text:
    C. RICHARD DAHL et al., Plaintiffs-Appellants, v. FEDERAL LAND BANK ASSOCIATION OF WESTERN ILLINOIS, f/k/a Federal Land Bank Association of Monmouth, et al., Defendants-Appellees.
    Third District
    No. 3—90—0075
    Opinion filed May 8, 1991.
    Rehearing denied June 20, 1991.

      Law Offices of John H. Bisbee, of Macomb (John H. Bisbee, of counsel), for appellants.
    Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (David J. Dubicki, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

This case is before the court on the pleadings. Plaintiffs C. Richard Dahl and Kathlene Dahl commenced their cause of action September 28, 1988. Following removal of the cause of action to the Federal court and remand back to the circuit court, the defendants moved to dismiss plaintiffs’ first amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2-615, 2-619).

The first amended complaint consisted of three counts: breach of contract, intentional infliction of emotional • harm, and duress. The defendants, Federal Land Bank Association of Western Illinois (Federal Land IBank), Farm Credit Bank of St. Louis (Farm Credit Bank), and Central Production Credit Association (Central), filed motions to dismiss. Defendants Federal Land Bank and Farm Credit Bank asserted that the breach of contract action was barred by release. Defendant Central asserted that the plaintiffs had settled any breach of contract claim with Central. All defendants asserted that plaintiffs’ settlements with them were voluntary as a matter of law, and that the plaintiffs by their conduct had ratified the settlement agreements and waived any right to sue. The defendants took the position that any claim for intentional infliction of emotional harm was barred by the applicable statute of limitations. They further noted that Illinois does not recognize a cause of action for duress, and that since these plaintiffs had legal remedies available to them with regard to the transactions complained of, duress should not be available to plaintiffs even if it were recognized as a cause of action in this State. The trial court considered the first amended complaint, the motions, affidavits, counteraffidavits, and memoranda, and, following a hearing, issued a memorandum opinion on December 14, 1989, followed by an order dated December 26, 1989, granting the defendants’ motions pursuant to section 2 — 619 of the Code of Civil Procedure and dismissing the first amended complaint as to each of the defendants with prejudice.

A section 2 — 619 motion to dismiss admits, for the purpose of the motion, the facts well pleaded in the complaint. (Higgins v. Kleronomos (1984), 121 Ill. App. 3d 316, 459 N.E.2d 1048.) A defendant in support of its motion is permitted to assert by affidavit those matters showing that a claim has been released or satisfied or barred by other affirmative matter. Insofar as affidavits filed on behalf of defendants’ motions to dismiss pursuant to section 2 — 619 establish documents that are part of the transactions complained of in the complaint, we find those affidavits to be proper for the court’s consideration.

The facts of this dispute are as follows. In 1985, the plaintiffs were engaged in farming and, prior to that time, had obtained credit either from or through all of the defendants herein. The plaintiffs owned several parcels of farmland in April 1985. Three of those parcels were separately mortgaged, ...ecuring separate debts owed by the plaintiffs to Farm Credit Bank. The plaintiffs had missed the annual payments on two of those parcels, one in November 1984 and one in March 1985. In addition to those debts, the plaintiffs at that time owed a large sum of money to Central. In April 1985, fearing he would not be able to make the annual payment on the third parcel (which would be due in June 1985), Mr. Dahl met with representatives of Federal Land Bank and Central to try to work out a payment plan so that the plaintiffs could continue farming while they paid their debts. As a result of that meeting, it was agreed that if the plaintiffs executed a supplemental mortgage on all three parcels and on an additional 22-acre parcel they owned, and made certain payments to Farm Credit Bank and Central, then the defendants would forbear pursuing legal remedies available to them to collect the debts owed them and would accept the payments made in accordance with the payment plans to satisfy the debts. The plaintiffs executed the supplemental mortgage which was then duly recorded. The plaintiffs also made payments in accordance with the payment plans.

In June 1985, Central informed the plaintiffs that it was setting a due date of September 15, 1985, after which date it would institute legal action against the plaintiffs if the debt owed Central were not paid in full. This was in direct contravention to the terms of the April 1985 agreement, which permitted the plaintiffs to repay Central in five annual installments, the first installment being due before November 15, 1985. Central made repeated demands that it be paid by September 15, and demanded that the plaintiffs sell items pledged as collateral in order to help raise the necessary money. As a result of these repeated demands, Mr. Dahl became severely distressed and upset, lost 100 pounds, became ill and confused, and over the summer and fall of 1985 lost much of the use of his legs. He did manage to pay most of the debt that was due to Central, but not all of it, by September 15, 1985. Central continued to pursue the matter, and Mr. Dahl continued to suffer, after that date. In early December, Mr. Dahl was told by Philip Bell, an officer of Central, that Mr. Dahl would need to have an attorney draw up a “consideration binder” in order for the plaintiffs and Central to settle the remaining debt. Mr. Dahl contacted an attorney in December, seeking the attorney’s assistance in settling the matter with Central to “get them off his back.” An agreement was worked out and executed before the end of January 1986, whereby Central released plaintiffs from liability on their loan in exchange for a sum of money, an automobile, and a baler.

On or about December 31, 1985, Robert Young, an officer of Fed: eral Land Bank, telephoned Dahl and informed him that Young was about to take legal action to put the plaintiffs “out in the road” unless plaintiffs deeded two of the three parcels to the Farm Credit Bank. This was in contravention to the April 1985 agreement, whereby the Federal Land Bank (acting to collect the debt owed to the Farm Credit Bank) agreed to a payment plan whereby plaintiffs would have a five-year period to pay back the overdue payments while still paying the regular annual payments on the three parcels as they became due. Young repeatedly telephoned Dahl over the next few months, all while Dahl was suffering from the illness already described. On or about March 16, 1986, the plaintiffs deeded two of the three principal parcels to Farm Credit Bank, and executed a new mortgage on the third parcel to secure debt on that parcel plus the arrearage on the other parcels. In return for the two parcels, Farm Credit Bank released plaintiffs of the indebtedness remaining on those two parcels. Plaintiffs made the payments on the new mortgage for at least three years subsequent to its making.

