author: JUSTICE HARTMAN

text:
    A. FINKL AND SONS COMPANY et al., Petitioners, v. ILLINOIS COMMERCE COMMISSION et al., Respondents.
    First District (2nd Division)
    Nos. 1 — 91—3854, 1 — 91—3869, 1 — 91—3871, 1 — 91—3899 cons.
    Opinion filed June 8, 1993.
    Rehearing denied September 10, 1993.

      Lueders, Robertson & Konzen, of Granite City (Edward Fitzhenry, Eric Robertson, and Randall Robertson, of counsel), for petitioner A. Finkl & Sons Company.
    Susan L. Satter, of Chicago, for petitioner Citizens Utility Board.
    Cynthia L. Cacciatore, Special Assistant Attorney General, of Chicago, for respondent Illinois Commerce Commission.
    Sidley & Austin, of Chicago (Sarah J. Read, Gerard D. Kelly, and Anastasia M. Polek, of counsel), for respondent Commonwealth Edison Company.
    Fred Zalcman, of Springfield, for respondent Illinois Department of Energy and Natural Resources.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Alan Neff, Assistant Corporation Counsel, of counsel), for respondent City of Chicago.
   JUSTICE HARTMAN

delivered the opinion of the court:

This review proceeds under sections 10 — 113 and 10 — 201 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, pars. 10 — 113, 10 — 201 (now 220 ILCS 5/10 — 113, 10 — 201 (West 1992)) (section 10— 201) (Act)) and Supreme Court Rule 335 (134 Ill. 2d R. 335), from a final order of the Illinois Commerce Commission (Commission), which allowed Commonwealth Edison (Edison) to recover costs associated with demand-side management (DSM) programs through a rider, designated “Rider 22.” Illinois Industrial Energy Consumers (IIEC) and Citizens Utility Board (CUB) appeal.

The issues presented for review are whether (1) IIEC and CUB have standing to pursue this review; (2) the Commission violated the prohibition against single-issue ratemaking; (3) the Commission acted beyond its jurisdiction in approving the rider as an incentive to Edison to comply with the law; (4) the Commission violated the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 — 101 et seq. (now 220 ILCS 5/1 — 101 et seq. as amended (West 1992)) (Act)) by allowing Edison to charge consumers for “lost revenues”; (5) the Commission violated the prohibition against retroactive rule making; (6) the Commission’s approval of Rider 22 is a violation of its own rules and the laws pertaining to use of a test year; and (7) the Commission erred in not requiring a cap on cost recovery in the rider.

A brief consideration of policy and procedural history is necessary to an understanding of the issues presented in this review. Section 8 — 402 of the Act (Ill. Rev. Stat. 1989, ch. 111 2/3, par. 8 — 402 (section 8 — 402)) requires the Commission to adopt long-range energy plans for both the State as a whole and for each energy service utility in order to effectuate “least cost” policies of the State. Every three years, the Department of Energy and Natural Resources (DENR) is required to prepare and submit proposed utility energy plans for Illinois. The utilities also prepare and submit individual company plans for Commission approval. Evidentiary hearings are to be held, and the Commission must either adopt or modify the plans submitted. The Commission must select the plan, and components thereof, which will result in the greatest likelihood of providing adequate, efficient, reliable and environmentally safe energy services at the least cost to consumers and which will utilize, to the fullest extent practicable, all economical sources of conservation, renewable resources, cogeneration and improvements in energy efficiency as the primary sources of new energy supply. To the fullest extent possible, the plans adopted for each utility are to be consistent with the statewide plan. Ill. Rev. Stat. 1989, ch. 1112/3, par. 8 — 402.

Where the Commission determines, as a result of the hearings, that a utility’s existing or planned programs or policies inhibit or do not fully ensure the economical utilization of conservation, renewable resources, cogeneration or improvements in energy efficiency, it “shall” revise the plan as necessary and order the utility to implement the program or policies in cooperation with the DENR. Implementation by a utility of such additional programs or policies as ordered by the Commission entitles the utility to recover reasonable costs through the ratemaking procedures outlined in the Act. Ill. Rev. Stat. 1989, ch. 111/s, par. 8 — 402.

On October 6, 1989, the Commission adopted the first statewide plan, setting forth in detail how utilities are to develop the capability to use the demand-side resources that are favored, consistent with section 8 — 402. The Commission directed the utilities to “begin to build the capability to turn potential demand resources into available resources consistent with section 8 — 402 ***. This process should include technical and market research and development, pilot programs, and marketing tests designed to gather information, test incentive designs, and assess and build delivery mechanisms.”

The Commission also recognized that utilities should recover costs they incur with demand-side program analyses and were directed to develop proposals for the recovery of “prudently-incurred” costs associated with analysis, design and implementation of demand-side programs. The Commission found it premature to articulate a uniform policy with respect to DSM cost recovery and lost revenues.

The statewide plan also addressed the recovery of a particular cost associated with demand-side programs due to lost revenue, which are revenues that the utility would earn but for DSM capability building activities, referred to as a potential barrier to implementing demand-side programs. The utilities were directed to include in their least cost plan a proposal to reduce this barrier.

Witnesses during hearings on Rider 22 explained, in part, that: “The lost earnings due to implementing such a demand[-]side resource prematurely are a real cost of the decision to do so.” Further, “[t]he recovery of Lost Revenues allows utilities to recover revenues lost through the implementation of capability building pilot programs that the Commission has found to be in the public interest.” Also, “demand-side resources provide much lower earnings than supply-side resources, unless profits lost as a result of decreased sales due to demand-side management [‘DSM’] are offset in some manner.”

Edison submitted its first individual company electric energy plan on January 8, 1990, in which it charted its capability to design, implement and evaluate demand-side resources. Edison addressed the issue of how to best recover the costs associated with its DSM and proposed that its cost of building capability in the design, evaluation and implementation of demand-side resources be recovered by the use of a cost recovery mechanism called a rider, which is a form of tariff that modifies an otherwise applicable standard rate under specific circumstances.

The Commission confirmed the use of a rider as an appropriate cost recovery mechanism in an order dated December 12, 1990 (Illinois Commerce Commission, Illinois Commerce Commission No. 90— 0038 (Dec. 12, 1990) (Docket No. 90 — 0038)), asserting that the absence of a cost recovery mechanism for DSM presents substantial barriers to least cost energy planning, which should be reduced or minimized if possible.

Pursuant to the Commission’s order, on January 3 and 8, 1991, Edison met with interested parties to discuss the proposed cost-recovery rider. Prior to these “workshops” Edison circulated a proposed rider for review to all those entities participating in the prior proceeding. Edison received written comments on the proposed rider from the Commission staff, DENR, the City of Chicago, IIEC, the Attorney General and the Office of the Public Counsel (OPC).

Following the workshop, Edison, DENR, the Cook County State’s Attorney’s office, the City of Chicago and Low-Income Residential Consumers entered into a stipulation agreeing that Rider 22 be placed into effect without suspension or hearing. IIEC sought modification and objected to the recovery of costs on a per-kilowatt basis and raised other objections. CUB did not actively participate in this stage of the proceedings.

On January 11, 1991, Edison filed with the Commission proposed Rider 22, its supplemental statement and a copy of the stipulation. The Commission nevertheless suspended the rider and held evidentiary hearings. On October 2, 1991, the Commission approved Rider 22 with minor modifications, finding:

“A rider is the most appropriate method for the recovery of [demand-side] costs because the actual expenses are difficult to predict in advance, especially given the fact that neither the Commission nor Edison has extensive experience in the implementation of [demand-side] analysis and programs, and may fluctuate from year to year and from month to month.”

The Commission asserted that use of a rider would be more accurate than recovering such costs through an adjustment of base rates, noting also that Edison’s schedule of rates currently includes several riders which allocate the costs, or savings, of a wide variety of items.

IIEC and CUB filed petitions for rehearing, which the Commission denied. This petition for review followed.

Our jurisdiction to review Commission orders is set forth in section 10 — 201 of the Act. Section 10 — 201(d) of the Act requires the Commission’s findings and conclusions on questions of fact to be held prima facie true; its orders and decisions prima facie reasonable; and the party appealing to have the burden of proof on all issues. Section 10 — 201(e)(iv) of the Act provides that a reviewing court shall reverse a Commission order, in whole or in part, where the Commission’s findings are not supported by substantial evidence or the order violates State or Federal law. Although deference is to be accorded to the Commission’s interpretation of its own rules and regulations, and its long-standing interpretation of the provisions of the Act, the Commission’s interpretation of questions of law is not binding on a reviewing court. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 204, 555 N.E.2d 693 (BPII).

I

Edison initially asserts that by failing to appeal the Commission’s earlier order in Docket No. 90 — 0038, which (1) established the rider as the best method to use to recover demand-side capability building costs; (2) required a provision for a prudence review; and (3) directed Edison to file such a rider, IIEC and CUB have waived any right to challenge the use of a rider to recover demand-side capability building costs or the provision for a prudence review. Accordingly, Edison urges that the challenges to the use of the rider and to the provision for prudence review be denied.

