jury found defendant guilty.

We initially consider defendant’s contention that he was denied a fair trial because the testimony of the victim’s mother, Henke and Martone concerning out-of-court statements made by the victim should not have been admissible pursuant to section 115 — 10 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). That section provides in relevant part:

“§115 — 10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.

Defendant first asserts that the trial court should not have permitted the victim’s mother to testify as a witness pursuant to the above section. He maintains that the victim’s statement to her mother, made six months after the occurrence of the alleged incidents, does not qualify as an outcry exception in view of the fact that the victim only admitted that defendant had perpetrated the assault after her brother prompted her to make the statement to her mother. We find, however, that the trial court properly permitted the testimony of the victim’s mother. In People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125, this court discounted such an argument, reasoning that, “ ‘[i]n the absence of a statutory requirement [that] there be no unexplained delay, *** it was the intent of the legislature that any evidence of delay in making the complaint will affect the weight, rather than the admissibility, of the evidence.’ ” (People v. Kelly, 185 Ill. App. 3d at 49, 540 N.E.2d at 1129, quoting People v. Bailey (1988), 177 Ill. App. 3d 679, 683, 532 N.E.2d 587, 590.) Additionally, the court held that reasoning applicable in spite of the fact that the victim’s statements were in part elicited by questioning. Accordingly, we find that the trial court properly admitted the testimony of the victim’s mother in accordance with section 115 — 10(b)(1).

We find, however, that the trial court erred in admitting into evidence portions of Martone’s and Henke’s testimony under the rubric of section 115 — 10(b)(1). While that section creates an exception to the hearsay rule, it does not abrogate the rule or remove its effect other than in the area of the exception. The plain language of the statute limits the exception to complaints of, or details about, sexual acts which are the subject of a prosecution. People v. Anderson (1992), 225 Ill. App. 3d 636, 587 N.E.2d 1050.

In the present case, Martone was allowed to testify that the victim did not tell her mother about the incident for six months after it occurred because she was afraid that she would get into trouble. Mar-tone was also permitted to state that such fear is typical of child sexual abuse victims, particularly of girls who are the same age as the victim, who commonly feel that whatever is happening is their fault. Martone’s testimony concerning a possible rationale for why the victim may have withheld information about defendant’s assaults upon her was improper and far beyond the contemplation of section 115— 10. Martone was called by the State as an outcry witness and her testimony should have been limited to the details of the incident given her by the victim.

Moreover, Henke testified not only about what the victim had told him about the incidents in question. He also testified about physical gestures she made during the interview so that he was able to describe the acts with details not provided by the victim. We find that this portion of Henke’s testimony was improper and prejudicial.

The State responds to defendant’s claims on this issue by stating that defendant’s failure to object during trial results in waiver upon review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, the doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that defendant was denied a fair trial. People v. Cox (1990) , 197 Ill. App. 3d 1028, 557 N.E.2d 288.

We conclude that the cumulative effect of the foregoing improper portions of the testimony of Henke and Martone effectively deprived defendant of a fair trial. We therefore reverse the conviction and remand the cause for a new trial.

In light of our holding, it is necessary to comment on defendant’s assertion that he was not proved guilty of aggravated criminal sexual assault beyond a reasonable doubt. See People v. Randle (1991) , 213 Ill. App. 3d 1082, 572 N.E.2d 1207.

In the present case, the victim slept overnight at defendant’s apartment on several occasions in the company of other children, as well as by herself. Her testimony about the crime was clear and convincing. Upon learning that her mother intended her and her brother to visit their father in Illinois, the victim told her mother that she did not want to visit her father because defendant would be there; that he had touched her in private places and made her do things that she never wanted to do again. Additionally, the victim told both Henke and Martone that defendant had touched her vaginal area. The evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt.

In view of our remand, we need not address the other issues raised by defendant on appeal. However, we note that the comment made by the prosecutor in rebuttal closing argument, “[t]his case isn’t about reasonable doubt,” was highly improper and should not be repeated in the new trial.

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

Reversed and remanded.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE RAKOWSKI

text:
    BENNY WILLIAMS, Plaintiff-Appellant, v. CALMARK MAILING SERVICE, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1 — 92—0298
    Opinion filed December 30, 1992.