We first address the propriety of the trial court’s dismissal of the first count of the first amended complaint, viz., for breach of contract. The plaintiffs seek contract damages for the defendants’ breach of their duty of “good faith and fair dealing” as regards the April 1985 agreement. The plaintiffs by their conduct have, in our view, foreclosed their right to such recovery. With respect to defendants Federal Land Bank and Farm Credit Bank, the trial court correctly determined that the release executed by the plaintiffs in March 1986 as part of the “Agreement for Deed in Lieu of Foreclosure and Reduction and Reamortization of Loan” effectively barred the claim for breach of contract in connection with that agreement. Plaintiffs will not be permitted to simultaneously treat that entire transaction as having been in breach of the earlier contract, to accept the benefits it bestowed on them, and to reject its release provisions. Assuming the relevant defendants had procured plaintiffs’ agreement to the terms of that transaction by duress, such duress would not aid the plaintiffs in their breach of contract claim because the plaintiffs have never sought, nor do they now seek, to have that transaction set aside.

With respect to the breach of contract claim against defendant Central, plaintiffs similarly do not seek to avoid the agreement of January 1986, and therefore are bound by it. The Dahls allege they were damaged as a result of the conveyance of certain assets to Central in settlement of Central’s claim. Although a detailed release comparable to that given the Farm Credit Bank was not given Central, the Dahls settled any claim they had against Central with regard to the conveyance of their assets to Central. This is shown by attorney Grimsley’s letter of December 30, 1985, to Philip Bell of Central. The letter is an offer of settlement and provides in pertinent part:

“As we have discussed, my clients believe that they have a legitimate defense against any continued claim made against them by the Production Credit Association, and have received such advise [sic] from competent counsel.
We would, that fact notwithstanding, offer to settle the debt with the Production Credit Association by returning to it, free and clear of claims and demands, the collateral of Production Credit Association that we presently hold, being a check representing the balance of the receipt from the 1985 crop and the automobile the PCA has a security interest in. Accordingly, we hereby tender to PCA this collateral as full and complete satisfaction of my clients’ debt to the PCA.” (Emphasis added.)

Plaintiffs’ offer was accepted and the property conveyed to Central.

Turning now to the second count of the first amended complaint, viz., for intentional infliction of emotional harm, we note that section 13 — 202 of the Code of Civil Procedure provides for a two-year period after the cause of action accrues within which to commence an action for damages for “an injury to the person” (Ill. Rev. Stat. 1987, ch. 110, par. 13—202). In our view, intentional infliction of emotional harm is a species of “injury to the person” and is therefore governed by the limitation period set out in section 13 — 202 of the Code of Civil Procedure. (Accord Feng v. Sandrik (N.D. Ill. 1986), 636 F. Supp. 77.) In this case suit was not commenced until September 1988, clearly more than two years after all the alleged wrongdoing by the defendants would have taken place, and so the circuit court properly held the cause of action stated in the second count of the first amended complaint to be barred by the statute of limitations.

As for the third count of the first amended complaint, plaintiffs urge this court to establish a cause of action for duress. As plaintiffs correctly point out, no Illinois court has to date recognized duress as an independent cause of action giving a right to affirmative relief as opposed to defensive relief. Duress has been available to avoid obligations, but not as an independent cause of action for damages. In the “Introductory Note on Duress and Undue Influence” to sections 174 through 177 of the Restatement (Second) of Contracts, the author of that commentary states:

“Since duress and undue influence, unlike deceit, are not generally of themselves actionable torts, the victim of duress or undue influence is usually limited to avoidance and does not have an affirmative action for damages.” (Restatement (Second) of Contracts, “Introductory Note on Duress & Undue Influence,” at 474 (1981).)

We decline to create a new cause of action urged upon us by plaintiffs.

In summary, the judgment of the circuit court is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MONTE FRANKLIN McCARTHY, Defendant-Appellant.
    Fourth District
    No. 4—90—0720
    Opinion filed May 23, 1991.

      Donald E. Groshong, of Alton, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert. J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant was charged by information with three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(d)) (placing finger in vagina, placing mouth on vagina, touching her breasts), and one count of unlawful delivery of alcohol to a minor (Ill. Rev. Stat. 1987, ch. 43, par. 131(a)). Following a jury trial in Adams County, Illinois, on June 12 through 14, 1990, defendant was convicted on two counts of aggravated criminal sexual abuse and one count of unlawful delivery of alcohol to a minor, but acquitted on the count of placing his mouth on her vagina. Defendant was sentenced to six years in the Department of Corrections for the sex offenses, and it is these convictions he appeals. We affirm.

Defendant, Monte F. McCarthy, was 35 years old at the time of the incident. Defendant began dating the victim’s sister (A.S.) in 1986 after they met while she was waitressing at a restaurant defendant frequently visited. This relationship lasted approximately three years, although defendant admitted having seen her within 10 days of the trial.

The victim (M.S.) in this case was the younger sister of A.S. She was 14 years old at the time of the offenses and resided with her parents in Hamilton, Illinois. M.S. would visit her sister in Quincy for the weekend, and it was on one of these weekend visits that the incidents defendant was convicted of occurred.

On June 11, 1988, defendant, M.S., and A.S. went to Old Tony’s Place in Quincy, Illinois, for dinner. M.S. drank two Tom Collins (an alcoholic drink with gin or vodka) with her dinner. Defendant paid for the dinner and drinks. After dinner, the trio went to a bar, where M.S. consumed at least four more Tom Collins drinks. Defendant also purchased these drinks for M.S.

Later that evening, they went back to A.S.’s apartment. M.S. testified she brushed her teeth, and put on a T-shirt and underpants. A.S. was in the other room watching television at this point.

M.S. testified that sometime after she went to bed, defendant came into the bedroom and got into bed with her. According to M.S., defendant kissed her on the mouth with his tongue. Defendant then pulled up her T-shirt and placed his hand and mouth on her breasts. Defendant proceeded to pull down M.S.’s underpants and placed his mouth on her vagina. M.S. further testified that he placed what she believed to be his finger in her vagina. M.S. testified she told defendant what he was doing hurt, so he stopped, although she had to ask him twice. This incident lasted approximately one hour.

