author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMIE KING, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—0118
    Opinion filed June 30, 1993.

      Timothy P. Nance, of Tinley Park, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a'jury trial, defendant, Jimmie King, was found guilty of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)) for the death of Andrew Vaitkus and sentenced to 60 years’ imprisonment. On appeal, defendant asserts that the trial court erred in (1) denying his motion in limine to preclude the State from offering evidence of other crimes; (2) overruling defense objections to prejudicial evidence of a missing watch introduced by the State in violation of Supreme Court Rule 412 (134 Ill. 2d R. 412); (3) ordering the jury to disregard a material witness’ direct response to a defense question on cross-examination; and (4) sentencing him to an excessive sentence.

Patricia Marion, an X-ray technician, testified that she and defendant left work at the West Side Medical Center around 4 p.m. on January 23, 1989, in Marion’s blue 1984 Chevette. The car had no front license plate, but it did have a back license plate that read “CBK 908.” Ms. Marion, who had known defendant for four months, was romantically involved with him.

After making two stops, Marion and defendant went to 79th Street and Jeffrey Boulevard in Chicago so that defendant could buy cocaine. They then went to defendant’s mother’s house, where defendant smoked the cocaine. According to Marion, defendant purchased and smoked cocaine at least two more times that evening. Around 11 p.m., Marion asked defendant to drive her home.

On the way to Marion’s home, defendant stopped at the Midway Motor Inn. Marion waited in the car for five minutes while defendant went inside to use a public telephone. As defendant walked out of the motel, Marion saw a young white guy trying to stop him. Defendant, who was moving fast, brushed by the man. Marion saw people running and looking out the windows.

As defendant drove away, Marion asked him what had happened. He said that the people in the motel were acting crazy and would not let him use the telephone. According to Marion, defendant drove away fast, seemed nervous, and kept looking in the rearview mirror. Instead of driving to Marion’s house as planned, defendant drove to his house.

Patrick Donahue, a security guard, testified that about 10 p.m. on January 23, 1989, he went to the Midway Motor Inn to visit his girl friend, who was the bartender. The victim, whom Donahue knew, was sitting at the bar having a drink. About one-half hour later, the victim, who did not appear drunk, left the bar and walked toward the lobby. Immediately afterwards, Donahue saw another bar patron, Adrian Spaargaren, leave the bar in the same direction as the victim.

When Donahue heard yelling a short time later, he went toward the lobby. There, Donahue saw a well-dressed African-American man, wearing a brown knee-length coat, walk by. At the same time, Spaargaren came out of another hallway and told Donahue to get the man’s license plate number. Donahue followed the man out the motel’s front door.

Donahue stated that defendant got into the driver’s side of a car parked outside the motel. A heavy-set African-American woman wearing a red coat was sitting on the passenger side. As defendant pulled away, Donahue noticed that there were no front license plates on the car, but the back license plate read “CBK 908.” When Donahue returned to the lobby, the victim was sitting in a chair. Donahue tried to put pressure on the abdominal wound until the police and an ambulance arrived a short time later.

The next day, Donahue went to the police station to view a lineup. He tentatively identified defendant as the man he saw leaving the motel the night before. The police then took Donahue to a parking lot filled with cars and asked if he could point out the car he saw the man driving. Donahue positively identified Marion’s car. At trial, Donahue testified that defendant was the man he picked out of the lineup, but he was not sure if he was the man he saw at the motel.

Spaargaren, a 45-year-old factory worker, testified that he was at the Midway Motor Inn on the evening of January 23, 1989. He arrived at 8 p.m. and had five drinks, but felt fine. Spaargaren stated that the victim arrived at the bar around 11 p.m., stayed 15 minutes, had one drink, and then left. A few minutes later, Spaargaren left, walked through the lobby, and into the hallway leading to the motel’s side door. There, he saw the victim leaning against the wall, bent over, holding his stomach.

Spaargaren saw a well-dressed African-American man, whom he identified as defendant, standing next to the victim, talking to him. Defendant was wearing a long brown trench coat. Thinking that the victim was having a heart attack, Spaargaren asked defendant if the victim was okay. When defendant looked at Spaargaren without saying anything, Spaargaren became suspicious and told defendant to get away from the victim. Defendant, who was searching the victim’s clothes, snapped, “Get the fuck out of my way.”

As defendant walked away, the victim fell to his knees. Defendant, who had his hands in his pocket, passed within two feet of Spaargaren. Spaargaren yelled to Donahue to get defendant’s license plates, then helped the victim to a chair. The next day, Spaargaren identified defendant in a lineup.

Andrew Kacprowski, who was working at the motel’s front desk between 10 p.m. and 2 a.m. on the night of the stabbing, testified that defendant came into the motel that night and asked for the washroom. Kacprowski stated that defendant was well-dressed and was wearing a full-length cashmere coat. Five minutes later, defendant returned from the washroom and asked Kacprowski where the telephones were located. Kacprowski directed defendant.

About 10 to 15 minutes later, Spaargaren told Kacprowski to call the police because there was a fight. When Kacprowski went to the lobby, he saw defendant casually walk from the hallway and out the door. The victim, who was holding his stomach, walked out of the hallway. The next day, Kacprowski identified defendant in a lineup.