      Reynolds & Baker, of Chicago (Gail R Rosinski, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Sara T. Wiggs, Nancy J. Arnold, and David T. Nani, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff, Benny Williams, appeals from an order of the circuit court of Cook County granting the motion of defendant Calmark Mailing Service, Inc., for judgment on the pleadings, which alleged that defendant owed no duty to plaintiff. Plaintiff contends that a duty did exist.

This is a suit for personal injuries sustained by plaintiff on February 21, 1986, when his car collided with a freight train at the crossing near 1400 West 44th Street in Chicago. The plaintiff brought a three-count complaint of which the first two counts were against the railroad and the third count was against defendant. The complaint alleged in count I that the railroad was negligent in not warning motorists of approaching trains, operating trains too fast for conditions and having no gates at the crossing. Count II alleged a violation by the railroad of the Illinois Administrative Code in that it had provided no flashing lights or flag men to warn motorists of approaching trains at the crossing. This appeal does not involve these counts against the railroad.

In count III plaintiff alleged that defendant herein owned and maintained the premises at 1401 West 43rd Street and that the docks and parking for the property extended to 44th Street, directly west of the railroad tracks and grade crossing. The plaintiff predicated his claim against defendant on a theory that defendant owed a duty to operate its facility and premises in a manner to avoid creating a dangerous condition at the railroad crossing, and defendant breached this duty by permitting trailers to be parked in such a way as to obstruct plaintiff’s view of the tracks.

Defendant answered the complaint denying the relevant allegations. Defendant also filed a motion for judgment on the pleadings alleging that it had no duty to plaintiff as set forth in a recent Illinois Supreme Court case, Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365. The trial court granted defendant’s motion for judgment on the pleadings and denied plaintiff’s motion to reconsider. Plaintiff appeals.

In Ziemba the Illinois Supreme Court decided the issue of whether a landowner has a duty to maintain his property in such a manner-that his driveway is visible to travelers on an adjacent roadway. The plaintiff claimed that defendant owed plaintiff a duty to exercise “reasonable care in the conduct of activities on his property, so as to not cause damage or injury to persons on the adjacent roadway.” The supreme court in Ziemba reversed the appellate court’s decision that a duty existed based on the fact of the relationship of the parties. The plaintiff in Ziemba had never entered defendant’s land, nor did he come into contact with any condition on defendant’s land. The court found no duty of defendant to guard against an accident occurring on a public highway adjacent to his land.

In making its determination, the court in Ziemba found that overgrown foliage on defendant’s property was not a condition that alone was dangerous and became so only when a vehicle negligently exited the hidden driveway. The conditions on defendant’s land only posed a danger to plaintiff by operation of the driver’s intervening negligent act. The court in Ziemba cited to cases that hold that landowners do not owe a duty to maintain their property in such a way that it does not obstruct the view of travelers on an adjacent highway. See e.g., Abernathy v. Dynell Springs Co. (1989), 179 Ill. App. 3d 138, 534 N.E.2d 486; Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 520 N.E.2d 1044; Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 512 N.E.2d 993, aff’d on other grounds (1989), 129 Ill. 2d 351.

We find Ziemba to be controlling. In this case the tractor trailers on defendant’s property were not dangerous until the railroad allegedly acted negligently in not having flashing red lights and in operating its train too fast for conditions. It was not alleged that the train personnel could not see the crossing. Plaintiff did not come into contact with defendant’s land. The facts of this case are nearly identical to Ziemba.

The cases cited by plaintiff as controlling in this case are readily distinguishable. Thiessen v. Wabash R.R. Co. (1963), 41 Ill. App. 2d 238, 190 N.E.2d 498, is an abstract decision where an unlighted tractor trailer truck was parked on a public street in violation of a statute. In the instant case, the trailers that allegedly obstructed plaintiff’s view were legally parked on the defendant’s private property and, as discussed below, there is no applicable statute. In National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, also cited by plaintiff, the court was only concerned with complaints against railroad companies and no private adjacent landowner was involved. Likewise, Winsor v. Baltimore & Ohio R.R. Co. (1980), 92 Ill. App. 3d 437, 415 N.E.2d 1141, does not address any duty owed by a private adjacent landowner and addressed only the issue of a railroad’s duties in regards to obstructions of the view of the tracks. None of the cases cited by plaintiff is support for its argument here.