M.S. testified she woke up the next morning at approximately 6:30 a.m. Defendant was in the middle of the bed with M.S. and A.S. on either side of him. They ate a pancake breakfast, which M.S. stated was bought from a restaurant, although she did not know who purchased this food. Defendant and A.S. drove M.S. back to her parents’ house later that day.

On July 29, 1988, M.S. went to St. Louis with A.S. and defendant. Due to a mix-up in reservations, their hotel room only had one bed, rather than two as A.S. had requested. M.S. testified she slept on the couch in the room the first night they spent in St. Louis, but the next night she slept in the bed because her sister had passed out on the couch. M.S. testified she changed into her nightgown and got into bed. Thereafter, defendant, wearing only his underwear, got into bed with her. Defendant took her hand and placed it on his penis. When M.S. pulled away, defendant asked why she was upset now, when she did not mind previously. M.S. testified defendant said to her that he had his penis approximately two inches inside her vagina on the night of June 11, 1988. She stated she had believed it was his finger inside her vagina but in fact defendant told her it was his penis.

Defendant became angry and got out of bed and began dressing. He threw some money at M.S. and stated she and her sister could take a taxi back to Quincy. Defendant also told M.S. she would have to explain his absence to her sister. According to M.S., defendant did not leave the hotel room, but thereafter slept on the floor. The next morning, defendant attempted to get into bed again with M.S., but she got up and awakened her sister. M.S. has not spoken to defendant since that weekend.

The day before M.S. went to St. Louis with her sister and defendant, she obtained a false driver’s license using her sister’s birth certificate and other forms of identification. M.S. testified she obtained this license in order to be admitted into bars and to be allowed to drive. M.S. was approached on July 27, 1988, by two Quincy police officers about this false license. This was when she first related to them the details of the encounter with defendant.

After the police questioned M.S. about this false driver’s license, they taped her statement about the events of June 11, 1988. At this time, M.S. only stated that defendant placed his finger in her vagina. It was not until March 1, 1990, that M.S. told anybody about defendant touching her breasts and placing his mouth on her vagina. M.S. explained she was embarrassed to tell the officers all of what happened, but she later realized she had to tell everything.

Finally, M.S. testified she was angry with defendant because he hurt her and caused a rift between her and her sister. M.S. also stated she was angry with defendant because he had lied about her family. Last, M.S. testified she had not spoken to her sister since early in 1989.

Defendant testified he spent approximately 95% of the time at A.S.’s apartment while they dated. Defendant testified he knew A.S. was now living in St. Louis and worked as a dancer in a night club. Defendant admitted providing alcohol to M.S. on June 11, 1988. However, he denied ever having sexual contact with M.S.

According to defendant, on June 11, 1988, after leaving the second bar, M.S. became physically ill. Defendant stated A.S. attempted to clean M.S. up and calm her down for approximately 20 minutes. Defendant and A.S. talked for approximately one hour in the living room of A.S.’s apartment, and defendant then left. Defendant returned the next morning, after receiving a telephone call from A.S. He picked up pancakes A.S. had ordered from a restaurant and brought them to the apartment, where they all ate breakfast. Defendant and A.S. then drove M.S. to her parents’ home around noon that day. Defendant stated he and A.S. slept in the bed both nights in St. Louis and that M.S. slept on the couch.

The defense called Larry Renfrew, the records keeper for Illinois Bell Telephone Company. He testified that two telephone calls were made from A.S.’s apartment on June 12, 1988, one at approximately 10:12 a.m. to a number ending with the digits 8040 and another at approximately 10:33 a.m. to a number ending with the digits 7008. The parties stipulated the number of the Coach House Restaurant is 223-8040. Defendant testified his number is 222-7008 and has been so for 10 years.

Defendant was sentenced to six years’ incarceration with the Department of Corrections plus fined $1,000 and court costs. Defendant made a motion for a new trial, which was denied prior to the sentencing hearing. Defendant also made a motion for reconsideration of sentence, which was also denied. Defendant then filed this appeal on October 18,1990.

Defendant’s first argument is that the evidence presented was neither clear and convincing nor corroborated and was thus insufficient to support his conviction. Defendant cites several cases for the proposition that where a conviction for a sex offense depends upon the testimony of the complaining witness and the defendant denies the charges, a more stringent burden of proof exists, requiring the conviction be supported by corroboration of the victim’s testimony or evidence that the victim’s testimony is clear and convincing. (People v. Thompson (1990), 198 Ill. App. 3d 417, 555 N.E.2d 1122.) Defendant contends since this case was almost entirely based on the victim’s testimony, which was neither clear and convincing nor corroborated, the evidence was insufficient to support his conviction.

This court has held:

“We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt.” (People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, 742, appeal denied (1990), 135 Ill. 2d 562.)

(See also People v. Roy (1990), 201 Ill. App. 3d 166, 184-85, 558 N.E.2d 1208, 1221, appeal denied (1991), 136 Ill. 2d 552.) There is no legitimate reason to place additional requirements on the victim’s testimony solely because of the nature of the crime. Testimony of no other category of crime victim is held to be automatically suspect or require additional proof beyond the statutory requirements. James, 200 Ill. App. 3d at 394-95, 558 N.E.2d at 742.

Therefore, the evidence must be reviewed pursuant to the same standard applied in every other criminal case. That standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Defendant contends M.S.’s testimony was “so inconsistent, contradictory and confusing that it' was insufficient to support a conviction.” Any shortcomings in a victim’s testimony do not destroy credibility but merely affect the weight to be afforded to the testimony by the trier of fact. (People v. Allison (1983), 115 Ill. App. 3d 1038, 452 N.E.2d 148.) The resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to defendant’s guilt remains. Roy, 201 Ill. App. 3d at 185, 558 N.E.2d at 1221.