The Commission’s order in Docket No. 90 — 0038, directing Edison to prepare such a rider, did not identify the same issues raised in this proceeding. Further, decisions of the Commission are not res judicata, as noted in City of Chicago v. Illinois Commerce Comm’n (1985), 133 Ill. App. 3d 435, 440, 478 N.E.2d 1369, quoting from Mississippi River Fuel Corp. v. Illinois Commerce Comm’n (1953), 1 Ill. 2d 509, 513, 116 N.E.2d 394:

“ ‘The concept of public regulation includes of necessity the philosophy that the [Commission shall have power to deal freely with each situation as it comes before it, regardless of how it may have dealt with a similar or the same situation in a previous proceeding.’ ”

Nor does section 10 — 201(f) of the Act support Edison, which provides:

“When no appeal is taken from a[n] *** order or decision of the Commission, as herein provided, parties affected by such *** order or decision, shall be deemed to have waived the right to have the merits of the controversy reviewed by a court and there shall be no trial of the merits of any controversy in which such *** order or decision was made, by any court to which application may be made for the enforcement of the same, or in any other judicial proceedings.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 111%, par. 10 — 201(f).)

Therefore, only when a party who is affected by a decision fails to take an appeal from that decision is such party precluded from having the merits of that controversy reviewed in context of another judicial proceeding. Here, IIEC’s and CUB’s members were not affected by the order entered in Docket No. 90 — 0038 because that order did not set rates. The final order in Docket No. 90 — 0038 approved the theoretical concept of a rider, but not a specific rider with a rate impact.

Edison’s reliance upon City of Galesburg v. Illinois Commerce Comm’n (1977), 47 Ill. App. 3d 499, 362 N.E.2d 78, is misplaced. The absence of res judicata in administrative proceedings makes it inappropriate and contrary to the promotion of judicial and administrative economy to maintain an appeal based only on a theoretical issue which may never “affect” an appellant. To the extent the City of Galesburg decision holds to the contrary, we decline to follow it.

We find no waiver of IIEC’s or CUB’s right to challenge the propriety of Rider 22.

II

IIEC and CUB aver that because the Commission is mandated to set rates for public utility service which are just and reasonable, the Commission erred by approving Rider 22, which rider permits recovery for a single issue in violation of the prohibition against single-issue ratemaking.

In its instructive opinion in Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 200-01, 529 N.E.2d 510 (Citizens Utilities Co.), our supreme court explained:

“In establishing the rates that a public utility is to charge its customers, the Commission bases the determination on the company’s operating costs, rate base, and allowed rate of return. A public utility is entitled to recover in its rates certain operating costs. A public utility is also entitled to earn a return on its rate base, or the amount of its invested capital; the return is the product of the allowed rate of return and rate base. The sum of those amounts — operating costs and return on rate base — is known as the company’s revenue requirement. The components of the ratemaking determination may be expressed in ‘the classic ratemaking formula R (revenue requirement) = C (operating costs) + Ir (invested capital or rate base times rate of return on capital).’ (City of Charlottesville, Virginia v. Federal Energy Regulatory Comm’n (D.C. Cir. 1985), 774 F.2d 1205, 1217, citing T. Morgan, Economic Regulation of Business 219 (1976).) The same formula is used by the Commission in ratemaking determinations for Illinois. The revenue requirement represents the amount the company is permitted to recover from its customers in the rates it charges. Ratemaking is done in the context of a test year, which in this case was 1983.”

In determining the amount of money a utility is authorized to collect from the consumers, the Commission is required to consider all aspects of the utility’s operations during a year selected by the utility as a test year. The test year so selected is intended to be representative of both the utility’s anticipated rate-base expenses and its expected revenues, including overall costs and rate of return in the same year. Here, instead of considering costs and earnings in the aggregate, where potential changes in one or more items of expense or revenue may be offset by increases or decreases in other such items, single-issue ratemaking considers those changes in isolation, ignoring the totality of circumstances. Addressing this issue, the supreme court in Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 244-45, 585 N.E.2d 1032 (BPI II), stated:

“The rule against single-issue ratemaking recognizes that the revenue formula is designed to determine the revenue requirement based on the aggregate costs and demand of the utility. Therefore, it would be improper to consider changes to components of the revenue requirement in isolation. Oftentimes a change in one item of the revenue formula is offset by a corresponding change in another component of the formula. For example, an increase in depreciation expense attributable to a new plant may be offset by a decrease in the cost of labor due to increased productivity, or by increased demand for electricity. (Demand for electricity affects the revenue requirement indirectly. The yearly revenue requirement is divided by the expected demand for electricity to arrive at a per kilowatt hour rate. If actual demand is more than the estimated demand used in the formula, the utility’s revenues increase.) In such a case, the revenue requirement would be overstated if rates were increased based solely on the higher depreciation expense without first considering changes to other elements of the revenue formula. Conversely the revenue requirement would be understated if rates were reduced based on the higher demand data without considering the effects of higher expenses.” (Emphasis in original.)

In the present case, the Commission authorized Edison to charge customers for DSM program costs without considering whether other factors offset the need for additional charges. The order violates the prohibition against single-issue ratemaking. The order thereby isolates one operating expense for full recovery without considering whether changes in other expenses or increased sales and income obviate the need for increased charges to consumers, which may result impermissibly in ratepayers facing additional charges for direct and indirect additional revenues to cover Edison’s expenses and pay a return to its investors.

The Commission contends that single-issue ratemaking usually occurs in a general rate case setting where one item of revenue or expense is altered without taking into account related changes in other revenue and expense items. The Commission found that Rider 22 does not fit this scenario. “The acceptance of a single-issue ratemaking argument would totally hamstring Edison and the Commission. Under such a scenario, the Commission could not approve individual rate tariffs outside a general rate proceeding.” We disagree.

An examination of Rider 22 reveals support for the contrary contention, that expenses incurred in connection with least cost planning essentially are ordinary expenses imposed by statute. Among the anticipated costs listed in Rider 22 are the following:

“Capability building costs are all direct out of pocket costs and all documented incremental costs incurred by Commonwealth Edison Company in the implementation and evaluation of capability building pilot programs and in its other DSM capability building activities, including but not limited to:
(a) Payroll for specifically identified DSM planning, designing, analysis, implementation and evaluation positions;
(b) Costs incurred for training and education for personnel involved in DSM capability building activities, including materials, travel, seminar participation and DSM organization membership;
(c) Costs incurred for contractors and consultants;
(d) Out of pocket program costs, including costs incurred for advertising and promotion; rebate, subsidy and incentive pay-merits; metering in excess of standard; software, computer hardware, and data acquisition; and demand side measures installed at customer premises;
(e) Costs incurred in conducting workshops and participating in the cooperative process ordered in Docket 90 — 0038;
(f) Indirect costs related to the above.”

Riders are useful in alleviating the burden imposed upon a utility in meeting unexpected, volatile or fluctuating expenses. (See City of Chicago v. Illinois Commerce Comm’n (1958), 13 Ill. 2d 607, 150 N.E.2d 776.) Examination of the Rider 22 costs set forth above involves payroll for specifically identified planning and similar positions; personnel training, education and travel; contractors and consultants costs; out-of-pocket promotion and computer costs; and conducting workshops. Such costs reveal no greater potential for unexpected, volatile or fluctuating expenses which Edison cannot control, than costs incurred in estimating base ratemaking. In contrast, costs over which Edison does not have control, exemplified by fuel costs, may be reflected automatically in a different rider, the Electric Fuel Adjustment Clause, Rider 20. Here, any lack of certainty in predicting costs would be ameliorated by the aggregate costs and revenues method of balancing now followed in setting base rates. In the case of Rider 22, as the Commission itself acknowledges, “the amount of dollars to be recovered by Edison through a rider mechanism is not significant.” Further, the costs are recoverable through the usual base rate mechanism; only a delay in the recovery process would ensue, according to the Commission.

A utility must file its least cost plan every two years. (Ill. Rev. Stat. 1989, ch. 111zk, par. 8 — 402.) Edison decided not to include those ordinary costs in its request for a rate increase and, therefore, did not include them in base rates. Such an omission does not justify single-issue treatment of costs in a rider. The authorization of Rider 22 is contrary to the supreme court decision in Citizens Utilities Co. and BPI II and the October 2, 1991, Commission order must be reversed.

Ill

IIEC and CUB assert that the Commission violated section 9 — 244 of the Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 — 244 (now 220 ILCS 5/9 — 244 (West 1992)) (section 9 — 244)) by approving Rider 22 as an incentive to perform a legally required act.

Section 9 — 244 requires the Commission to study incentive-based regulation. The Commission is without authority to implement directly incentive-based regulation, but only may report its findings to the legislature. (Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1990), 203 Ill. App. 3d 424, 437-38, 561 N.E.2d 426 (Illinois Bell Telephone).) The Commission has set forth as justification for authorizing Rider 22 that it will remove a barrier to least cost planning. By approving Rider 22, the Commission has, in effect, provided Edison with an incentive to comply with both section 8 — 402 and the Commission’s order in Docket No. 90 — 0038, which ordered Edison to propose a rider. Least-cost programs such as this are mandated by statute. Section 9 — 244 requires for any study of incentive regulation to “consider the consistency of such mechanism with the existing obligation of utilities to provide least-cost service and traditional ratemaking principles.” (Ill. Rev. Stat. 1989, ch. 1112/s, par. 9 — 244.) Edison has an ongoing legal obligation to comply with the Commission’s least cost plan. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8 — 402.) There was no reason to give Edison this illegal incentive and the October 2, 1991, Commission order must be reversed for this reason as well.

IV

IIEC and CUB contend that the Commission has improperly authorized Edison to charge ratepayers for lost revenues because the lost revenue provision is illegal.