Plaintiff asserts, however, that a duty should be created against adjacent landowners to a railroad. As part of this argument, plaintiff points to section 11 — 1303(a)(3)(a) of the Illinois Vehicle Code, which states:

“[N]o person shall:
3. Park a vehicle, whether occupied or not, except temporarily for the purpose of and while actually engaged in loading and unloading property or passengers:
a. Within 50 feet of the nearest rail of a railroad crossing.” (Ill. Rev. Stat. 1991, ch. 95½, par. 11 — 1303(a)(3)(a).)

Plaintiff maintains that this statute recognizes the inherent danger in obstructing from view the area near a railroad crossing and as such indicates the propriety of finding the defendant had a duty to not obscure the crossing. However, section 11 — 1303(a)(3)(a) does not apply to an individual’s use of his own adjacent private property, and we decline to give the statute the broad interpretation requested by plaintiff. The common law does not impose a duty on a third party merely because the third party’s land is near a railroad where the accident occurs (Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 520 N.E.2d 1044), and plaintiff cites no case which so holds.

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

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN RAMEY et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1 — 88—0608, 1—88—0609, 1 — 88—0862 cons.
    Opinion filed December 30, 1992.

      Julie L. Friedman, of Chicago, for appellant John Ramey.
    Mary Ellen Dienes, of Northfield, for appellant Robert Jernigan.
    Rita A. Fry, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant Lorenzo White.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Randall Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants, John Ramey, Robert Jernigan and Lorenzo White, were convicted in separate jury trials of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12— 11), residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3) and robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1) after police discovered the bound, gagged and beaten body of 65-year-old Sylvia Wilson in her apartment located at Jackson and Homan Streets in Chicago, Illinois. Ramey was sentenced to natural life imprisonment to run consecutively with an extended 30-year term of imprisonment. Jernigan was sentenced to natural life imprisonment to run consecutively with an extended 60-year term of imprisonment. White was sentenced to 20 years’ imprisonment to run concurrently with a six-year term of imprisonment. On appeal, Ramey contends that (1) the trial court erred when it did not suppress his confession; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the sentence is excessive and should be vacated or reduced. Jernigan contends that (1) the trial court erred in failing to quash his unlawful arrest and to suppress evidence obtained therefrom; (2) the trial court erred when it admitted prejudicial hearsay testimony and the victim’s coin purse into evidence; (3) the State failed to prove him guilty beyond a reasonable doubt; and (4) the sentence is excessive and should be vacated or reduced. White contends that the State failed to prove him guilty beyond a reasonable doubt. We affirm.

Ramey first contends that the trial court erred when it did not suppress his confession. Inculpatory and other statements given to police will be suppressed if they are not given freely, voluntarily and without compulsion. (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 11.) When deciding whether inculpatory statements were given voluntarily, a reviewing court must evaluate a defendant’s age, experience, education, background and intelligence, as well as the totality of the circumstances involving the interrogation. (People v. Costello (1992), 224 Ill. App. 3d 500, 505-06, 586 N.E.2d 742, 746.) Other than Ramey’s self-serving testimony, there is nothing in the record here to support his contention that he was denied food, water, washroom privileges or requested an attorney prior to making inculpatory statements. Furthermore, Ramey’s assertion that he needed immediate medical attention because “both of my bones was [sic] sticking out of both of my knees” due to his 35-foot jump from his second-floor apartment attempting to evade investigating officers is not supported by the medical testimony. Finally, there is nothing about the age, education, background or intelligence of this particular defendant or the duration and extent of the interrogation here to indicate that Ramey did not understand his Miranda warnings or that his inculpatory statements to police were not given freely, voluntarily and without compulsion. We, therefore, conclude that the trial court’s refusal to suppress Ramey’s confession is not contrary to the manifest weight of the evidence.