Patricia McLaughlin, who was the front desk clerk at the time of the stabbing, testified that defendant came in the front entrance and asked for the restroom. Shortly afterwards, he walked by the front desk and toward the phones. The remainder of McLaughlin’s testimony was substantially the same as Kacprowski’s, including that she identified defendant in a lineup the next day.

Detective James Brennan, a Chicago police officer, testified that he and his partner, Detective Thomas Brankin, investigated the stabbing. When Brennan arrived at the Midway Motor Inn, he interviewed witnesses and investigated the scene, but found no evidence. He got the license plate number from the motel manager and traced it to Patricia Marion of 4733 West Congress Street in Chicago. After questioning Marion, the officers went to 73rd and Winchester Streets, where defendant lived. About 20 minutes later, they saw defendant come out of the building and arrested him.

The next day, Detective Brankin supervised the lineup. He testified that four witnesses, who did not confer with the others during their viewing, independently identified defendant.

Grazina Smith, the victim’s daughter, testified that her father, who lived in Belleville, Illinois, was visiting her on January 23, 1989. After dinner and two drinks, the victim left his daughter’s house between 10:15 and 10:30 p.m. to return to the Midway Motor Inn, where he was staying with his sister. After the stabbing, the victim was in the hospital for six weeks until he died on March 6, 1989.

After her father died, Smith received his personal belongings from the hospital and the motel. His watch, which he was wearing when he left her house on January 23, 1989, was missing.

Dr. Robert Aki, who was the trauma surgeon on duty when the victim was brought into Christ Hospital’s emergency room, testified that the victim had a stab wound that penetrated his colon and liver, causing extensive bleeding. In Dr. Aki’s opinion, the victim would have bled to death shortly after the stabbing without the immediate operation. Dr. Aki operated several more times as a result of an infection that was disintegrating the victim’s abdominal wall.

Dr. Margarita Arruza, who performed the autopsy, testified that victim had a large abdominal wound that had been operated on several times. The stab wound went through the victim’s liver and colon. In Dr. Arruza’s opinion, death was caused by the stab wound.

On appeal, defendant asserts that the trial court erred in denying his motion in limine to preclude the State from offering evidence of other crimes. Defendant complained of Spaargaren’s testimony that he saw defendant going through the victim’s pockets. In response, the Státe asserts that the evidence of defendant going through the victim’s pockets was part of the res gestae of the crime and was admissible to establish a motive, which was attempted robbery so that defendant could get more cocaine.

Evidence of other crimes is" inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821; People v. Lopez (1992), 228 Ill. App. 3d 1061, 1078, 593 N.E.2d 647.) If, however, other crimes evidence is relevant to motive, it is admissible. (McKibbins, 96 Ill. 2d at 182; Lopez, 228 Ill. App. 3d at 1078.) Furthermore, it is within the sound discretion of the trial court to determine whether the probative value of such other crimes evidence outweighs its prejudicial impact. Lopez, 228 Ill. App. 3d at 1078; People v. Brown (1991), 214 Ill. App. 3d 836, 844-45, 574 N.E.2d 190.

The trial court did not err in allowing Spaargaren’s testimony that defendant was searching the victim’s pockets. The evidence, which went to motive, was part of defendant’s continuing course of conduct.

Next, defendant asserts that the trial court violated Supreme Court Rule 412 (134 Ill. 2d R. 412) when it admitted the State’s prejudicial evidence of a missing watch. Defendant contends that the State’s failure to inform the defense prior to trial of a key piece of evidence prejudiced him. The State nevei; mentioned in any of the discovery materials that the victim religiously wore a watch that was not found after the stabbing. Defendant learned of the watch’s existence on the day of trial during the hearing on his motion in limine. Defendant argues that the evidence created the illusion of a robbery or attempted armed robbery that was never charged, thus prejudicing him.

Furthermore, defendant maintains that he was prejudiced when the trial court denied him any opportunity to prepare against the introduction of this evidence. Immediately after overruling his objections to allowing the missing watch’s earlier existence into evidence, the trial court ordered the jury into the courtroom. In addition, defendant insists that the State’s excessive use of the evidence of the missing watch was highly prejudicial.

In response, the State asserts that it was not required to include in its discovery any testimony concerning the watch because it was not recovered and not introduced into evidence. The State contends that Rule 412 requires only that physical evidence, lists of potential witnesses, statements, transcripts, and evidence favorable to defendant are subject to discovery. Since Smith, who testified about the watch, was included as a potential witness in the State’s answer to discovery, the State maintains that defendant was fully informed and free to interview Smith about her prospective testimony.

The purpose of the discovery rule is to provide the defense protection against surprise and unfairness. (People v. Washington (1989), 182 Ill. App. 3d 168, 174, 537 N.E.2d 1354.) Noncompliance with the rules of discovery, however, will not be reversible error absent a showing of prejudice. (Washington, 182 Ill. App. 3d at 174.) The closer the evidence, the stronger is the case for excluding the statement or declaring a mistrial. The strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the willfulness of the State in failing to disclose are also factors which must be considered. (People v. Weaver (1982), 92 Ill. 2d 545, 559, 442 N.E.2d 255.) The judgment of the trial judge is given great weight. A reviewing court will find an abuse of discretion only when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate the prejudice. Weaver, 92 Ill. 2d at 560.