It is the jury’s function to determine the credibility of the witnesses. M.S. was on the stand for approximately 3ha hours, during which she was subjected to vigorous cross-examination by defense counsel. The jury also heard defendant testify and deny the incidents. Defendant argues the telephone records establish he did not spend the night at A.S.’s apartment. However, it was within the province of the jury to disbelieve these records. Other circumstances exist to explain the records (i.e., an answering machine answered the call or defendant left the apartment that morning to return home and clean up). Any inconsistencies in her testimony were brought out on cross-examination. Thus, the jury could have disregarded the telephone calls as proof defendant did not sleep at A.S.’s apartment that night.

Defendant argues M.S.’s credibility was affected by the fact she did not report this incident until she was approached by the police regarding her false driver’s license. Defendant implies M.S. concocted this story to shift the police investigation from herself to defendant. Again, this possible motive to fabricate was brought out on both direct and cross-examination. The jury had the prerogative to either believe M.S. or defendant regarding the promptness of the complaint. The evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

Defendant’s second argument is the trial court erred in admitting State’s evidence consisting of four photographs of defendant and M.S. which were taken in March or April 1988 when M.S. was visiting her sister. According to both M.S. and defendant, these photographs depict innocent “clowning around.” M.S. was playing “dress up” with her sister’s clothing and modeled several outfits for her sister and defendant. The pictures show defendant and M.S. in various embraces.

Defendant objected to the admission of these photographs on grounds they were irrelevant and their prejudicial effect outweighed any probative value. Defendant maintains these photographs were used by the State to bolster the victim’s credibility and suggest that defendant was the kind of person who had the propensity to commit these crimes because of his immoral character. The State responds these photographs were admitted for the purpose of showing the relationship and familiarity between defendant and M.S.

The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) Evidence is relevant where the fact or circumstances offered tend to prove or disprove a disputed fact or to render the matter in issue more or less probable. (People v. Smith (1987), 154 Ill. App. 3d 837, 507 N.E.2d 543.) In sex-related offenses, evidence of prior acts between the defendant and the complaining witness is admissible to show the familiar relation of the parties and to corroborate the complaining witness’ testimony as to the act relied upon for conviction. People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121.

Defendant relies on this court’s decision in People v. Holm (1989), 188 Ill. App. 3d 908, 544 N.E.2d 1237, to support his contention that these photographs were improperly admitted into evidence. In Holm, defendant was on trial for aggravated criminal sexual abuse of one of his daughters. The trial court allowed into evidence a series of 18 pictures showing another daughter of defendant in various stages of undress. Both defendant and the daughter in the pictures testified the photographs were taken for the daughter’s boyfriend, who was in the Navy, and both denied any sexual relationship between them.

This court found the photographs to be inadmissible because the prejudicial impact outweighed any probative value. This court stated that even in these “anything goes” days, society still deems it improper for a father to take these types of pictures of his daughter. (Holm, 188 Ill. App. 3d at 918, 544 N.E.2d at 1245.) In a closely balanced case, since the possibility existed that defendant could be convicted because of his bad moral character reflected in these pictures, reversal of the defendant’s conviction was necessary. Holm, 188 Ill. App. 3d at 918, 544 N.E.2d at 1245.

The evidence established any prejudicial impact from these photographs was outweighed by their probative value. First, the photographs are evidence of the fact that there was a relationship between defendant and M.S. Any prejudice that defendant may have incurred because of these photographs was sufficiently cured on cross-examination. Defendant’s counsel questioned M.S. with regard to these pictures and she admitted they were only “clowning around” when the pictures were taken and that nothing sexual happened at that time. Thus, any possibility that the jury would consider these photographs as evidence of defendant’s immoral character was dispelled by the victim’s testimony as to the circumstances of these pictures. The trial court did not err in admitting these photographs.

Defendant’s second argument regarding an evidentiary ruling is the trial court erred in denying admission into evidence a letter written by M.S. to her sister. Because of a conflict of interest, defendant’s original counsel withdrew from the case and defendant retained new counsel for trial. Defense counsel at trial was under the mistaken belief that his predecessor had provided the letter to the State. However, the letter was never given to the State in discovery.

When defense counsel attempted to impeach M.S.’s credibility with this letter, the State’s Attorney realized the letter was an item not provided in discovery. An objection to any further questioning regarding the letter was made and, after hearing argument and allowing the State’s Attorney to discuss the letter with M.S., the trial court granted the State’s motion to prevent the defense from using the letter to impeach M.S. The court specifically found the State had been denied a chance to prepare the witness for testimony regarding the letter, and although M.S. admitted the letter was in her handwriting, she had no recollection of when it was written.

Defendant contends the exclusion of this evidence was too harsh a sanction and that a recess or continuance would have protected the State from any surprise created by the discovery violation. Defendant maintains this discovery violation was neither blatant nor wilful and since this discovery violation was attributable to prior defense counsel, the document should have been admissible. The State responds the document was properly excluded because of the discovery violation as well as on the grounds that it was uncertain, undated, irrelevant and immaterial.

Supreme Court Rule 415(g)(i) provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” (134 Ill. 2d R. 415(g)(i).)

The correct sanction to be applied for a discovery violation is left to the trial court’s discretion, and the judgment of the trial judge is given great weight. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) A trial court may reject offered evidence as irrelevant if it has little probative value due to its remoteness, uncertainty, or the possibility of unfair prejudice. People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376.

There was no abuse of discretion by the trial court in excluding this evidence. First, it is uncontradicted that the letter was not provided to the State in discovery. This alone provides a proper basis for exclusion. Moreover, the contents of the letter were irrelevant to the issue of defendant’s guilt. The thoughts, concerns, or intentions of a 14-year-old victim of aggravated criminal sexual abuse do not prove or disprove any element of the crime. The exclusion of the letter was proper.

The third evidentiary issue raised by defendant concerns the scope of cross-examination of defendant concerning his relationship with A.S. The State’s Attorney questioned defendant as to A.S.’s past and current employment as an exotic dancer. Defendant suggests this line of questioning was designed to portray to the jury defendant’s immoral character through his association with A.S. Defense counsel objected to this line of questioning by the State’s Attorney on cross-examination of defendant.