Ramey next argues that the State failed to prove him guilty of the crimes charged beyond a reasonable doubt. A person is responsible for the criminal conduct of another where either before or during the commission of a crime, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 5 — 1, 5 — 2.) Once a person becomes accountable for the conduct of another, he remains so unless he terminates his effort to promote or facilitate the criminal activity and wholly deprives his prior efforts of effectiveness, gives timely warning to the proper law enforcement authorities or otherwise makes proper effort to prevent the commission of the crime. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) Ramey contends that the evidence adduced at trial demonstrates that he did not cause bodily harm to Wilson, that he tried to stop Jernigan from hurting Wilson and that he ran from the apartment when Jernigan refused to stop beating Wilson. The record, however, does not support Ramey’s contention.

The record in the present case is devoid of evidence that Ramey made any effort to terminate his promotion or involvement in the crimes for which he was convicted. To the contrary, the record here plainly demonstrates that Ramey and Jernigan forcefully entered Wilson’s apartment, bound, gagged and beat Wilson as they ransacked her apartment, left the apartment together carrying two bags of stolen items and split up the proceeds of the robbery later that evening. Based on Ramey’s inculpatory statements and the other overwhelming evidence of his guilt, we find that the State proved Ramey guilty of robbery, residential burglary and murder beyond a reasonable doubt.

Ramey finally contends that his sentence of natural life imprisonment to run consecutively with an extended 30-year term of imprisonment is excessive and should be vacated or reduced. A trial court may sentence a defendant convicted of murder to natural life imprisonment if it determines that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a).) In addition, a trial court may sentence an offender to an extended term of imprisonment when, inter alia, the offense was committed against a person 60 years of age or older. Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-2(a), 1005-5-3.2(a)(8).

In its ruling, the trial court stated that the murder of 65-year-old Sylvia Wilson was accompanied by “brutal and heinous and savage behavior.” Ramey does not dispute the brutal and heinous nature of the crime, but rather argues that there is no evidence tying him to Wilson’s murder. We find that Ramey’s conduct in the present case rises to the level of exceptionally brutal and heinous behavior, irrespective of which offender delivered the fatal blows to the victim. Accordingly, the trial court did not abuse its discretion when it sentenced Ramey to natural life imprisonment to run consecutively with an extended 30-year term of imprisonment.

Jernigan contends that the trial court erred in failing to quash his unlawful arrest and to suppress evidence obtained therefrom because his warrantless arrest was made without probable cause. The fourth amendment of the United States Constitution requires an arrest to be supported by probable cause. (U.S. Const., amend. IV.) Probable cause for a warrantless arrest exists when the totality of the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant an individual of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. (People v. Chavez (1992), 228 Ill. App. 3d 54, 69, 592 N.E.2d 69, 80.) Defendant argues that the arresting officers’ use of an informant’s unsubstantiated double hearsay is insufficient to support a finding of probable cause. We disagree.

It is well established that a finding of probable cause for a warrant-less arrest can be based upon hearsay received from an informant. (People v. Rogers (1992), 231 Ill. App. 3d 774, 778-79, 596 N.E.2d 1291, 1293-94.) Moreover, where the informant is a private citizen, it is unnecessary for the information obtained from the informant to be independently corroborated or the informant’s prior reliability to be established so long as there is a fair probability that a crime is being or has been committed. (People v. Earley (1991), 212 Ill. App. 3d 457, 465, 570 N.E.2d 1235, 1240-41.) The arresting officers here received information from Mary M., a citizen informant, that she had been told by Alfonsa W, Jernigan’s girl friend, that Jernigan, Ramey and White entered an apartment building at Jackson and Homan Streets and bound, gagged and beat the resident in the course of a robbery. Mary M.’s information was corroborated by White’s statements to investigating officers that Ramey and Jernigan entered an apartment at Jackson and Homan Streets to commit a robbery while he remained in the car. Based on the evidence presented at the hearing on Jemigan’s motion to quash arrest and suppress evidence, we find that the facts and circumstances within the arresting officers’ knowledge were sufficient to support a finding of probable cause.