Rule 412 provides that the State must disclose to defense counsel any “tangible objects which the prosecuting attorney intends to use in the hearing or trial.” (134 111. 2d R. 412(a)(v).) Since the watch was not used by the State as tangible evidence during the trial and the State had properly disclosed the name of the potential witness who testified about the watch, the nondisclosure was not improper. Nevertheless, using the nonexistence of a tangible object at trial to prove motive appears to subvert the purpose of the discovery rule. At a minimum, defense counsel should have been allowed time to prepare against the evidence. Even without the evidence of the missing watch, however, evidence of defendant’s guilt was overwhelming. Thus, any discovery error committed was harmless.

Next, defendant asserts that the trial court erred in ordering the jury to disregard a material witness’ direct response to a defense question on cross-examination. Defendant waived this issue. Although he objected at trial, he did not include this issue in his post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.

Next, defendant asserts that the trial court’s actions created a cumulative error. In addition to the asserted errors already discussed, defendant argues that the trial court refused to allow any defense objections and granted all State motions and objections. Defendant maintains that the trial court’s actions sent a prejudicial message to the jury that the State should be given more weight than the defense. A careful reading of the record shows that defendant’s argument is groundless.

Next, defendant asserts that the State did not prove him guilty beyond a reasonable doubt by clear and convincing evidence. Defendant argues that the evidence reveals an unclear, unconvincing, confusing, and fully circumstantial presentation of testimony. We reject this argument because the evidence was sufficient to convict defendant beyond a reasonably doubt of first degree murder.

When a conviction is based solely on circumstantial evidence, it will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) No longer is the State required to exclude every reasonable hypothesis of innocence. People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268; People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

Finally, defendant asserts that the trial court abused its discretion by imposing an excessive sentence. Defendant argues that the trial court decided to sentence him to an extended term before hearing any mitigation evidence.

In response, the State asserts that the trial court properly sentenced defendant within the statutory limits. The State maintains that the trial court did not sentence defendant to an extended term even though it found him to be eligible for an extended term after the aggravation evidence was presented.

The trial court is best situated to tailor a sentence to the needs of the case by balancing the appropriate factors in imposing the sentence. (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473; Lopez, 228 Ill. App. 3d at 1077.) Where the sentence imposed is within the statutory limits, a reviewing court will not exercise its power to reduce the sentence absent a finding that the trial court abused its discretion. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708.

Defendant was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), which carries a sentence of 20 to 60 years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)). The trial court stated that defendant qualified for an extended term after hearing the aggravation evidence, then asked for mitigation. After evidence in mitigation and a statement by defendant, the trial court sentenced defendant to 60 years’ imprisonment, which is within the statutory limits for first degree murder. The trial court commented on defendant’s lack of credibility, demeanor, general moral character, employment, family, habits, and the stimuli which motivated his conduct. Thus, the sentence was not an abuse of discretion.

The circuit court judgment is affirmed.

Affirmed.

TULLY, P.J., and GREIMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    IRWIN COHEN, Plaintiff-Appellant and Counterdefendant-Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Defendant-Appellee and Counterplaintiff-Appellee (Allan J. Ehrlich et al., Counterdefendants).
    First District (3rd Division)
    No. 1 — 92—1490
    Opinion filed June 30, 1993.

      Greenberg, Keele, Lunn & Aronberg, of Chicago (Nathan H. Lichtenstein and David H. Sachs, of counsel), for appellant.
    Francis X. Grossi, Jr., and Timothy A. Wolfe, both of Katten, Muchin & Zavis, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Irwin Cohen, filed this declaratory judgment action seeking determination of rights to a $75,000 certificate of deposit (CD) and the interest accrued, which was held by defendant, Continental Illinois National Bank & Trust Company of Chicago (Bank). On appeal, plaintiff asserts that (1) the trial court erred when it denied his motion for summary judgment and granted defendant’s cross-motion for summary judgment; and (2) defendant improperly froze Mark I, Inc.’s (Mark I’s) prebankruptcy petition debt at $75,000 and applied subsequent payments from the debtor in possession to post-bankruptcy petition debts. We affirm in part and reverse in part.

On July 8, 1983, Mark I entered into a loan and security agreement (Loan Agreement) with defendant Bank whereby defendant agreed to advance money to Mark I on a revolving line of credit. On January 7, 1985, plaintiff, Irwin Cohen, executed a “Collateral Agreement Covering Loans to Third Party” (Collateral Agreement). Pursuant to the Collateral Agreement’s terms, plaintiff deposited a $75,000 CD with defendant to secure Mark I’s debt. Each month through January 7, 1989, defendant forwarded the interest earned on the CD to plaintiff.

On August 21, 1985, Mark I filed a voluntary bankruptcy petition for reorganization under chapter 11 of the Bankruptcy Act. As a debtor in possession, Mark I operated the business during the bankruptcy’s pendency. With the bankruptcy court’s approval, but without plaintiff’s knowledge or approval, defendant and Mark I entered into an agreed order on December 11, 1985, which allowed defendant to make loans to Mark I as debtor in possession.