Lost revenues are revenues that the utility would have earned but for DSM capability building activities. The formula for recovery of lost revenues in Rider 22 fails to take into consideration Edison’s aggregate costs and revenues, which is also the vice inherent in this revenue recapture as set forth succinctly in Commissioner Ruth Kretschmer’s critical characterization of Edison’s recovery of lost revenues, in part:

“This Order [approving Rider 22] allows Commonwealth Edison Company, to recover all documented incremental costs associated with the research and development of demand-side management resource options. These costs include screening, implementation and evaluation of pilot programs as well as carrying costs and — incredibly, in my opinion — lost revenues. Thus, even if the pilot programs work and usage is decreased, ratepayers will be required to reimburse Commonwealth Edison (with interest) for the sales Commonwealth Edison claims it did not make due to the implementation of those programs and for any expenses incurred by Commonwealth Edison in not making those sales.
Incredible but true!”

Charging ratepayers for lost revenues due to decreased demand vitiates the goal of reducing energy costs by reducing demand. Section 8 — 402(a) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8 — 402(a)) provides:

“The objective of this Section shall be to ensure the provision of adequate, efficient, reliable and environmentally safe energy services at the lowest possible cost to all Illinois energy consumers and users, and, in doing so, to utilize, to the fullest extent practicable, all economical means of conservation, nonconventional technologies relying on renewable energy resources, cogeneration and improvements in energy efficiency as the initial sources of new energy supply.”

Requiring ratepayers to bear the expense of services they avoid due to conservation or DSM programs is not only incredible, but runs afoul of basic ratemaking principles. The Act requires that rates be set which “accurately reflect the long-term cost of such services and which are equitable to all citizens.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1-102 (now 220 ILCS 5/1-102 (West 1992)) (section 1-102).) Both in Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 461, 483, 303 N.E.2d 364, and in Candlewick Lake Utilities Co. v. Illinois Commerce Comm’n (1983), 122 Ill. App. 3d 219, 227, 460 N.E.2d 1190, the courts have asserted that ratepayers are not to pay certain costs unless they directly benefit from them. The lost revenue charge here does not reflect the cost of providing electric service, does not reflect a cost that benefits ratepayers and, further, adds to Edison’s revenues without regard to whether Edison’s demand or revenues increased because of factors unrelated to DSM programs. This is yet another basis for reversal.

V

CUB contends that the Commission cannot authorize Edison to collect funds from ratepayers subject to later reconciliation, a violation of the prohibition against retroactive ratemaking.

The Commission approved a formula in Rider 22 for determining charges to Edison’s customers. Part of that formula is a review procedure to determine whether Edison prudently incurred the expenses passed on to its customers. If the review results in a finding that the rates collected were too high, a refund possibly would be ordered. Ordering of refunds when rates are too high, and surcharges when rates are too low, violates the rule against retroactive ratemaking. (See BPI I, 136 Ill. 2d at 209; Illinois Bell Telephone, 203 Ill. App. 3d 424, 561 N.E.2d 426.) Rider 22 was improvidently approved for this reason as well.

VI

IIEC asserts that Rider 22 violates the test year rule because the Commission cannot authorize an automatic increase in rates without applying that rule; there is no evidence in the record as to whether Rider 22 will result in an increase of 1% or more of Edison’s total jurisdictional revenues; and the “needs” test is a corollary to the test year rule.

The Commission concluded that a test year is appropriate only in the context of a base rate increase and here only where an increase in total jurisdictional annual revenues of 1% or more is requested. IIEC maintains that the Commission’s application of the rule is contrary to case law which requires that the Commission view the totality of the utility’s financial circumstances. Further, the Commission allegedly has failed to make a finding as to what level total jurisdictional revenues will be affected and, in fact, the record is devoid of any substantial evidence with which to make this finding.

The supreme court has held that ratemaking is done in the context of a test year. (Citizens Utilities Co., 124 Ill. 2d at 201.) The test year concept is one promulgated by the Commission in its own rules, particularly General Order 210 (83 Ill. Adm. Code §285.150 (1985)). General Order 210 requires a utility to file its rate data in accordance with a proposed one-year test year, which may be an historical, current or future year. This rule has the salutary purpose of preventing the utility from mismatching revenues and expenses. For example, the utility cannot use a low revenue figure from one year and a high expense figure from another year to justify a rate increase.

In BPI II, the supreme court addressed, among other issues, Commonwealth Edison’s right to record and recover deferred charges related to three nuclear generating units, which were broken down into three different categories. The court then examined the categories of deferred charges in context of arguments raised in that case, including whether their recovery violated the Commission’s test year rule and the prohibition against single-issue ratemaking, and held (BPI II, 146 Ill. 2d at 237-38):

“a utility’s rates are a function of its annual revenues and operating expenses, as well as its rate base. In order to accurately determine the utility’s revenue requirement, the Commission established filing requirements under which a utility must present its rate data in accordance with a proposed one-year test year. The purpose of the test-year rule is to prevent a utility from overstating its revenue requirement by mismatching low revenue data from one year with high expense data from a different year. Business & Professional People I, 136 Ill. 2d at 219.”

Deferred depreciation and decommissioning expenses were then held subject to the test year rule because they were operating expenses. (BPI II, 146 Ill. 2d at 240-41.) These deferred operating expenses cannot be recovered, even in context of a rate case, because the test year rule would be violated. Here, “operating expenses” are categorically no different than DSM costs. DSM costs determined outside the context of a test year cannot be recovered from ratepayers. Rider 22, which does not utilize a test year, is illegal for this reason as well.

Edison would be authorized to recover DSM costs from a period other than the test year period upon which Edison’s current revenue requirement is based. A mismatch between DSM expense and the revenue data from the test year, intended to be prevented under General Order 210, would be authorized under Rider 22. In direct contravention of the supreme court’s reasoning, Edison’s Rider 22 contemplates recovering demand-side capability building costs (operating costs) which have not been presented in the context of a test year, contrary to the Commission’s practice of setting rates on a year to year basis, and in violation of its own rule.

The Commission recently determined Edison’s revenue requirement in Docket No. 90 — 0169, based on test year data. The Commission concluded in its order that it was neither necessary nor desirable to require preparation of a test year data forecast in order to permit Edison to recover DSM expenses. The Commission, without any supporting evidence, assumes that each dollar of DSM expense incurred will automatically result in one dollar’s worth of reduced revenue for Edison; however, since test year principles were not followed, the Commission cannot determine whether the increase in DSM expenditures will be offset by a decrease of other expenditures currently reflected in Edison’s revenue requirement, or an increase in revenue not reflected in the test year underlying the utility’s current base rates.

The Commission also asserted that a test year application is not required unless Edison’s revenue request results in an increase of more than 1% of its total jurisdictional revenues. The level of DSM costs Edison expects to recover through Rider 22 is not shown by substantial record evidence; there is no foundation for the Commission to determine whether DSM costs will result in a 1% or more jurisdictional revenue increase. Absent any limit on the amount of costs that can be recovered under Rider 22, the possibility exists of an overall revenue increase of more than 1%.

Clearly, the test year requirement applies to these facts and the Commission’s conclusion to the contrary was error and must be reversed.

VII

IIEC urges error in the Commission’s rejection of its proposed cap on DSM cost recovery.

IIEC proposed a “cap” of $5 million on the amount of DSM costs Edison may recover under Rider 22, which the Commission rejected for the reason that other provisions in the rider would alleviate the need for a cap. The Commission held that the costs to be flowed through the rider would be (1) reviewed by its staff every month; (2) subject to periodic prudency reviews which may result in application of a reconciliation factor; and (3) subject to additional review during the biennial least cost planning dockets and the ongoing cooperative process. The cap was devised by IIEC because Edison continually maintained it did not know how much it intended to recover through the rider. IIEC argued that some protection was needed for the ratepayers and arrived at the $5 million dollar figure because Edison was able to identify only $800,000 in out-of-pocket costs for three pilot programs. IIEC further reasoned that if Edison’s costs approached the cap, it could then petition the Commission for relief, demonstrating the bases for its request.

Commissioner Paul G. Foran’s dissenting opinion, supporting IIEC’s proposed $5 million cap, suggested that elimination of the cap would undermine the Commission’s ability to monitor and review the costs passed through Rider 22, despite the three checks described above, because:

“Such costs could be incurred completely independently of the manner in which the programs are managed and, therefore they would be outside the scope of the annual management prudence review. Such costs may also be of a nature that renders them undetectable until they become ponderous, in which case the monthly status reports, as well as the biennial review, will not be effective checks; this problem will be compounded by the time and resource constraints already faced by the Staff. Thus, the monthly filing and the biennial review may become too little review, too late.”

Commissioner Foran was concerned that the majority had provided Edison with “essentially a blank check for these vague DSM capability expenses.”

Edison claimed that the cap would result in the arbitrary disallowance of prudently incurred costs and would necessarily restrict the flexibility that is needed to promote successful DSM capability building; however, no foundation was established for Edison’s claim that the cap would restrict its capability building efforts. Indeed, Edison did not demonstrate that its DSM capability building efforts to date have been hindered by the lack of an approved cost recovery mechanism, or by a mechanism that would impose a cap, although Edison had been engaged in DSM and conservation activities well before the rider was filed. It must be noted that regardless of whatever cost recovery mechanism is approved or whatever constraints the Commission may impose, the utility is obligated by law to pursue DSM programs. Ill. Rev. Stat. 1989, ch. 111zk, par. 8 — 402.

The Commission’s order is not supported by substantial evidence in the record in this regard and must be reversed.

The reasons set forth above compel this court to reverse the Commerce Commission’s order authorizing Commonwealth Edison to recover costs associated with demand-side management through Rider 22.

Reversed.

McCORMICK, RJ., and DiYITO, J., concur.

      At all relevant times, the period within which to submit the proposed plans was two years. It was not until 1992 that it became three years.