A trial court has discretion to allow the prosecution wide latitude during cross-examination of the defense witnesses. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) The proper scope of cross-examination extends to matters raised on direct examination, including all matters which explain, qualify or destroy the testimony on direct examination. (People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) Only where the court has abused its discretion, resulting in manifest prejudice to the defendant, will a reviewing court interfere. Kline, 92 Ill. 2d at 504, 442 N.E.2d at 160.

The trial court did not abuse its discretion in overruling defense counsel’s objection to the State’s Attorney’s questioning of defendant regarding A.S.’s employment. First, defense counsel raised the issue on direct examination. He specifically asked defendant whether A.S. had employment other than that as a bank teller at the bank during the summer of. 1988. Defendant stated he could not recall that information. Clearly, if he did have that knowledge, he was subject to impeachment on cross-examination. This was precisely the subject of the State’s Attorney’s questions. Furthermore, the question, even if improper, was on a collateral matter and, thus, would be harmless error. The employment of A.S. had nothing to do with the issue of whether defendant sexually abused M.S. The employment of A.S. was essentially a peripheral matter to establish that defendant became acquainted with M.S. because of his relationship with A.S. No prejudice resulted to defendant because of this questioning by any implication of his character through his association with A.S.

Defendant’s final argument concerning the evidence is that the prosecution committed error during closing argument by referring to M.S. sobbing during her testimony. Defendant suggests this was an improper appeal to the jury for sympathy for M.S. The State responds initially by noting defendant has waived this argument due to a lack of an objection at trial, and further waived the issue by failing to cite any authority to support this argument. Moreover, the State contends this argument was proper as it only encouraged the jury to use its observations of the demeanor of M.S. when she testified to determine her credibility.

Defendant has waived this argument for both reasons argued by the State. Although defendant raised this issue in his post-trial motion, there was no objection to the State’s closing argument at trial. To preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Further, Supreme Court Rule 341(e)(7) provides points not argued or supported by authority with citations are waived. (134 Ill. 2d R. 341(e)(7).) The well-established rule is mere contentions without argument or citation of authority do not merit consideration on appeal. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133.) Contentions supported by some argument but by absolutely no authority do not meet the requirements of Supreme Court Rule 341(e)(7). (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) This argument of defendant, which contained no citation to any supporting authority, is waived.

Nevertheless, these remarks by the State’s Attorney were proper. Prosecutors are allowed great latitude in closing arguments. To determine whether error exists, each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) The substance and style of closing arguments are within the discretion of the trial court, and its finding will not be disturbed absent extreme error. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.) The State may discuss the credibility of witnesses during closing and rebuttal arguments, when such discussion is based upon the evidence or reasonable inferences therefrom. (People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 546 N.E.2d 274.) Improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. Any error resulting from prosecutor’s comments is generally cured when the trial court sustains objection or admonishes the jury. Eichelberger, 189 Ill. App. 3d 1020, 546 N.E.2d 274.

Here, the State’s Attorney’s statements in closing argument were not designed to arouse sympathy for M.S. Rather, they were merely comments reflecting what the attorneys and the trial court, as well as the jury, had observed of her demeanor when she testified. It was obvious to the jury that she had sobbed on the stand and that testifying was an emotional experience, as were the events of June 11, 1988. These were proper comments to the jury to assess her credibility because of her demeanor. Further, if this was error, the jury instructions cured it. Specifically, the instructions informed the jury it was to determine the credibility of the witnesses and the weight to be given to the testimony of each. The instructions further told the jury the manner in which a witness testified was a factor to be used to determine believability and the weight to be given that witness’ testimony. Finally, another instruction indicated to the jury that neither sympathy nor prejudice should influence it in its decision. Thus, any error caused by these statements was sufficiently cured through instructions.

Defendant maintains he was denied his right to the effective assistance of counsel because of his attorney’s failure to provide the letter from M.S. to her sister to the State in discovery. Defendant alleges this failure resulted in the exclusion of the letter, which prevented any inquiry about it on cross-examination of M.S. which, in turn, could have affected her credibility. Defendant contends further denial of this right resulted to him through his trial counsel’s failure to object more strenuously to the questioning of defendant concerning the employment of A.S., and for the complete failure to object during the State’s closing argument with respect to the comments on the demeanor of M.S. during her testimony.

To prevail on a claim of ineffective assistance of counsel, a defendant must show counsel’s representation fell below an objective standard of reasonableness and that counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Horton (1991), 143 Ill. 2d 11; Striekland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To show prejudice, defendant must establish that but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A reviewing court does not have to determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

The State concedes the failure to provide the letter in discovery falls below an objective level of competency. Nevertheless, defendant cannot show there is a reasonable probability that had this evidence been provided in discovery, the result of the proceeding would have been different. The trial court excluded the letter for reasons in addition to the discovery violation. The letter may have been excluded even if it had been previously disclosed. So, defendant cannot establish the outcome of the proceeding would have been any different had the letter been properly disclosed to the State.

Defendant’s other arguments regarding his right to the effective assistance of counsel can be disposed of in a similar fashion. First, defense counsel objected to the cross-examination of defendant concerning the employment of A.S. on the grounds of relevance. The State’s Attorney argued the line of questioning was merely designed to follow up some areas brought up on direct examination and the trial court agreed with this argument. Defense' counsel opened the door to defendant’s knowledge of A.S.’s employment and the State’s Attorney was correct in asserting these questions were proper on cross-examination. There would be no point in counsel arguing further when the State’s Attorney was clearly correct. Defense counsel is not required to make losing motions or objections in order to provide effective legal assistance. People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743.

Finally, defendant contends the failure of counsel to object at all to the State’s closing argument amounts to ineffective assistance of counsel. A reasonable trial tactic which fails does not constitute incompetence of counsel. )(People v. Jones (1987), 162 Ill. App. 3d 487, 515 N.E.2d 471.) Counsel’s failure to object may be- construed as an indication that defense counsel did not consider the matter to be of critical importance. (People v. Kokoraleis (1989), 132 Ill. 2d 235, 547 N.E.2d 202, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 804, 110 S. Ct. 3296.) Initially, this failure to object does not fall below an objective standard of reasonableness. Clearly, whether to object is a trial strategy, and to object when it would be overruled would be futile. The State’s Attorney’s closing argument was proper and, thus, defense counsel had no grounds for an objection. Further, no prejudice resulted to defendant because the jury was specifically instructed that sympathy was not a part of the trial and should play no part in its deliberations. Thus, any error was cured by these instructions and defendant cannot establish the result of the proceedings would have been any different had his attorney objected. The totality of the circumstances demonstrates defendant was not denied effective assistance of counsel.