A relevant part of the agreed order provides:

“(h) Proceeds or payments received by [Continental] with respect to the property of [Mark I] upon which [Continental] had security interests on the date of the petition shall be first applied by [Continental] upon the indebtedness owing by [Mark I] to [Continental] and then, after full payment thereof, to the indebtedness owing by the Debtor in Possession to [Continental] * * * "

Among other provisions, the agreed order (1) provided for the repayment of Mark I’s prebankruptcy petition debt and the use of cash collateral by the debtor in possession during the pendency of the bankruptcy proceedings; "(2) granted the debtor in possession authority to assume all of Mark I’s prepetition debt and to provide defendant with a valid, perfected, and enforceable first priority security interest in, and a lien on, all the assets of Mark I and the debtor in possession in exchange for defendant’s extension of a continuing line of credit to the debtor in possession; and (3) required defendant to apply payments received from the debtor in possession towards Mark I’s outstanding prepetition debt prior to applying any of the debtor in possession’s payments to the post-bankruptcy petition debt.

Pursuant to the agreed order, defendant applied the incoming funds from the debtor in possession to reduce Mark I’s prepetition debt until the amount of principal outstanding was $75,000. Defendant then retained plaintiff’s CD to fully satisfy the prepetition debt. Subsequently, the debtor in possession’s payments were used to reduce Mark I’s post-petition debt.

In November 1988, plaintiff inquired about the status of his CD, which was due to expire on January 7, 1989. Plaintiff insisted that he was entitled to the funds since his obligations under the Collateral Agreement had expired, but defendant refused to release the funds to him. Instead, defendant transferred the funds into a money market account and stopped forwarding any accruing interest to plaintiff.

On August 31, 1989, plaintiff filed an action for declaratory judgment seeking determination of the parties’ rights to the funds. A year later, defendant sent plaintiff a letter stating that it intended to apply all of the funds, plus the accrued interest, to Mark I’s prepetition debt. Plaintiff filed a motion to prohibit such application of the funds, but the motion was denied. Defendant then removed the funds, totaling about $85,000, from plaintiff’s bank account.

It was agreed by the parties that there were no disputed issues of material fact, and both sides moved for summary judgment. Denying plaintiff’s motion, the trial court found that (1) the Collateral Agreement was enforceable as to the prepetition debts of Mark I only; (2) that defendant used plaintiff’s collateral to reduce prepetition debt only; (3) the agreed order did not mandate defendant to reduce the prepetition debt solely from the payments made by the debtor in possession; and (4) defendant was entitled to accrue interest on the collateral amount.

Since the facts of this case are undisputed, the only issue to be resolved by this court is a question of law. There are several areas of agreement between the parties. Both parties agree that Mark I as debtor under the Collateral Agreement and Mark I as debtor in possession under the bankruptcy proceedings are different entities. As such, plaintiff is not obligated to pay the debtor in possession’s post-petition debts. In addition, defendant was not limited to reducing the prepetition debts only from the debtor in possession’s payments.

Thus, the main issue on appeal is whether defendant improperly froze Mark I’s prepetition debt at $75,000 without seizing the $75,000 CD before using the debtor in possession’s payments to reduce its post-petition debt.

Plaintiff’s argument on appeal can be summarized as follows. Plaintiff asserts that defendant must return his collateral funds because defendant’s manipulation of the prepetition and post-petition account balances was in bad faith and violated the terms of the bankruptcy court’s agreed order. Plaintiff stresses that defendant created an artificial prepetition balance of exactly $75,000, froze that balance, and then applied the funds received from the debtor in possession to its post-petition debt. Years later, plaintiff’s funds were seized and applied to the outstanding prepetition debt. Plaintiff concludes that the manipulation of Mark I’s prepetition and post-petition debts was a scheme to improperly maintain control of the funds as collateral for the debtor in possession’s post-petition debt.

Furthermore, plaintiff contends that this application of funds violated the bankruptcy court’s agreed order. If the funds had been applied as the agreed order provided, plaintiff argues, the prepetition debt would have been paid in full and plaintiff’s obligations under the Collateral Agreement would have been terminated.

In response, defendant asserts that it simply invoked the rights plaintiff granted it under the Collateral Agreement, which clearly and unambiguously specifies that defendant could resort to plaintiff’s collateral for payment of any of Mark I’s liabilities even without Mark I’s default. Defendant stresses that it used plaintiff’s collateral only to reduce Mark I’s prepetition debt, not obligations arising from post-petition credit extensions to the debtor in possession.

Furthermore, defendant maintains that plaintiff misinterprets the bankruptcy court’s agreed order, which directed the debtor in possession’s use of cash collateral and governed the application of its payments to defendant. It specifies how payments for the debtor in possession were to be used in debt reduction, not that defendant was obligated to reduce Mark I’s prepetition debt exclusively from the debtor in possession’s payments. Moreover, defendant argues that it did not refer, relate to, or directly affect sums procured from sources other than the debtor in possession. Defendant indicates that the agreed order explicitly recognizes “the Bank’s existing rights and interest in and to the PrePetition Collateral” and “grants to the Bank a valid, perfected enforceable first priority security interest in and lien upon *** Pre-Petition Collateral.”

Moreover, defendant argues, even if plaintiff’s interpretation of the agreed order were accepted, his reliance on it is misplaced because the bankruptcy court has no jurisdiction to alter contractual rights between two nondebtors.