      As Edison notes, a plan proposing demand-side resources over supply-side resources is preferred. Supply-side resources are those that increase the amount of electricity available for consumption in Illinois or in the service territory of each utility. Demand-side resources are those that are derived from implementation of demand-side programs, which reduce the use of electricity and influence the distribution of a utility’s total electricity demand over time. 83 Ill. Adm. Code §440.100 (1991).


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellee, v. ANTHONY J. HATHERLEY, Defendant-Appellant (Hidden Lakes Estate Condominium Association et al., Defendants).
    First District (4th Division)
    No. 1 — 91—3280
    Opinion filed June 10, 1993.

      Richard C. Jones, Jr., and Michael D. Richman, both of Dardick & Denlow, of Chicago, for appellant.
    Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, State Farm Fire & Casualty Company, filed a complaint for declaratory judgment in the circuit court of Cook County. Plaintiff sought a determination that it had no duty to defend or indemnify its insured, defendant, Anthony J. Hatherley, in a separate case brought by Heritage Standard Bank and Trust against defendant. Following a hearing, the trial court granted plaintiff’s summary judgment motion. Defendant brought this appeal, contending that (1) plaintiffs declaratory judgment action was premature, and (2) the trial court improperly granted summary judgment thereby holding that plaintiff had no duty to defend or indemnify in an underlying suit.

We affirm.

The underlying suit is based on a dispute between Heritage Standard Bank and Trust (the Bank) and defendant. The dispute concerns property damage to a condominium unit (the unit) purchased by defendant with a mortgage issued by the Bank. In its four-count complaint against defendant, the Bank alleged that it foreclosed on the unit on November 16, 1984, and later bought the unit at a court-ordered sheriff’s sale. The Bank became entitled to possession of the unit on February 21, 1985. On February 27, 1985, the bank took possession of the unit. Prior to that time, however, defendant was in exclusive possession of the unit and had removed certain improvements, including lighting fixtures, kitchen cabinets and countertops, electrical fixtures, bathroom fixtures, and carpeting. The Bank claimed the unit was damaged by defendant’s removal of the improvements. The Bank later filed a second amended complaint based on negligence, conversion, and intentional trespass.

Pursuant to his homeowner’s insurance policy, defendant requested plaintiff defend and indemnify him against any liability arising from the underlying suit. Plaintiff initially agreed to defend under a reservation of rights, but later filed a motion for summary judgment. Prior to the hearing, plaintiff filed a request to admit facts alleging that defendant removed kitchen cabinets and countertops, a whirlpool bathtub, and carpeting from the unit. Defendant filed no response. After the hearing, the trial court granted plaintiff’s motion for summary judgment, finding that several policy exclusions applied which exempted defendant from liability coverage. Defendant later filed a motion pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), which the trial court denied. Defendant filed the instant appeal.

We will first consider defendant’s argument that plaintiff’s declaratory action was premature.

The general rule is that when an insurer is in doubt as to whether it has a duty to defend its insured, it may seek a declaratory judgment to determine its obligations and rights or defend under a reservation of rights. (Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 304.) In response to defendant’s request for defense and indemnification, plaintiff initially defended under a reservations of rights, but later filed this declaratory judgment action. Defendant argues that the issue of whether the improvements removed from the unit were “fixtures” should have been adjudicated by the trial court in the underlying suit before a declaratory judgment action could properly proceed. We hold that defendant’s argument is without merit.

It is well settled that a court in a declaratory judgment action may not determine whether the insured is actually liable nor may it determine any facts upon which the insured’s liability is based. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 257.) Here, however, the trial court’s ruling had no bearing on whether defendant was liable for the property damage, nor on any facts upon which defendant’s liability would be based. Rather, the trial court merely determined that no allegations in the underlying complaint brought the case within potential coverage of the given policy exclusions. Regardless of whether the improvements aré considered fixtures or personal property, as we shall discuss below, plaintiff had no duty to defend or indemnify defendant in the underlying suit. (See Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301.) We find that plaintiff’s declaratory judgment action was not brought prematurely.

We now consider whether the trial court properly held that plaintiff had no duty to defend or indemnify defendant in the underlying suit.

Whether an insurer has a duty to defend its insured depends on whether the underlying complaint alleges facts within or potentially within coverage of the insurance policy. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092.) In affirming our decision in Wilkin, the Illinois Supreme Court stated that an insurer may properly refuse to defend its insured if “it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage.” (Emphasis in original.) (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 73.) Where the underlying complaint alleges facts which if true would exempt the insured from coverage under the policy, the insurer has no duty to defend. (Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 817.) Moreover, where a court properly holds that an insurer has no duty to defend, the court may also hold that the insurer has no duty to indemnify. Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542.

Illinois case law holds that where the language of an insurance policy is clear and unambiguous, it will be applied as written. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4.) Here, defendant’s insurance policy contained several exclusionary clauses, three of which plaintiff used to support its argument that no theory alleged in the Bank’s complaint in the underlying action gave rise to potential liability coverage. The exclusions to which plaintiff referenced noted that personal liability coverage under the policy did not apply to (1) property damage which is expected or intended by the insured (exclusion la); (2) property damage to property owned by the insured (exclusion 2a); and (3) property damage to property rented to, occupied or used by or in the care of an insured except where the damage was caused by fire, smoke or explosion (exclusion 2c).

In its complaint against defendant, the Bank alleged that defendant was in “exclusive” possession of the unit until February 27, 1985, when the Bank took physical possession of the unit. Sometime prior to that date, defendant damaged or caused the unit to become damaged by removing certain improvements from the unit. This court has previously held that liability for damage to property which is in the custody or care of the insured is frequently excluded from liability coverage. (Bolanowski v. McKinney (1991), 220 Ill. App. 3d 910, 914.) Exclusion 2c in defendant’s insurance policy provided that plaintiff would not be liable for damage to property occupied or used by or in the care of an insured. As the underlying complaint alleged defendant was in “exclusive” possession of the unit, we hold that the trial court properly found that exclusion 2c applied to deny defendant liability coverage under the policy.

Likewise, we find that the trial court correctly found that exclusion la also operated to exclude defendant from liability coverage under the policy. In Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, the plaintiff filed a motion for declaratory judgment seeking a declaration of no duty to defend or indemnify the defendant in an underlying suit which alleged defendant maliciously assaulted another person and maliciously damaged property. In Freyer, the court held that the plaintiff owed no duty to defend based on an exclusion in the policy there, which was similar to exclusion la in the instant case. The court reasoned that “damage directly resulting from the intentional destruction or removal of property is not covered both because it is not accidental and because it falls under the policy exclusion.” Freyer, 89 Ill. App. 3d at 621.

In the present case, the underlying complaint alleged that the unit was damaged by defendant’s removal of certain improvements. This allegation, if true, would exclude defendant from coverage under the policy based on exclusion la. (See Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 817.) Prior to the hearing, plaintiff filed a request for defendant to either admit or deny that he removed several improvements from the unit. However, defendant did not respond. Pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216), a party must respond or object to a request to admit facts within 28 days following service of the request, otherwise such facts may be deemed admitted. (Deboe v. Flick (1988), 172 Ill. App. 3d 673, 677.) Hence, we hold that the trial court properly found that plaintiff had no obligation to defend defendant in the underlying suit.

Since the trial court correctly held that plaintiff had no duty to defend, its decision that plaintiff had no duty to indemnify was also proper. See Bituminous Casualty Corp. v. Gust K. Newberg Construction Co. (1991), 218 Ill. App. 3d 956.

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

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BELINDA HOOVER, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—1919
    Opinion filed June 21, 1993.
    —Rehearing denied September 21, 1993.

      Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald Lyman, and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

An indictment returned in the circuit court of Cook County-charged defendant, Belinda Hoover, with the murder of Cynthia Barker. Following a jury trial, defendant was found guilty of involuntary manslaughter and sentenced to a prison term of three years. On appeal, defendant contends that: (1) the trial court erred in denying her motion to dismiss the indictment based on the State’s failure to preserve evidence of 911 tapes; (2) the statement of Artie Davis implicating defendant in Barker’s shooting did not provide probable cause for defendant’s arrest; (3) she was not proved guilty of involuntary manslaughter beyond a reasonable doubt; (4) the trial court erred in refusing to answer the written questions of the jury during the jury’s deliberation; and (5) the trial court considered an improper factor in sentencing her to a prison term rather than probation. For the following reasons, we affirm.

The record sets forth the following facts relevant to this appeal. On March 20, 1987, at approximately 7:30 a.m., police discovered the body of Cynthia Barker slumped in the front seat of a Ford Mustang automobile parked in front of 8420 South Marquette Avenue, Chicago. Police observed a single gunshot wound to the back of Barker’s head. At the time of her death, Barker’s husband, Artie Davis, lived with defendant in a basement apartment located at 8429 South Marquette Avenue. Defendant had been living with Davis for about a year and a half.

PRETRIAL HEARINGS

Prior to trial, defense counsel moved to quash defendant’s arrest and suppress evidence. At the hearing on the motion, Chicago police detective Michael Rowan testified that he began his investigation of Barker’s death on March 21, 1987. At 3 or 4 p.m., he went to 8729 South Marquette and encountered Robert McCracken on the front steps. The detectives searched Robert and ultimately arrested him for a weapons violation. At that time, Davis and defendant accompanied the officers to the police station for questioning. Police drove defendant home at 2:45 a.m. on March 22,1987.

Detectives interviewed both Robert and Davis. Detective Rowan stated that at this time, Davis was the main suspect in the shooting. Davis took and failed a polygraph examination. The examination revealed that Davis was not truthful when he stated that he did not know anything about Barker’s death. Subsequently, Davis admitted that defendant told him that she shot Barker. Davis further stated that he and Ricky McCracken took the gun from defendant and disposed of it in Lake Michigan.