Aggravated criminal sexual abuse is a Class 2 felony with a possi: ble sentence of three to seven years. (Ill. Rev. Stat. 1987, ch. 38, pars. 12—16(e), 1005—8—1(a)(5).) Defendant was sentenced to six years on each count, with the sentences to run concurrently. For his final argument, defendant contends these sentences are excessive and constitute an abuse of discretion by the trial court because it failed to take into account defendant’s lack of prior felony arrests. Defendant asserts the sentences are excessive for the nature of the crime and that a reduced sentence should be granted to allow him to acquire “restoration to a meaningful, productive life.”

The imposition of a sentence is a matter of judicial discretion, and, absent an abuse of discretion, the sentence of the trial court will not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In setting forth the reasons for the sentence imposed, a trial court need not recite, and assign a value to, each fact presented at the sentencing hearing. (People v. Crews (1989), 191 Ill. App. 3d 228, 547 N.E.2d 580.) The fact that a defendant is a first-time offender is no more than a mitigating factor that the trial court is to consider along with all other mitigating and aggravating factors. (People v. Tatum (1989), 181 Ill. App. 3d 821, 537 N.E.2d 875.) When mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Danis (1984), 129 Ill. App. 3d 664, 472 N.E.2d 1194.) A trial court may search anywhere, within reasonable bounds, for facts which tend to aggravate or mitigate the offense. Evidence of other offenses not resulting in a conviction can be considered by the trial court when determining a particular defendant’s sentence, because the trial court is not strictly limited to consideration of only that information which would be admissible under the adversary circumstances of a trial. People v. Neither (1988), 166 Ill. App. 3d 896, 520 N.E.2d 1247.

There was no abuse of discretion by the trial court. The trial court explicitly stated it had read the presentence report and defendant’s statement five or six times. The court also indicated it considered the evidence presented during the trial as well as that presented at the sentencing hearing, the arguments of counsel and, of course, the factors set forth in the statute.

The trial court considered probation as a sentence but found it would deprecate the seriousness of the offense. Accordingly, imprisonment would be necessary to protect the public. The court noted the defendant caused serious emotional harm to the victim. The court indicated prison was necessary to let others in a situation like defendant’s know this type of behavior is unacceptable. Further, the testimony of the witnesses at the sentencing hearing indicated defendant had participated in other criminal conduct and possibly the physical abuse of women. The court believed this evidence indicated defendant was of such character and attitude to repeat his conduct on other young girls unless he was imprisoned for a time. Given the nature of the offense, the manner in which it was carried out and defendant’s past behavior, the sentences imposed were not excessive. Defendant, a 35-year-old man, used his relationship with his girlfriend and the lure of alcohol and money to engage in sexual relations with a 14-year-old girl. Regardless of the fact that the victim’s behavior may be characterized as resembling that of a woman older than her 14 years, society does not condone defendant’s actions. Defendant’s convictions must be affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


author: JUSTICE GREEN

text:
    KRAFT, INC., f/k/a Dart and Kraft, Inc., et al., Plaintiffs-Appellees, v. ROGER D. SWEET, as Director of the Department of Revenue, et al., Defendants-Appellants.
    Fourth District
    No. 4—90—0633
    Opinion filed May 16, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, both of Chicago), for appellants.
    Don S. Harnack and Richard A. Hanson, both of McDermott, Will & Emery, of Chicago, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal concerns a claim by plaintiffs Kraft, Inc., and nine affiliated corporations (Kraft Group) for a certain subtraction deduction from their taxable income in determining their tax liability under the Illinois Income Tax Act (IITA) (Ill. Rev. Stat. 1987, ch. 120, par. 1—101 et seq.) for the tax years 1982 and 1983. That claimed deduction was for sums required by the “subpart F provision” of the Internal Revenue Code of 1954 (IRC) (26 U.S.C. §§951 through 964 (1982)) to be included in the Kraft Group’s determination of taxable income for Federal income-tax purposes for those years. The IRC’s subpart F provisions “reach a degree of complexity that has rarely if ever been matched in tax legislation.” (H. Steiner & D. Yagts, Transnational Legal Problems 1112 (2d ed. 1976).) As we explain later, subpart F relates to undistributed income of controlled foreign corporations (CFC’s), and much of the income which is taxable to controlling United States corporations pursuant to that provision has the attributes of a constructive dividend.

The amount of federally taxable income is the starting point upon which Illinois corporate income-tax liability is premised. The allowance of certain subtractions from federally taxable income yields a figure known as “base income,” which — reduced by the standard allowable exemption — yields a corporation’s net income subject to the IITA. (Ill. Rev. Stat. 1983, ch. 120, pars. 2—201(a), 2-202(a), 2-203(b)(l), (b)(2), (e)(1); Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 512 N.E.2d 1240.) During the years 1982 and 1983, sections 203(b)(1) and (b)(2)(N) of the IITA allowed a subtraction (deduction) in determining a corporation’s base income consisting of “dividends” received from a corporation organized outside the United States, if those dividends had been included in the determination of that corporation’s Federal taxable income. (Ill. Rev. Stat. 1983, ch. 120, pars. 2 —203(b)(1), (b)(2)(N).) The dispute that thus arises is whether subpart F income was (1) intended by the IITA provisions in force in 1982 and 1983 to be treated as a dividend, or (2) constitutionally required to be so treated. We conclude that neither such intent nor such constitutional requirement existed.