The Collateral Agreement, not the bankruptcy court’s agreed order, controls the rights and liabilities of the parties in this appeal. A guarantor’s liability is determined from the guarantee contract, which is interpreted by the general principles of contract' construction. (Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183, 185, 450 N.E.2d 347.) Even where there are broad statements of guarantor liability, an unambiguous contract must be enforced as written. Du Quoin State Bank, 115 Ill. App. 3d at 185.

The meaning of a guaranty agreement is a matter of law to be determined by the court. (Exchange National Bank v. Bergman (1987), 153 Ill. App. 3d 470, 472, 505 N.E.2d 1236.) The bankruptcy court, however, does not have jurisdiction to alter the contractual rights created by the original Collateral Agreement. Guaranty agreements are strictly construed in favor of the guarantor, who is to be accorded the benefit of any doubt that may arise from the contract language. (Exchange National Bank, 153 Ill. App. 3d at 473.) A guarantor is not liable for anything to which he did not agree. Specifically, the guarantor is not responsible for any post-petition debt incurred by the debtor in possession in a bankruptcy proceeding. (Bank of New England, N.A. v. Klein (S.D. Tex. 1988), 86 Bankr. 897, 899.) If the creditor and principal have entered into an agreement materially different from that contemplated by the instrument of guaranty, the guarantor will be released. Exchange National Bank, 153 Ill. App. 3d at 473.

The Collateral Agreement provides:

“[Plaintiff] agree(s) with [defendant] that, to secure the payment of all obligations of [Mark I] or [plaintiff] (or any of them) to [defendant], howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or hereafter existing, or due or to become due (hereinafter called the ‘Liabilities’), [plaintiff] hereby assign(s) to [defendant], and agree(s) that [defendant] shall have a lien upon and security interest in, all interest of [plaintiff], whether now existing or hereafter arising, in CINE Certificate of Deposit in the amount of $75,000.00 C/D# 09 — 518621 in the name of Irwin Cohen evidencing deposits in Continental Illinois National Bank & Trust Company of Chicago and any certificates of deposit or other property which may from time to time be acquired directly or indirectly using the proceeds of such property (all hereinafter called ‘Collateral’).
[Defendant] may from time to time, whether before or after any of the Liabilities shall become due and payable, without notice to [plaintiff] (or any of them), take all or any of the following actions: (a) obtain a security interest in any property, in addition to the Collateral, to secure any of the Liabilities, (b) obtain the primary or secondary liability of any party or parties, in addition to [Mark I] or [plaintiff] (or any of them) with respect to any of the Liabilities, (c) extend or renew for any period (whether or not longer than the original period) or exchange any of the Liabilities or release or compromise any obligation of any nature of any party with respect thereto, (d) surrender, release or exchange all or any part of any property, in addition to the Collateral, securing any of the Liabilities, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect to any such property, and (e) resort to the Collateral for payment of any of the Liabilities whether or not it shall have resorted to any other property securing the Liabilities or shall have proceeded against any party primarily or secondarily liable on any of the Liabilities.
[Plaintiff] hereby waive(s) notice of the existence or creation of all or any of the Liabilities, and agree(s) that no action of [defendant] permitted hereunder shall impair or affect the rights of [defendant] and to the Collateral.”

This Collateral Agreement gives defendant the right to use plaintiff’s collateral funds to repay any of Mark I’s prepetition debts. Since defendant used the CD to repay the outstanding $75,000 balance of prepetition debt, the trial court did not err in granting summary judgment to defendant.

The agreed order stated how payments from the debtor in possession were to be used to reduce the debt. However, the agreed order does not direct the defendant Bank to reduce Mark I’s prepetition debt exclusively from the debtor in possession’s payments. Defendant was free to reduce Mark I’s prepetition debt from plaintiff’s certificate of deposit and to pay Mark I’s remaining pre- and post-petition debts according to the terms of the Agreed Order.

Next, plaintiff asserts that defendant had no right to deprive him of the interest accrued on the funds deposited at defendant bank. Plaintiff argues that the Collateral Agreement was silent as to any interest earned. Since the parties did not specifically state that interest was included in the description of the collateral, plaintiff maintains that this silence should be construed in his favor. Without an express inclusion, plaintiff concludes that the trial court erred when it inferred defendant’s right to interest on the CD.

Where there is no ambiguity, the contract language alone establishes the intention of the parties. (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) Pursuant to the Collateral Agreement, defendant was not entitled to any interest from the CD. Even if it were entitled to seize the CD and the accrued interest to satisfy the prepetition debts to Mark I, the prepetition debt was only $75,000 when the funds from the CD were seized. Thus, any funds in excess of $75,000 could only have been applied to the debtor in possession’s post-petition debts, which were not covered by the Collateral Agreement. Consequently, the trial court erred in not requiring the interest seized by defendant to be returned to plaintiff.

Based on the foregoing, the circuit court summary judgment granting the $75,000 CD to defendant is affirmed. The circuit court summary judgment granting the CD’s interest to defendant is reversed. Accordingly, the interest accrued on the CD is to be given to plaintiff.

Affirmed in part; reversed in part.