On March 22, 1987, Detective Rowan and the other detectives returned to 8429 South Marquette in the early afternoon, arrested defendant, her mother, Billie Mahaffey, and Ricky McCracken, Robert’s brother, and transported them to the police station. At that time, defendant was given her Miranda warnings and she gave a statement to police.

At the conclusion of the hearing, the trial court denied defendant’s motion. The trial court found that the police had probable cause to arrest defendant on the afternoon of March 22, 1987, based on Davis’ statement that defendant had shot Barker.

Defense counsel also moved to dismiss defendant’s indictment on the grounds that the State lost certain 911 tapes and that such evidence was material to defendant’s case. The tapes purportedly contained telephone calls made to 911 by Ricky McCracken and Ronald Harris on the morning of March 20, 1987, reporting the shooting. At the hearing on the motion, Assistant State’s Attorney Maria Gonzalez testified that on March 26, 1987, she prepared a subpoena duces tecum for the 911 tapes of the Chicago police department for the case of Belinda Hoover. The subpoena was typed by a secretary and returned to Gonzalez on March 27, 1987. Gonzalez then sent the subpoena to the Chicago police department communications section.

Gonzalez testified that as far as she knew, the subpoena was never honored. She personally never received the tapes, and after she was transferred out of Branch 66, she checked with the secretary there, who told Gonzalez that there was no entry in the unit log book that the tapes were ever returned pursuant to the subpoena.

Barbara Lulkowski, the secretary in Branch 66, testified that when records are subpoenaed, a request slip is given to an investigator, who picks up the subpoenaed records and brings them to the State’s Attorney’s office. The subpoenaed records are then forwarded to the assistant State’s Attorney assigned to the case. In this particular case, the tapes were never found.

Subsequently, on December 31, 1987, defense counsel attempted to subpoena the tapes from the police. At that time he learned that neither the police, the State’s Attorney nor the court had possession of the tapes.

Defense counsel introduced into evidence a copy of a log from the State’s Attorney’s office. On the last page the date “4-10-87” was written in a column next to “People v. Hoover.” The trial court found that there was no evidence that this notation indicated that the tapes were delivered and may in fact have indicated only that a copy of the subpoena was forwarded to the trial judge. At the conclusion of the hearing, the judge denied defendant’s motion to dismiss the indictment. The court described the actions of the State’s Attorney’s office as “careless” and “sloppy” and noted that the State’s subpoena procedure left a lot to be desired, but found that the State did not lose or misplace the tapes in bad faith. The court further concluded that the defense could obtain evidence of what was said on the 911 tapes by some other means.

THE TRIAL

At trial, Gwendolyn Jones testified on behalf of the State that on March 19, 1987, she lent her brown Ford Mustang to her cousin, Cynthia Barker. Jones stated that prior to that day, the automatic gear shift was not working properly and that the gears would stick when shifting. Jones stated that she used a screw driver to remove the gear shift cover, and then used the screwdriver to shift the gears. The screwdriver was in the car at the time Jones lent the car to Barker.

Chicago police officer Daniel McCarthy testified that he received a dispatch at 7:30 a.m. to investigate the nature of an injured woman at 8420 South Marquette. When he arrived at the scene, Officer McCarthy observed a Ford Mustang next to the curb. He noticed that the Mustang had struck the car in front of it and that its headlights were on and the engine running. He found a woman seated in the front seat of the car and determined that she was dead.

Chicago police detective John Duffy testified that he investigated the scene of Barker’s death on March 20, 1987. At that time, he noted that Barker’s hair toward the back, left side of her head had been pulled out so that it was standing out more than the rest of her hair. Barker had a bullet wound to the center rear of her head, and powder bums in the hair surrounding the bullet wound. On cross-examination, Detective Duffy identified a photograph taken of the interior of the Mustang, depicting a screwdriver lying on top of a purse on the floor of the passenger side of the car.

Dr. Robert Stein, chief Cook County medical examiner, testified that he performed an autopsy on Barker on March 20, 1987. Dr. Stein found a bullet wound in the back of Barker’s head, approximately 5^4 inches below the top of her head. The wound was consistent with a gun being held at close range, directly to the back of Barker’s head. Dr. Stein further found evidence of a pregnancy in Barker’s right Fallopian tube. Dr. Stein determined the cause of death to be a gunshot wound to the head with a tubal pregnancy as a contributing factor. On cross-examination, Dr. Stein stated that the toxicology report revealed that Barker’s blood contained a high level of cocaine and an alcohol content equivalent to two bottles of beer.

Ronald Harris testified that on March 20, 1987, he lived at 8411 South Marquette Avenue. At 6:30 that morning, he looked out of his window and saw a car parked across the street with its lights on and motor running. When he left the house to go to work shortly thereafter, he saw that the car was still there, so he crossed the street and saw a woman in the car who looked like she was sleeping. He said, “Hello, hello,” but there was no response. Then he saw blood and said to his neighbor, “The lady has been shot. Call the police.” When the police did not arrive, Harris called 911 himself. Finally, the police arrived, and a sergeant turned off the car engine.

Ricky McCracken testified on behalf of the State that on March 20, 1987, at approximately 5 a.m., he heard a car horn and then heard Davis’ car alarm go off. At that time, Davis’ car was parked directly in front of the two flat where Ricky lived with his mother, Ruby McCracken, in the second-floor apartment. Ricky testified that Davis lived in the basement with defendant, Ricky’s cousin, and that defendant’s parents, Billie Mahaffey and James Myers, lived in the first-floor apartment. Ricky went out to investigate the noise and saw Barker in her car calling out Davis’ name. As Ricky approached Barker, she drove off, making a right turn at 84th and Marquette. Ricky returned to the house and met Davis, Mahaffey and defendant in the living room. Ricky then heard the car return, coming through the alley at the rear of his house. He went to investigate, but by the time he got out to the alley, Barker had pulled around to the front of the house and started blowing her horn again. He did not go back outside.

Shortly thereafter, Ricky met defendant on the front steps as she was coming into the house. Defendant was shaking and he asked her what happened. Defendant replied, “I shot her. It just happened. It just went off.” Ricky talked with Davis and Mahaffey about what they should do. Davis decided they should get rid of the gun. They decided not to call the police from the house because they did not want their phone number picked up on the computer. Davis and Ricky drove to 79th and Exchange Streets and at approximately 5:20 a.m., Ricky called 911 from a pay phone. They then drove to LaRabida Hospital at 67th Street, near Lake Michigan. Davis threw the gun into the lake, and then threw the bullets into the lake individually. After that, Ricky and Davis returned home. At about 6:30 a.m., Ricky left the house to go to work. At that time, he noticed that the car was still there, the lights were on and the engine was running. On cross-examination, Ricky testified that upon his arrest, he was told that he could go to jail for concealing or obstructing evidence of a murder.

Dr. Robert M. Moriarty, professor of chemistry at the University of Chicago, testified on behalf of the defendant that Barker had a high level of cocaine in her system at the time of her death, and that a tubal pregnancy was consistent with regular use of cocaine. Dr. Moriarty stated that the physical effects of cocaine are a rapid pulse rate and hypertension and the psychological effects are restlessness, irritability, inability to sleep, aggression, paranoia, paranoid delusion, combative behavior, and paranoid miscalculations.

Defendant testified on her own behalf that she began dating Davis in July 1985. In October 1985, defendant and Davis moved into a basement apartment with her young daughter from a previous marriage. On October 31, 1985, defendant received a telephone call from Barker. Barker stated that she was Davis’ wife and then said, “I hope you have a nice ride to work.” When defendant went out to her car, it was gone. Following this incident, defendant received a series of “crank” telephone calls, including “hang-up” calls and calls where defendant heard only breathing on the other end of the line.

The calls ceased for about seven or eight months. Then in April 1986, defendant became pregnant with Davis’ child. Barker began to call defendant almost daily, threatening defendant and her baby, saying such things as, “hi bitch, how are you today?”; “I don’t know what you think you [sic] doing with my husband. I’m never going to give my husband a divorce”; and that defendant “must be crazy” if she thought she was going to have a baby by Davis. During that same period of time, Davis related an incident to defendant wherein Barker arrived at Davis’ place of employment and attacked him with a knife. On another occasion, Barker threw a steel garbage can lid at defendant.

In addition, defendant related several incidents where Barker followed her while she was driving her car. On one occasion, defendant was driving her children home from their grandmother’s house, when she noticed that the wheels of her car were wobbling. When she got out of the car to investigate, defendant noticed that all the lug nuts to the car’s wheels were loosened, and that one lug nut was missing. When defendant arrived home, she received a call from Barker asking if she had made it home all right.

On March 20, 1987, Barker called defendant at approximately 4:45 a.m. and stated, “put Artie on the phone, I want to talk to him now.” Defendant asked Barker not to call her house at that time of the morning and hung up the phone. Barker called again demanding to speak to Davis, and when defendant’s mother picked up the extension, defendant hung up the phone. Defendant stated that Barker sounded drunk. Barker then called a third time and told defendant to tell Davis that if he did not come to the phone, she would come over there to meet him at his car. About two minutes later, at 5 a.m., the alarm sounded on Davis’ car, which was parked in front of defendant’s apartment.

Defendant went upstairs, looked out of the window and saw a brown Mustang automobile parked in front of her apartment. Defendant then went back downstairs and got a jacket and her gun from between the mattresses of her bed. She put the gun in the right pocket of the jacket. As she was going outside, she saw her cousin Ricky walking toward the Mustang. At that point, Barker sped off down the street. Defendant turned off the car alarm and went back into the house.