The Kraft Group took their 1982 and 1983 subpart F income shown on their IRC tax returns for those years as subtraction deductions on their IITA returns for those years. After an audit, defendant the Illinois Department of Revenue (Department) issued a notice of deficiency to the Kraft Group for their returns for these years on the basis that an improper subtraction deduction had been taken for the subpart F income. The Department also gave notice of various other claimed deficiencies as to the Kraft Group returns. On September 28, 1988, the Kraft Group paid, under protest, the amounts of the asserted deficiencies.

“An Act in relation to the payment and disposition of moneys received by officers and employees of the State of Illinois ***” (Protest Act) (Ill. Rev. Stat. 1987, ch. 127, par. 170 et seq.) sets forth a judicial procedure for paying State taxes under protest, testing the propriety of the levy of the tax and obtaining relief therefrom. On October 25, 1988, the Kraft Group filed in the circuit court of Sangamon County a 10-count complaint pursuant to the Protest Act against the Department, its Director, and the State Treasurer seeking to restrain the defendants from transferring the 1982 and 1983 taxes which they paid under protest and requesting return to them of the amount thereof. On November 23, 1988, the defendants answered, denying the salient allegations of the complaint. On March 2, 1990, the Kraft Group filed a motion for summary judgment as to the claim of deficiency in regard to the subpart F income and, on April 2, 1990, the defendants filed a motion for summary judgment as to that claim.

On July 26, 1990, the circuit court granted the Kraft Group a summary judgment, finding them entitled to the subtraction for sub-part F income which they had claimed. A partial refund based upon that determination was ordered. The court found, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), “there is no just reason for delaying enforcement or appeal of this order.” On August 20, 1990, the court entered an amending order speaking to the issue of whether the summary judgment was final as to a “claim,” as required for appealability under Supreme Court Rule 304(a). The court found that the dispute as to the subpart F income involved an issue separate and distinct from other matters at issue and involved a severable portion of the money paid under protest. The defendants have appealed. No question has been raised as to the appealability of the summary judgment, and we raise none. We reverse and remand, directing entry of summary judgment for defendants.

On March 7, 1990, the parties filed in the circuit court a written stipulation in which they agreed, inter alia: (1) all procedural requirements for filing suit under the Protest Act had been met; (2) members of the Kraft Group operate businesses from locations both within and without Illinois; (3) for the tax years 1982 and 1983, members of the Kraft Group timely filed their Illinois income tax returns as members of a unitary business group using the combined-apportionment method of allocating income (Ill. Rev. Stat. 1987, ch. 120, par. 3— 304(e)); (4) as a result of auditing the Kraft Group’s Illinois income-tax returns for the 1982 and 1983 tax years, the Department issued notices of deficiency purporting to assess additional income taxes for those years; and (5) during 1982 and 1983, members of the Kraft Group owned CFC’s within the meaning of relevant IRC provisions and, consequently, reported subpart F income on their Federal income-tax returns for those years.

The foregoing stipulation leaves only questions of law for decision. This decision depends mostly upon interpretation of sections 203(b)(1) and (b)(2)(N) of the IITA which were in force for the taxable years 1982 and 1983. They then provided that “base income” for a corporation was the corporation’s taxable income, which could be modified by deducting:

“An amount equal to: (i) 85% of the amount by which dividends included in taxable income and received from a corporation that is not created or organized under the laws of the United States or any state or political subdivision thereof exceed the amount of [a certain modification]; plus (ii) 100% of the amount by which dividends, included in taxable income and received from any such corporation specified in clause (i) that would but for the provisions of Section 1504(b)(3) of the [IRC] be treated as a member of the affiliated group which includes the dividend recipient, exceed [certain other amounts of modification].” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 120, par. 2—203(b)(2)(N).

The thrust of the foregoing is that the subtraction involved is calculated on the basis of “dividends” from a CFG. To determine whether subpart F income constitutes “dividends” within the meaning of that legislation, we first examine the functions of subpart F of the IRC. It is directed primarily to the practice of United States corporations establishing subsidiary corporations in foreign “tax haven” countries, which have tax rates lower than those of the United States.

By segregating foreign business activities in CFC’s, United States corporations could defer payment of United States taxes on the earnings of these corporations until repatriation of the earnings of the foreign subsidiaries in the form of either dividends or liquidating distributions to shareholders, or until sale of holdings in the foreign corporations. In order to address this problem, Congress, in the Revenue Act of 1962 (Pub. L. No. 87 — 834, 76 Stat. 960 (1962)), enacted subpart F of the IRC. These provisions generally (1) treat all or part of the undistributed earnings of CFC’s as if they had been distributed to the major United States shareholders of such corporations in the years in which they were earned, and (2) impose a tax payable by the major United States shareholders in CFC’s on this attributable income. H. Steiner & D. Vagts, Transnational Legal Problems 1110-12 (2d ed. 1976); B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders, pars. 17.30,17.31 (5th ed. 1987).

The income of CFC’s which is deemed distributed and which is taxable to major United States shareholders of such corporations includes some, but not all, CFG income within the conventional meaning of that term. It also includes, however, some items which are not within the generally accepted meaning of the term “income.” Among these are “increase in earnings invested in United States property,” which includes (1) long-term loans made to a United States parent corporation by a CFG, and (2) amounts expended by a CFG in purchasing United States property for lease to a United States parent corporation, to the extent these two categories of expenditures generally exceed other subpart F income for the past and present tax years. B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders, par. 17.32(2), at 17—77 through 17—78 (5th ed. 1987); H.R. Rep. No. 1447, 87th Cong., 2d Sess., at 63 (1962).

Because much of the CFG income which subpart F deems income of the controlling United States corporation creates cash flow for the parent corporation or reduces its expenditures, the income can be considered to be in the nature of a constructive dividend. This is at the heart of the Kraft Group’s contention that the deemed subpart F income should be considered a dividend within the meaning of sections 203(b)(1) and (b)(2)(N) of the IITA. However, this is not true of all subpart F income. Also included in the income deemed distributed to the major United States shareholders of CFC’s are illegal bribes, kickbacks, and other amounts paid by or on behalf of a CFG to an official, employee, or agent in fact of a government. 26 U.S.C. §952(a)(4) (1982).