TULLY, P.J., and RIZZI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO DUPLESSIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 92—2083
    Opinion filed June 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Martin P. Head, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

On December 29, 1989, defendant, Mario Duplessis, pleaded guilty to the criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 13(a)(3)) of his daughter and was sentenced to 48 months’ probation. Five months later, the State filed a petition for violation of defendant’s probation based on allegations that defendant sexually abused two daughters on January 12, 1990, and April 12, 1990. After a hearing, defendant was found in violation of his probation. The probation was revoked and a term of 10 years’ imprisonment was imposed.

On appeal, defendant asserts that (1) the State did not properly prove the allegations of the probation revocation; (2) the trial court improperly sentenced him for the crimes involved in the violation of probation rather than on the original crime; (3) the trial court erred in admitting hearsay; and (4) the trial court erred in excluding certain people from the hearing. We affirm.

At trial, V.D., who is defendant’s daughter, testified that she was 14 years old in April 1990. At that time, she was living in her father’s Hickory Hills apartment with her mother, three older sisters, younger brother, and younger sister. Defendant was not living in the apartment at that time.

V.D. stated that she had stayed home sick from school sometime between April 12, 1990, and April 15, 1990. About 8:30 a.m. on that day, V.D. was in the front room and her older sister, Annette, was getting ready for school. No one else was at home. Unexpectedly, defendant came into the apartment using his own key. After speaking to V.D., defendant went to Annette’s bedroom and asked her if she intended to go to school. Annette responded that she was leaving shortly. Soon after, Annette left for school, leaving defendant and V.D. alone in the front room.

According to V.D., she was watching television when her father sat on the couch next to her. V.D. moved away from him, but he moved closer, picked up V.D.’s bra, and touched her breast. Defendant continued to fondle V.D.’s breasts and said that he wanted to have a child with her. V.D. stated that she just sat there, not knowing what to do.

Defendant then put his hand down V.D.’s pants and touched her vagina, eventually putting his finger inside her vagina and rubbing. V.D. did not remember if defendant said anything during those few minutes.

V.D. further testified that defendant removed his penis from his pants and told her to perform oral sex on him. When she refused, defendant began to masturbate. Then, he lay on top of her and attempted to have intercourse. His penis touched her vagina, but there was no penetration. V.D. told defendant that he was crazy because he was on probation for her younger sister. According to V.D., defendant replied that he had gotten away with that.

V.D. stated that she ran away and went to a nearby gas station where she remained until later that day. Before V.D. ran out of the apartment, defendant told her that he would hurt her sisters and kill her if she told anyone.

V.D. acknowledged that she did not tell anyone about the incident until 12:30 a.m. on May 7, 1990, when she told her mother and two older sisters, Annette and Ms. D (whose initials are also V.D.). V.D. stated that she did not say anything right away because of her father’s threats, which she believed since she had previously seen her father hit her sisters.

Annette Duplessis, 22 years old, testified regarding the day between April 12, 1990, and April 15, 1990, when her father came into their apartment and asked her if she were going to school. Annette stated that she told him that she was late. When she left for school, V.D. and defendant were alone in the apartment.

Annette also testified that in May 1990, V.D. told her, her mother, and her sister about the incident. Over defense counsel’s hearsay objection, Annette testified that V.D. told her that their “father had been molesting her, that he was doing that stuff to her, touching her, and you know.”

Ms. D., 20 years old, testified that on May 7, 1990, she was with V.D., Annette, and her mother in their Hickory Hills apartment. Over defendant’s objection, Ms. D. related the conversation during which V.D. said that their father “had been repeatedly molesting her.” Upon hearing V.D.’s disclosure, Ms. D. told her mother and two sisters that defendant had also molested her once in January.

Ms. D. testified that her father was living with the family in January 1990, which was less than one month after he was placed on probation. She was 18 years old at the time. One day in early January 1990, Ms. D. was home alone with defendant. She was sleeping on the couch in the front room. When she awoke, defendant was over her with his hand in her pants, touching her vagina. Defendant immediately took his hand out and ran away. When he returned a few minutes later, he was crying and said that it would never happen again.

Ms. D. stated that she did not tell anyone about the incident until May 7, 1990, because the family had just gone through one ordeal involving defendant. Since defendant had said that it would not happen again, she felt that the incident did not warrant calling the police. She became concerned, however, when she heard about the incident with V.D.

Defendant testified that he lived with his two oldest daughters in the Hickory Hills apartment in January 1990 while his ex-wife and other children lived in Chicago. According to defendant, his ex-wife called him in early January 1990 to tell him that someone had broken into her apartment and molested V.D. while she was home alone. Defendant’s ex-wife also asked if their daughter, Laura, could live with him because she wanted to go to her old school. Defendant agreed and Laura soon after moved in with defendant.

Defendant stated that his ex-wife and children arrived at his apartment and informed him that they were moving in because V.D. was afraid that the man who molested her would return. Defendant and his ex-wife argued about the move, but his ex-wife threatened to place him in jail with one phone call if he did not do what she said. When defendant’s ex-wife refused to move out, defendant left and stayed with a friend.