By the time defendant got back to the house, the alarm was sounding again and she heard a horn blowing in front of the house. Defendant went back outside and found Barker parked across the street. Defendant crossed the street and approached Barker’s car. Defendant asked Barker to stop calling her house and coming by and disrupting the neighborhood. As defendant was talking, Barker rolled down her window. Barker then stated, “Well, I’m not going anywhere ’til my husband come out of here so you may as well just go get him.” Defendant told Barker that Davis was not home, and Barker responded, “His car is here. I know he is here. If you don’t go get him, I’m going to beat your ass.” Barker then reached out and grabbed defendant with both hands and pulled her into the car. A struggle ensued, and defendant attempted to break loose. Defendant grabbed Barker’s hair with both hands, the gun was in her right hand and her hand was near the top back of Barker’s head. Defendant saw Barker reach for a shiny object on the floor of the car on the passenger side and defendant thought it was a knife. Suddenly the gun went off and the car rolled forward.

Defendant got out of the car and ran into the house. She saw her mother and Ricky in the living room and told them that the gun had gone off and that she thought she shot Barker. Defendant’s mother said they needed to call an ambulance. Ricky said he would make the call. Then Davis took the gun and he and Ricky left the house. Defendant’s mother told defendant not to say anything about the incident.

The next day, at around 5 p.m., the police took defendant, Davis, Ricky and Mahaffey to the police station. Defendant was released at 3 a.m. on March 22, 1987. Later that day, the police returned at 2 p.m. and arrested defendant. Defendant was questioned at the station by Sergeant Rutherford Wilson. Sergeant Wilson told defendant, “I know you did it. Artie already told me it was an accident. He failed the polygraph test so you may as well just tell me what happened.” Sergeant Wilson then told defendant that if she did not tell him what happened, she would get a sentence of the maximum years, her family would be locked up and she would never see her children again. Defendant then told Sergeant Wilson what had happened. Detective Duffy then came in and defendant was taken to an interrogation room.

At approximately 6 p.m., defendant made a statement, which was transcribed by the court reporter. Defendant was asked to read and initial the statement. Defendant made corrections to her statement and initialled them.

On rebuttal, Sergeant Rutherford Wilson testified that he never told defendant that if she did not tell what happened she would get the maximum years nor did he tell defendant that her family would be locked up and she would never see her children again.

Following closing arguments, the jury found defendant guilty of involuntary manslaughter. After a hearing, the trial judge sentenced defendant to three years’ imprisonment. This timely appeal followed.

Initially, defendant contends that the trial judge erred in denying her motion to dismiss the indictment on the ground that the State acted in bad faith by mishandling the 911 tapes subpoenaed in defendant’s case. Defendant argues that the tapes of telephone calls to 911 had exculpatory value and that the State purposely hid the tapes from the defense thereby denying her due process rights. Defendant seeks a reversal of her conviction and dismissal of the indictment on these grounds.

In Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, the United States Supreme Court determined that unless a criminal defendant can show bad faith on the part of the State, failure to preserve “potentially useful” evidence does not constitute a denial of due process of law. This court has adopted the “bad faith” test set forth in Youngblood. See e.g., People v. Tsombanidis (1992), 235 Ill. App. 3d 823, 601 N.E.2d 1124; People v. Hall (1992), 235 Ill. App. 3d 418, 601 N.E.2d 883; People v. Young (1991), 220 Ill. App. 3d 488, 581 N.E.2d 241; People v. Stallings (1991), 211 Ill. App. 3d 1032, 570 N.E.2d 820; People v. Lampkin (1990), 193 Ill. App. 3d 570, 550 N.E.2d 278.

In the present case, defendant has failed to show that the State acted in bad faith in failing to preserve the 911 tapes. The record here supports the trial court’s findings that the State acted with “carelessness,” and that its subpoena procedures were “sloppy,” but the record does not contain any evidence of bad faith on the part of the State’s Attorney’s office. Rather, the record shows that the evidence was lost or misplaced in the process of complying with standard office procedure. Cf. People v. Walley (1991), 215 Ill. App. 3d 971, 575 N.E.2d 596 (State persisted in employing improper subpoena duces tecum procedure despite case law and recent warning to avoid such procedure).

Moreover, we are not convinced that the 911 tapes rise to the definition of “potentially exculpatory evidence.” Where audio tapes have been lost or mislaid by the State, courts are not required to accept the defendant’s speculative version of the favorable nature of the lost tapes to the defense. (Hall, 235 Ill. App. 3d at 428.) Courts also consider the defendant’s opportunity to seek the lost evidence by other means. (California v. Trombetta (1984), 467 U.S. 479, 488-89, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534; Hall, 235 Ill. App. 3d at 427.) The record in the present case shows that evidence of the telephone calls to 911 was obtainable through the testimony of witnesses at trial. We therefore hold that the trial court properly denied defendant’s motion to dismiss the indictment.

Next, defendant contends that the statement of Artie Davis, implicating defendant in Barker’s shooting, was insufficient to provide probable cause for defendant’s arrest.

Whether probable cause to support a warrantless arrest exists is a commonsense, practical question to be determined by the totality of the circumstances. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Generally, probable cause exists when the circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed and that the individual arrested is responsible. (Ill. Rev. Stat. 1985, ch. 38, par. 107 — 2(l)(c); People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) In determining whether the officer had probable cause, the officer’s factual knowledge based on his prior law-enforcement experience is sufficient. (Tisler, 103 Ill. 2d at 237.) Further, probable cause may be founded upon evidence which would not be admissible at trial and which need not be sufficient to establish guilt beyond a reasonable doubt. (People v. Johnson (1989), 187 Ill. App. 3d 756, 771, 544 N.E.2d 392.) In fact, even hearsay is proper grounds for establishing probable cause. Thus, an officer can relate data that was observed by another and told to him. Provided that the person supplying the data is a citizen-informer and not a police informer, the police do not have to establish the informer’s prior reliability or to corroborate the information. Johnson, 187 Ill. App. 3d at 771, citing People v. Beto (1980), 86 Ill. App. 3d 622, 408 N.E.2d 293.

Moreover, even information from a suspect which implicates another provides sufficient grounds for probable cause if buttressed by corroborating evidence or by the officer’s knowledge and experience. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 988.) If a trial court finds that the police had such probable cause in a particular case, a reviewing court should let the finding stand unless it is manifestly erroneous. People v. Brown (1990), 194 Ill. App. 3d 958, 964, 553 N.E.2d 712.

In People v. James, a woman’s body was discovered by the maintenance man at her apartment building. Police observed that the apartment had been entered through a broken kitchen window and that the woman was strangled. The maintenance man told the police that a man known as “Gigilo” had been at the victim’s apartment several days earlier. Upon investigation, the police determined that Gigilo was Edward Meeks and brought Meeks in for questioning. At first, Meeks denied involvement, then confessed and implicated James, stating that James had strangled the victim. Based on Meeks’ statement, the police brought James into custody. Initially, James denied knowledge of the crime, then, when he was told that Meeks had implicated him, he admitted involvement and signed a written confession.

The supreme court ruled that Meeks’ statements were sufficient to establish probable cause to arrest James. The court noted the requisite indicia of reliability of Meeks’ statement was established by the facts that the information Meeks provided was corroborated by the officer’s observations at the scene; Meeks specifically identified James; Meeks had not been offered any specific inducement for identifying James; and the police investigation provided independent verification of a substantial part of the statement. Based upon these facts, the James court concluded that “[t]o decide [that probable cause did not exist] would ignore the [United States] Supreme Court’s admonition that the probable cause determination is a ‘commonsense, practical question.’ ” James, 118 Ill. 2d at 225, quoting Illinois v. Gates (1983), 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2328.

In the present case, police discovered Barker’s body in a Ford Mustang, parked across the street from defendant’s home. Police observed a fatal gunshot wound to the back of Barker’s head. Upon learning that Barker was married to Davis, police questioned Davis about the shooting. At first, Davis denied that he knew anything about the shooting, but after failing a polygraph test, admitted that defendant had told him that she shot Barker. Davis further admitted that he took the gun from defendant and disposed of it in Lake Michigan. Police did not offer Davis any specific inducement for identifying defendant. Based upon these facts, the police had probable cause to arrest defendant.

Next, defendant contends that the evidence presented at trial failed to establish that she was guilty of involuntary manslaughter. Defendant initially argues that the evidence established that she acted in self-defense against an aggressor who was committing a forcible felony (aggravated battery). In the alternative, defendant argues that the shooting was only an accident.

Whether a killing is justified under the law of self-defense is a question of fact to be determined by the trier of fact. (People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492.) That determination will not be disturbed on appeal unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

The use of force in defense of the person is justified where (1) force had been threatened against defendant; (2) defendant was not the aggressor; (3) the danger of harm is imminent; (4) the force threatened was unlawful; (5) defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force used was necessary; and (6) that the beliefs were reasonable. (People v. Balfour (1986), 148 Ill. App. 3d 215, 221, 498 N.E.2d 547; People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499.) Once defendant has presented some evidence as to each of these elements, the State has the burden of disproving the defense beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275.) If the State negates any one of the self-defense elements beyond a reasonable doubt, it has met its burden of proof. People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290.

In the present case, there is no evidence in the record to support self-defense. Defendant became the aggressor when she approached Barker, grabbed onto her hair, and placed her handgun at the back of Barker’s head. Although defendant claimed that she saw a shiny object on the floor of the passenger side of the car, she admitted that she did not see Barker with a weapon. Therefore, defendant cannot claim that she was in imminent fear of death or great bodily harm.