Jernigan next contends that the trial court erred when it admitted prejudicial hearsay testimony and the victim’s coin purse into evidence. We disagree. At trial, Detective Comelison testified that he asked Alfonsa W. whether Jernigan had given her a black coin purse or key chain purse. Comelison stated that Alfonsa W. responded affirmatively and gave him a small black purse, which was admitted into evidence after it was identified as one of the items taken from Wilson’s apartment in the robbery. Defense counsel failed to object. After reviewing the record, we find that the purse was properly admitted into evidence because it is highly relevant to whether a robbery or burglary occurred. We also find that any error in admitting hearsay testimony involving the conversation between Comelison and Alfonsa W. is harmless beyond a reasonable doubt.

Jernigan next contends that the State failed to prove him guilty beyond a reasonable doubt. We disagree. In his signed confession, Jemigan indicated that he and Ramey forcefully entered an elderly woman’s apartment located at Jackson and Homan Streets, bound and gagged the resident, beat her when she resisted, ransacked the apartment looking for valuable items to steal and carried jewelry and purses from the apartment. Jemigan’s confession was substantially corroborated by Mary M. and Ethyl Ramey, who each testified about their knowledge of Jemigan’s involvement in the offenses charged. Based on the overwhelming evidence of Jemigan’s guilt in the present case, we conclude that the State proved him guilty of murder, home invasion, robbery and residential burglary beyond a reasonable doubt.

Jernigan finally contends the sentence is excessive and should be vacated or reduced. It is plain from the record that the trial court considered the nature and circumstances of the crimes here as well as the history and character of Jernigan when it entered Jemigan’s sentence. After reviewing the record in the present case, we cannot say that the trial court abused its discretion when it ruled that Wilson’s murder was accompanied by exceptionally brutal or heinous behavior and sentenced Jernigan to natural life imprisonment to run consecutively with an extended 60-year term of imprisonment.

White contends that the State failed to prove him guilty of the crimes charged beyond a reasonable doubt. We disagree.

According to White’s confession, he drove Ramey and Jernigan to the building located at Jackson and Homan Streets with full knowledge that Ramey and Jernigan intended to burglarize the apartment on the second floor. White waited in the car while Ramey and Jemigan entered the building. About 30 to 40 minutes later, Ramey and Jemigan returned carrying two bags. The three offenders then drove to White’s apartment to split the proceeds of the burglary. The record indicates that White failed to make any effort to abandon or withdraw from his participation in the crime. Furthermore, White conceded that he received one-third of the proceeds of the burglary for his participation in the crime. Based on the evidence presented at trial, we hold that the record contains sufficient evidence to demonstrate that White had the culpable intent or design to hold him accountable for the actions of Ramey and Jernigan.

White further argues that the evidence is insufficient to support his conviction for home invasion where the record contains no evidence that Ramey and Jemigan entered Wilson’s apartment knowing or having reason to know that someone was present. A person commits home invasion where he knowingly enters the dwelling place of another without authority, knowing or having reason to know that one or more persons are present, and while armed with a dangerous weapon, uses or threatens force against any person within the dwelling or intentionally causes injury to any person within the dwelling. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11.) In a prosecution for home invasion, knowledge may be proven by circumstantial evidence so long as the State presents sufficient evidence from which an inference of knowledge can be made. (People v. Austin (1984), 123 Ill. App. 3d 788, 793-94, 463 N.E.2d 444, 449.) After reviewing the record, we find that the State presented sufficient circumstantial evidence from which a rational trier of fact could conclude that Ramey and Jemigan knew or had reason to know that someone would be present when they unlawfully entered Wilson’s apartment. (See People v. Rodriguez (1991), 227 Ill. App. 3d 397, 407-08, 592 N.E.2d 18, 25; People v. Smith (1988), 172 Ill. App. 3d 94, 110, 526 N.E.2d 849, 859; People v. Cohen (1986), 142 Ill. App. 3d 900, 904, 492 N.E.2d 569, 572-73; People v. Austin (1984), 123 Ill. App. 3d 788, 793-94, 463 N.E.2d 444, 449-50.) We, therefore, conclude that the State proved White guilty of murder, home invasion, robbery and residential burglary beyond a reasonable doubt.

Accordingly, the judgments of the circuit court are affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.