Defendant admitted that he went to his apartment one morning around 9:30 or 9:40 a.m. in April 1990 to pick up his mail. He did not expect anyone at home since he assumed the children were at school and his ex-wife was at work. When he entered the apartment, defendant saw his daughters, Laura and V.D., in the front room. Defendant stated that he became upset because they should have been in school. Defendant told his daughters to clean up the house, but they ignored him. After about five minutes, defendant asked Laura to vacuum the carpets and left.

In addition, defendant denied that he had molested Ms. D. in January 1990. He stated that his daughters told the stories because his ex-wife made them tell the stories for revenge.

Upon reviewing the evidence, the trial court found defendant in violation of his probation by a preponderance of the evidence. At the subsequent sentencing hearing, the trial court sentenced defendant to 10 years’ imprisonment.

On appeal, defendant asserts that the trial court erred in revoking his probation because the complainants’ delay in reporting his misconduct precludes a finding of a violation of probation by a preponderance of the evidence. To support his argument that a victim’s testimony is insufficient if there is no immediate outcry, defendant relies on People v. Karmenzind (1991), 220 Ill. App. 3d 167, 580 N.E.2d 909, which is inapplicable. The Karmenzind court ruled that the defendant was not guilty of criminal sexual assault of his son because the son, who was between two and four years old at the time of the alleged assault, gave conflicting testimony, did not report the incident until one to three years later, and was unable to identify his father in court. (Karmenzind, 220 Ill. App. 3d at 169-75.) In addition, the court found that his testimony was uncorroborated except for various accounts of his story to other people and the medical tests had established that there was no injury or scarring in the victim’s rectal area. Karmenzind, 220 Ill. App. 3d at 175-76.

In response, the State asserts that it proved that defendant violated his probation because the two victims’ detailed testimony was clear and defendant admitted that he had been in the apartment on that day. Furthermore, the State contends that it was reasonable for V.D. not to report the molestation until three weeks after the incident because she believed defendant’s threats. Defendant still had a key to the apartment and V.D. had previously seen him hit her sisters. In addition, the State maintains that Ms. D.’s four-month delay in complaining about the molestation was reasonable because the family had recently gone through legal proceedings where defendant pleaded guilty to molesting Ms. D.’s youngest sister and defendant came back to Ms. D. crying, saying that it would never happen again.

To support its argument that any delay in making a complaint goes to the weight of the evidence and to the credibility of the witness, the State relies on People v. Foley (1990), 206 Ill. App. 3d 709, 565 N.E.2d 39. In Foley, the court held that a complainant’s testimony cannot be rejected merely because she did not tell anyone about the sexual abuse for 10 or 11 months. Foley, 206 Ill. App. 3d at 716.

Although a failure to speak when it is natural to do so under the circumstances discredits the credibility of the claimant and may amount in effect to an assertion of the nonexistence of that fact (People v. King (1973), 10 Ill. App. 3d 652, 655, 295 N.E.2d 258), a delay in reporting incidents of sexual abuse may be reasonable where the victim’s silence can be attributed to fear of the offender or to shame, guilt, and embarrassment. (Foley, 206 Ill. App. 3d at 716.) In sexual assault cases involving family relationships, the victim’s credibility is not lessened if there is no immediate outcry. Furthermore, determinations of credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. (People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889.) Where the findings of fact must be determined from the credibility of the witnesses, a reviewing court will defer to those findings unless they are against the manifest weight of the evidence. People v. Whitfield (1986), 147 Ill. App. 3d 675, 679, 498 N.E.2d 262.

The State then urges this court to apply the sufficiency of the evidence test that was applied in People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690, to violation of probation hearings. Prior to Schott, the standard of review for a sex crime victim’s testimony was that it was insufficient to sustain a conviction if the testimony was not clear and convincing or substantially corroborated. (Schott, 145 Ill. 2d at 202.) The Illinois Supreme Court in Schott, however, adopted the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267. Thus, the State contends that the test to be used to review a violation of probation hearing should be whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime by a preponderance of the evidence. We disagree.

Currently, the State must prove a violation of probation by a preponderance of the evidence. (People v. Cooper (1977), 66 Ill. 2d 509, 514, 363 N.E.2d 817.) To reverse a trial court’s ruling of a violation of probation, the reviewing court must find that the ruling was against the manifest weight of the evidence. (People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721; People v. Leigh (1976), 45 Ill. App. 3d 563, 565, 359 N.E.2d 1059.) Since this standard does not contradict the Schott ruling, there is no reason to change the standard of review for violation of probation rulings.

In light of the evidence presented and the applicable principles of review, we find that the trial court’s ruling was not against the manifest weight of the evidence. Thus, we affirm the trial court’s finding that defendant violated his probation by a preponderance of the evidence.

Next, defendant asserts that the trial court improperly sentenced him. Defendant maintains that the judge, who was not the same judge who accepted his original guilty plea and sentenced him to probation, based the sentence on the crimes used in the violation of probation instead of the crime for which he had originally been convicted.

Although the sentence imposed following a revocation of probation must be for the original offense, the trial court may take into account the defendant’s conduct during probation to assess his rehabilitation potential. (People v. Young (1985), 138 Ill. App. 3d 130, 134-35, 485 N.E.2d 443.) The record should show that the trial court (1) considered the evidence received during the original trial; (2) considered any presentence reports; (3) considered evidence and information in aggravation and mitigation; (4) heard arguments regarding sentencing alternatives; and (5) afforded the defendant the opportunity to speak in his own behalf. People v. Gaurige (1988), 168 Ill. App. 3d 855, 869, 522 N.E.2d 1306.