If the defendant is the aggressor, defendant’s use of deadly force is justified only if:

“(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate^] the use of force ***.” Ill. Rev. Stat. 1985, ch. 38, pars. 7 — 4(c)(1), (c)(2).

In the present case, the record shows that defendant never attempted to escape the danger, if such danger existed. Defendant never withdrew from the struggle or terminated her use of force. The record thus reveals no evidence which tends to show that force was threatened against the defendant.

Further, the record indicates that the shooting constituted recklessness rather than a mere accident. Section 9 — 3 of the Criminal Code of 1961 provides:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3.)

The Criminal Code defines recklessness as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.)

An accident is not to be equated with recklessness, and an accidental discharge of a gun will not support a conviction for involuntary manslaughter. (People v. Franklin (1989), 189 Ill. App. 3d 425, 545 N.E.2d 346.) The determination of whether a killing has resulted from an accident or reckless conduct, however, is a question for the trier of fact. (People v. Schwartz (1978), 64 Ill. App. 3d 989, 993, 382 N.E.2d 59.) That determination will not be disturbed unless it is palpably contrary to the weight of the evidence. Franklin, 189 Ill. App. 3d at 429.

This court has held that pointing a loaded gun at another constitutes recklessness because it is a gross deviation from the standard of care which a reasonable person would exercise. (Schwartz, 64 Ill. App. 3d at 994.) Further, defendant’s contention that the firing of the weapon was accidental because she did not fire it voluntarily has been previously rejected by this court. (People v. Andersch (1982), 107 Ill. App. 3d 810, 818, 438 N.E.2d 482.) It is clear that defendant’s acts of taking a loaded gun out to Barker’s car to confront her, then grabbing Barker’s hair and placing the gun at the back of Barker’s head during the struggle, were reckless conduct. As such, defendant was proved guilty of involuntary manslaughter beyond a reasonable doubt.

Defendant further contends that she was denied a fair trial by the trial court’s refusal to answer questions submitted to the trial judge by the deliberating jury. During deliberations, the jury sent a note to the court which stated:

“That the defendant performed the acts which caused the death of Cynthia Barker.
In regard to the above statement: What is the definition of the word ‘acts’?
Does it mean ‘pulled the trigger which discharged the gun that killed Cynthia.’
Does it also mean a sequence of events which resulted in the accidental discharge of the gun which killed Cynthia.
Does it refer to the ‘acts’ of murder with which she is charged?”

Ten minutes later, the jury sent the judge a second note which stated: “In regards to the sentence ‘A person is justified in the use of force,’ Does the word force mean ‘shooting’ or could it apply to a struggle.” In response, the trial judge informed the jury that it received the instructions, that the words have common, everyday meanings, and that it was to continue to deliberate.

When the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, the court should attempt to clarify the issue in the minds of the jury members. (People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287.) However, the trial court should not answer a question from the jury which calls for the court to make a conclusion based on its evaluation of the evidence. People v. Doe (1988), 175 Ill. App. 3d 371, 376, 529 N.E.2d 980.

In the present case, the record shows that the questions submitted by the jury indicated confusion as to what the evidence revealed. Under the circumstances, the trial court properly refused to assist the jury in evaluating the evidence. As such, defendant was not denied a fair trial.

Finally, defendant contends that the trial judge improperly considered Barker’s death as an aggravating factor in refusing to sentence defendant to a term of probation instead of imprisonment. As evidence of her contention, defendant points to the trial judge’s statement, “probational or conditional discharge would depreciate [sic] the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

Defendant’s contention is without merit. Section 5 — 6—1(a)(2) of the Unified Code of Corrections specifically provides that a trial court may impose a sentence of probation or conditional discharge “unless *** the court is of the opinion that *** probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-l(a)(2).

It is well established that the imposition of a sentence is a matter of judicial discretion and that, absent an abuse of that discretion, the sentence as determined by the trial court should stand. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.) A reviewing court will hesitate to alter a sentence, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant’s sentence of three years’ imprisonment is well within the statutory guidelines for involuntary manslaughter. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(6) (involuntary manslaughter is punishable with a term of not less than two years and not more than five years).) As the trial judge complied with the appropriate statutes in sentencing defendant, we find no error in defendant’s sentence.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUALBERTO MANCILLA, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—0934
    Opinion filed June 29, 1993.
    — Modified on denial of rehearing August 17, 1993.

      Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Lou Anne Corey, and Lisa Travis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Gualberto Mancilla, appeals his jury conviction of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(b)(1) (now 720 ILCS 5/12-14(b)(l) (West 1992))), for which he was sentenced to eight years’ imprisonment. Defendant raises as issues for review whether (1) the State proved him guilty beyond a reasonable doubt, (2) the State threatened a witness causing her to refuse to testify, (3) the circuit court erred in admitting a mother’s hearsay testimony under section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10 (now 725 ILCS 5/115— 10 (West 1992))), (4) the circuit court improperly denied admission of his hearsay statement, (5) the circuit court properly limited his cross-examination of the victim, (6) he was denied a fair trial by the prosecutor’s closing argument, and (7) he received effective assistance of counsel.

The State alleged that defendant sexually assaulted a five-year-old girl, E.R. Her mother, N.R., testified that on July 19, 1990, she was at home with E.R. and her four-year-old son. The family lived on an upper floor of a small apartment building. There was a porch directly outside of the kitchen, with stairs leading from the porch to a small backyard.

At 10:15 a.m., N.R. bathed the children and dressed E.R. in a blouse and shorts. E.R. went into the backyard to find her cat. She was gone for 3½ to 4½ minutes. N.R. met E.R. halfway down the stairs. E.R. was frightened and told her mother that “the bad man had touched my vagina.” E.R.’s shorts were “a little crooked.” N.R. asked her if the man was still there, and E.R. said he had left. N.R. took E.R. into the backyard and asked her where it happened. E.R. brought N.R. underneath the basketball hoop in the backyard.

While in the backyard, E.R. saw defendant in the first-floor apartment through an open door and told her mother he was the offender. N.R. took E.R. home. N.R. returned to the first-floor apartment and, in an attempt to detain defendant, a television cable employee, she requested him to repair her cable. N.R. left and telephoned 911. She returned to the first-floor apartment where defendant agreed to repair her cable.

N.R. walked towards the front of the apartment building when the police arrived. She identified defendant to the officers and went to get E.R., who told them what happened and asserted that defendant was the offender.

E.R. testified that she went into the backyard to get her cat when defendant came from “inside of a house pretending to fix the cable.” Defendant pulled her onto his lap and asked her if that was her “dog” and basketball hoop. She answered affirmatively. Defendant touched her vagina with his finger on the inside of her shorts. He put his “whole hand” into her shorts and “touched it through my two little holes.” E.R. then went upstairs and told her mother.

Dr. Sharon Ahart of Mount Sinai Hospital testified that she examined the victim on July 19, 1990. She observed superficial abrasions and tenderness on the external labia of the vagina, abrasions with some bleeding on the internal labia of the vagina, evidence of trauma to the hymen, and a rectal spasm that indicated some trauma to “the muscle around there.” Dr. Ahart was of the opinion that the victim had been acutely sexually assaulted earlier that day. The victim told Dr. Ahart that the cable man had touched her vaginal area with his hands and had put something into her buttocks. The victim also told her that no one else had ever touched her vagina or buttocks.

The jury returned a guilty verdict. Defendant retained a new . attorney, who moved for a new trial based upon the purported newly discovered evidence of statements made by Eva Cruz, an occurrence witness. The State objected to the motion for a new trial, claiming that Cruz’ statements were not newly discovered evidence, and told the court that Cruz was referred to in the police reports, was interviewed by State’s Attorneys, and was present on the day of trial.

New defense counsel told the court that he interviewed Cruz following the trial, and she would testify that she was outside with defendant and never saw him touch the victim. An assistant State’s Attorney responded that such testimony would be contrary to the statements Cruz gave her and the police. The court observed that such evidence “certainly slipped” defendant’s former counsel and the State, but questioned whether it was newly discovered. Defense counsel asserted that Cruz told him she had never spoken with defendant’s former counsel. The State requested that Cruz be appointed counsel and advised of the consequences of perjury.

Cruz was called before the court. Through an interpreter, the State informed Cruz that her proposed testimony was inconsistent with her earlier statements that she did not know what defendant was doing while he was outside her apartment. The State again requested that Cruz be advised of the consequences of perjury and mentioned her immigration status. The State further cautioned that Cruz’ testimony could expose her to criminal prosecution for the obstruction of justice.

The court offered Cruz appointed counsel. Cruz said she desired appointed counsel if her testimony would hurt her immigration status. After speaking privately with Cruz, Cruz’ counsel informed the court: Cruz was a resident alien from Mexico; Cruz had spoken through an interpreter with the police, an assistant State’s Attorney, and an unidentified investigator; Cruz had been asked a few days earlier by defendant’s wife and brother to testify on his behalf; and Cruz was unaware at that time that the trial had been completed. Cruz’ counsel said he told Cruz that her proposed testimony directly contradicted her earlier statements to police and the assistant State’s Attorney. Cruz decided not to testify. A major factor in her decision was concern for her immigration status. Her decision may have been based partly on the possible exposure to criminal charges for perjury and obstruction of justice. The court allowed Cruz to withdraw as a witness.