The record indicates that the trial court was adequately apprised of the facts of the first crime. The trial court also clearly stated three times that it was sentencing defendant for the original crime, not the two charges that were the subject of the violation of probation hearing. The trial court stated:

“Well, the sentencing in this case rises independently of the other two cases.
* * *
I have considered the VOP allegations here and made findings on them. The fact of the matter is that the Defendant has also had an investigative report done in which I have considered. Further as an indication here there was a 402 Conference held pursuant to the other two cases that were involved in this case, but they are separate and distinct from the finding of guilty on the sentence in this case and I want the Defendant to understand that that in effect is different than the cases before us herein which there was a hearing and finding. Do you understand, Mr. Duplessis?”

After defendant indicated that he understood, the trial court allowed him to make a statement, during which he denied the allegations. The trial court then sentenced him to 10 years’ imprisonment. We find that this sentence was clearly for the crime for which he had originally been convicted.

Next, defendant asserts that the trial court erred in allowing hearsay testimony of V.D.’s out-of-court disclosures. The State argues that this issue was waived because defendant did not file a post-hearing motion. Defendant contends that a post-hearing motion after a revocation of probation hearing is unnecessary to preserve an issue for review unless it is required by statute. We agree.

After considering the conflicting case law regarding whether a post-hearing motion is needed to preserve for review an issue in a violation of probation hearing (see generally People v. Acevedo (1991), 216 Ill. App. 3d 195, 576 N.E.2d 949; In re W.D. (1990), 194 Ill. App. 3d 686, 551 N.E.2d 357; People v. Thomas (1990), 193 Ill. App. 3d 525, 550 N.E.2d 29; In re C.L. (1989), 180 Ill. App. 3d 173, 534 N.E.2d 1330; People v. Hargis (1983), 118 Ill. App. 3d 1064, 456 N.E.2d 250), we find that defendant did not waive his argument since there is no statutory requirement under the revocation of probation provisions in the Unified Code of Corrections. Ill. Rev. Stat. 1989, ch. 38, par. 1005-6-4.

Generally, a witness’ testimony cannot be bolstered with proof of the witness’ out-of-court statements. (People v. Baggett (1989), 185 Ill. App. 3d 1007, 1015, 541 N.E.2d 1266.) In sexual assault cases, however, the complainant can show that she made a prompt complaint of the incident. (People v. Gray (1991), 209 Ill. App. 3d 407, 417, 568 N.E.2d 219.) Since the sole purpose of the exception is to rebut any presumption that might arise from the complainant’s silence, only the fact of the complaint is admissible, not the details of the complaint or the identity of the named perpetrator. Gray, 209 Ill. App. 3d at 417.

We agree with defendant that V.D., Annette, and Ms. D were improperly permitted to testify to V.D.’s out-of-court statements made three weeks after the incident. Although it was permissible under the prompt complaint exception to allow into evidence the fact that V.D. made a complaint three weeks after the incident, the substance of the complaint was not admissible. We, however, find the error harmless. After considering the totality of the evidence presented, we can safely conclude that a hearing without this error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.

Finally, defendant asserts that the trial court erred in closing part of the proceedings to those people it determined did not have a direct interest in the proceedings. We disagree.

Although there is a presumption that all trials are to be open to the public, that presumption may be overcome if the party seeking to close the'hearing advances an overriding interest that is likely to be prejudiced if the hearing is not closed, the closure is not broader than is necessary to protect that interest, the trial court considers reasonable alternatives to closing the proceeding, and the trial court makes findings adequate to support the closure. Waller v. Georgia (1984), 467 U.S. 39, 48, 81 L. Ed. 2d 31, 39, 104 S. Ct. 2210, 2216; Press-Enterprise Co. v. Superior Court of California (1984), 464 U.S. 501, 508. 78 L. Ed. 2d 629. 637. 104 S. Ct. 819, 823.

Prior to the hearing, the State sought to close the hearing by advancing an overriding interest that was likely to be prejudiced. Relying on section 115 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 11), the State discussed the interest of the sexual crime victims under the age of 18 who would be testifying. Section 115 — 11 states that, in a criminal prosecution for certain sexual offenses,

“where the alleged victim of the offense is a minor'under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 11.

The trial court then asked each challenged person what his or her interest was in the case. After the inquiry, the trial court excluded two of defendant’s relatives, his fiancee, and his associates from church. Everyone was allowed back into the courtroom after the victims testified.

Since the physical and psychological well-being of a minor testifying in a rape case is a compelling interest (People v. Morgan (1987), 152 Ill. App. 3d 97, 102, 504 N.E.2d 172) and section 115-11 is constitutional (People v. Priola (1990), 203 Ill. App. 3d 401, 419, 561 N.E.2d 82), the trial court properly excluded those persons it determined did not have a direct interest in the case. We do not find that there was an abuse of discretion.

Based on the foregoing, we affirm the circuit court’s judgment revoking defendant’s probation. We also affirm defendant’s sentence.

Affirmed.

RIZZI and GREIMAN, JJ., concur.