Defense counsel filed an affidavit which stated the following. He spoke with Cruz on February 22, 1991, through an interpreter. Cruz told him: (1) she lives in the rear basement apartment at the address involved; (2) at 10:50 a.m. on July 19, 1990, she heard a knock and let defendant, a cable employee, into her apartment through the back door; (3) defendant looked at the television and then went to his truck to get a cable box; (4) Cruz walked out through her back door and watched defendant go to his truck and return one to two minutes later with tools, a ladder, and a cable box; (5) as defendant returned, Cruz saw E.R. coming downstairs; (6) defendant entered Cruz’ living room and installed the cable box, which took approximately three minutes; (7) defendant then left her apartment to set up his ladder; (8) Cruz went outside and watched defendant climb the ladder, during which time E.R. was outside; (9) the police arrived shortly thereafter and arrested defendant; (10) when Cruz asked N.R. why defendant was being arrested, N.R. told her to mind her own business; (11) defendant was never out of her sight from the time he arrived at her back door until the time police arrested him, and Cruz never saw him touch or harm E.R.; (12) Cruz did not notice if E.R.’s pants were twisted; (13) when Cruz spoke with police, N.R.’s brother acted as the interpreter; (14) Cruz never spoke with defendant’s trial counsel; (15) Cruz went to court because she received a subpoena, but she never spoke to “the Assistant” about the facts of the case and was told to go home; (16) Cruz had not been bribed, threatened, or promised anything in return for her testimony; (17) Cruz had never seen defendant before July 19, 1990; (18) Cruz knew N.R. and E.R. as upstairs tenants; and (19) Cruz is not related to, nor friends with, nor dislikes defendant, E.R., or N.R.

I

Defendant initially contends that the State failed to prove him guilty beyond a reasonable doubt because the State’s version of events is inherently unbelievable and contrary to universal human experience.

Defendant maintains it is unbelievable that he would suddenly stop his work as a cable employee, assault a stranger in clear public view within minutes, and then calmly return to work. In addition, defendant submits that the five-year-old victim was confused when she identified him as the offender. He properly notes that where the State’s evidence is improbable, unconvincing, and contrary to human experience, a court will find the defendant has not been proved guilty beyond a reasonable doubt. (People v. Dawson (1961), 22 Ill. 2d 260, 265, 174 N.E.2d 817.) Defendant attempts to analogize his case with Dawson (22 Ill. 2d 260, 174 N.E.2d 817), People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96, People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261, and People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651; however, they are inapposite.

A criminal conviction -will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) The relevant inquiry is whether the evidence, viewed in the light most favorable to the State, would support any rational trier of fact in finding that the essential elements of the crime had been proved beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.

Here, the jury heard the victim herself testify that defendant touched her “two little holes.” The mother testified that the victim told her the bad man had touched her vagina. Dr. Ahart testified that she examined the victim and concluded she had been acutely sexually assaulted on the day in question. Moreover, the victim told her the cable man had touched her vaginal area and buttocks. In view of the foregoing evidence, we conclude that defendant was proved guilty beyond a reasonable doubt.

II

Defendant claims he is entitled to a new trial based upon the newly discovered evidence of Cruz’ statements. Defendant further asserts, as a related issue, that he was denied due process because the State threatened Cruz causing her to refuse to testify.

Here, the circuit court never ruled whether Cruz’ statements were newly discovered evidence because Cruz declined to testify. We proceed to defendant’s claim that the State violated his due process rights by threatening Cruz causing her not to testify.

The State first counters that defendant has waived review of this issue by failing to object at trial and raise the issue in a post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) We address the issue on its merits because the actions in question occurred after the trial during a hearing on a post-trial motion for a new trial.

A fundamental element of due process is the right of an accused to present witnesses in his or her own defense. (Washington v. Texas (1967), 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1023, 87 S. Ct. 1920, 1923.) That fundamental right is violated if the State or the court exerts improper influence on defense witnesses causing them not to testify. Webb v. Texas (1972), 409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351, 353.

Defendant appropriately analogizes this case with Webb and People v. King (1992), 228 Ill. App. 3d 519, 593 N.E.2d 694, aff’d (1993), 154 Ill. 2d 217, 608 N.E.2d 877. In Webb, the Court reversed a defendant’s conviction because the trial judge drove a prospective defense witness from the stand by telling him that if he lied he would be prosecuted, convicted for perjury, and have to serve more time in prison. (Webb, 409 U.S. at 97, 34 L. Ed. 2d at 333, 93 S. Ct. at 353.) Similarly, in King, an appellate court reversed and remanded a defendant's conviction where the circuit judge drove a prospective defense witness from the stand by threatening to revoke an earlier plea bargain made before that court if it believed the witness was lying. (King, 228 Ill. App. 3d at 525.) Our supreme court recently affirmed the reversal. King, 154 Ill. 2d 217, 608 N.E.2d 877.

The State maintains that it did not threaten Cruz or intimidate her into not testifying. The State correctly points out that it is not improper for a prosecutor to advise prospective witnesses of the penalties for peijury or to voice disbelief about the veracity of their proposed testimony. (People v. Eubank (1970), 46 Ill. 2d 383, 392, 263 N.E.2d 869.) Neither is it inappropriate for a prosecutor to suggest a witness be appointed counsel to be advised of the privilege against self-incrimination. (People v. Hammond (1990), 196 Ill. App. 3d 986, 993, 554 N.E.2d 534; People v. Pantoja (1976), 35 Ill. App. 3d 375, 380, 342 N.E.2d 110.) The State analogizes the present case with People v. Cedillo (1986), 142 Ill. App. 3d 849, 492 N.E.2d 227. There, a prospective witness/codefendant invoked his privilege against self-incrimination after the prosecutor told him he would be prosecuted for perjury if he testified contrary to a stipulation he made at his own guilty plea proceedings. (Cedillo, 142 Ill. App. 3d at 850-51.) The court held that the prosecutor’s conduct was not improper.

Our supreme court in King recently suggested a two-prong test for establishing a violation of a defendant’s right to present witnesses in his or her own behalf: (1) whether the admonitions actually caused the prospective witness to decline to testify, and (2) whether the admonitions are “somehow improper.” (King, 154 Ill. 2d at 224.) The facts and circumstances of each case must be considered. King, 154 Ill. 2d at 225.

As to the first prong, we observe that the record expressly states Cruz decided not to testify because she was concerned with her immigration status. Her concern of criminal prosecution may also have played a part. We conclude that the State’s statements actually caused Cruz to decline to testify.

The second prong, whether the prosecutor’s statements are “somehow improper” (King, 154 Ill. 2d at 224), next must be determined. The critical distinction between the cases cited by defendant and those cited by the State lies in the determination of whether the prosecutor’s warnings concerning perjury and possible criminal prosecution are used as instruments of intimidation. (See People v. McKiness (1982), 105 Ill. App. 3d 92, 98-101, 433 N.E.2d 1146 (and cases cited therein); Annot., 88 A.L.R.4th 388, 396 (1991).) Here, Cruz, a resident alien from Mexico, appeared in court and was prepared to testify. The State requested that Cruz be advised of the consequences of perjury. Cruz was called before the court. Through an interpreter, a prosecutor told Cruz her proposed testimony was inconsistent with her earlier statements. The prosecutor requested that Cruz be advised of the consequences of perjury and specifically mentioned her immigration status. Then the prosecutor cautioned that Cruz’ testimony could expose her to criminal prosecution for the obstruction of justice. Although it was possible that the State could have charged and convicted Cruz of penury (Ill. Rev. Stat. 1991, ch. 38, par. 32 — 2 (now 720 ILCS 5/32-2 (West 1992)); Ill. Rev. Stat. 1991, ch. 101, par. 5 (now 5 ILCS 255/5 (West 1992))) and obstructing justice (Ill. Rev. Stat. 1991, ch. 38, par. 31-4 (now 720 ILCS 5/31-4 (West 1992))), convictions which may have subjected Cruz to deportation (8 U.S.C. §1251(2)(A) (1992)), we find it highly unlikely (1) that the State would have pursued such charges, and (2) if it had, that it would have obtained a conviction against Cruz. The State would have had to prove that Cruz knowingly gave a false statement. (See Ill. Rev. Stat. 1991, ch. 38, par. 32 — 2; ch. 101, par. 5; ch. 38, par. 31 — 4.) The only indications Cruz was lying were statements Cruz allegedly made to police and the assistant State’s Attorney through interpreters. Cruz had not signed a sworn statement or testified to the contrary of her proffered testimony. Moreover, Cruz apparently had no motive to lie as she and defendant are complete strangers who briefly met while he repaired her cable. The proper method to challenge Cruz’ proffered testimony in the face of her alleged contrary statements would be to subject her to impeachment at trial, not to subject her to a fear of deportation. Under the circumstances of this case, we find that the State’s repeated statements concerning criminal prosecution and the mention of Cruz’ immigration status were not given in a paternal manner, but rather were intended to intimidate Cruz causing her to refuse to testify. We therefore conclude that such statements were improper.

The defendant must also prove prejudice to warrant reversal. (King, 154 Ill. 2d at 225-26.) A relevant factor is whether additional witnesses are available to the defendant. (King, 154 Ill. 2d at 226.) Here, only Cruz could provide defendant with a potential alibi. We find that defendant was prejudiced.

For the foregoing reasons, we reverse and remand for a new trial. (See King, 154 Ill. 2d at 226.) Given this disposition, we need not address defendant’s remaining contentions. In the interest of judicial economy, however, we direct the State upon retrial to take note of our holding in People v. Mitchell (1992), 228 Ill. App. 3d 917, 930-31, 593 N.E.2d 882, aff’d in pertinent part (1993), 155 Ill. 2d 344, 350, that it is error in a jury trial to admit into evidence, pursuant to section 115 — 10 (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10 (now 725 ILCS 5/115 — 10 (West 1992))), testimony of a child’s out-of-court statement without conducting the proper hearing.

Reversed and remanded.

McCORMICK, P.J., and SCARIANO, J., concur.