Because much of subpart F income is treated as income for the reason that benefits are bestowed upon the controlling shareholder corporation, various States with State income-tax laws similar to the IITA have construed that income to be a dividend entitled to subtraction deduction. (See, e.g., Dow Chemical Co. v. Director of Revenue (Mo. 1990), 787 S.W.2d 276; Dow Chemical Co. v. Commissioner of Revenue (1979), 378 Mass. 254, 391 N.E.2d 253; Commonwealth v. Emhart Corp. (1971), 443 Penn. 397, 278 A.2d 916.) While those statutes are similar, the opinions give no indication that the term “dividend” is required to be given the strict interpretation which, as we will explain, is required by the IITA.

At times pertinent, section 203(h) of the IITA has stated:

“Legislative intention. Except as expressly provided by this Section, there shall be no modifications or limitations on the amounts of income, gain, loss or deduction taken into account in determining gross income, adjusted gross income or taxable income for federal income tax purposes for the taxable year, or in the amount of such items entering into the computation of base income and net income under this Act for such taxable year, whether in respect of property values as of August 1, 1969 or otherwise.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 120, par. 2—203(h).

At similar times, section 102 of the IITA has provided:

“Construction. Except as otherwise expressly provided or clearly appearing from the context, any term used in this Act shall have the same meaning as when used in a comparable context in the United States Internal Revenue Code of 1951 or any successor law or laws relating to federal income taxes and other provisions of the statutes of the United States relating to federal income taxes as such Code, laws and statutes are in effect for the taxable year.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 120, par. 1-102.

At these same times, section 316(a) of the IRC has defined the term “dividend” as:

“[A]ny distribution of property made by a corporation to its shareholders—
(1) out of its earnings or profits accumulated after February 28, 1913, or
(2) out of its earnings and profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.”
26 U.S.C. §316(a) (1982).

Clearly, sections 203(b)(1) and (b)(2)(N) of the IITA, at times pertinent here, did not “expressly” provide for “modifications” (subtraction deductions) for subpart F income in determining the Illinois income tax of a corporation deemed to receive such income. Subpart F has never expressly provided that subpart F income is to be considered as dividends, nor has the context of subpart F ever “clearly” indicated that was intended. While others may construe language similar to that in sections 203(b)(1) and (b)(2)(N) and the purpose for granting dividend subtraction deductions to imply that subpart F income is a dividend, the statutory format of the IITA directs us not to draw this inference.

Our conclusion that we should not infer that subpart F income is a dividend is strengthened by the fact that some constructive subpart F income, such as illegal bribes, kickbacks, and certain types of payments to governments or their agents, does not necessarily involve the flow of any advantage to the United States corporation which may be charged with such income. Apparently nothing of that nature is involved here, but a construction that treats subpart F income as a dividend would lead to the illogical conclusion that a “dividend” resulted from such conduct.

We also note that although subpart F income may, directly or indirectly, enhance the cash flow of the controlling United States corporation, the enhancement of the cash flow does not come from or diminish the accumulated profits of the CFG, as required of dividends by section 316(a) of the IRC. If the transaction constituting subpart F income is the extension of a loan by the CFG to the parent corporation, the balance sheet of the CFG is affected only by a receivable item in a certain amount appearing on the asset side of its balance sheet and a decrease in the cash on hand by the same amount.

We recognize that our strict interpretation of the provisions of sections 203(b)(1) and (b)(2)(N) of the IITA may be inconsistent with a general policy of the legislation invoked to accord equal tax treatment to dividends of domestic subsidiaries and those of foreign subsidiaries of corporations filing Illinois income-tax returns. (See Ill. Rev. Stat. 1983, ch. 120, pars. 2—203(b)(2)(J), 3—304(a)(3)(B)(ii), 15—1501(a)(28); General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 469 N.E.2d 1067; 82d Ill. Gen. Assem., House Proceedings, Nov. 5, 1982, at 4796.) For instance, if the subpart F income here at issue resulted from a loan by a CFG to a group member, as indicated in the Kraft Group’s brief, the following would result: Kraft Group pays Illinois income taxes on that amount in a given year; then, in a future year, when the CFG profits used to make the loan are actually distributed by the CFG to the Kraft Group corporation, no deduction can be taken by that corporation because the dividend would not be part of the IRC income of the Kraft Group corporation for that year. While only one tax under the IITA for the distributed income would be incurred, no such tax would have been incurred if the profits had been distributed the year in which the subpart F income was received by the CFG.

The Kraft Group also maintains that treatment by the Department of subtractions arising from the operation of section 78 of the IRC (26 U.S.C. §78 (1982)) under section 203(b)(2)(N) of the IITA is inconsistent with the position taken by the Department concerning the subpart F income involved in this case. The substance of section 78 of the IRC is that if a domestic corporation takes advantage of IRC provisions permitting it to take foreign tax credits, for foreign taxes paid by its foreign subsidiary on the income giving rise to a dividend paid to the domestic corporation by the subsidiary, then the domestic corporation must treat the foreign tax credits as “dividends” for the tax years in which they are taken. (26 U.S.C. §78 (1982).) We do not fully understand the Kraft Group’s theory as to how the treatment given that “dividend” by section 203(b)(2)(N) is inconsistent with the treatment given subpart F income. However, any disparity in treatment would appear to be justified by the fact that section 78 describes the amount of the tax credit as a “dividend” and the IRC does not describe subpart F income as a dividend.

In January 1987, the General Assembly reclassified sections 203(b)(1) and (b)(2)(N) to sections 203(b)(1) and (b)(2)(G) of the IITA (Ill. Rev. Stat. 1987, ch. 120, pars. 2—203(b)(1), (b)(2)(G)) and amended them to provide that the “dividends” which formerly were the basis for a subtraction under sections 203(b)(1) and (b)(2)(N) include “for taxable years ending on or after December 31, 1988, dividends received or deemed received or paid or deemed paid under Sections 951 through 964 of the Internal Revenue Code [subpart F].” (Ill. Rev. Stat. 1987, ch. 120, par. 2—203(b)(2)(G).) Despite the fact that this legislation expressly indicates that the subtraction for subpart F income is applicable only to tax years ending on or after December 31, 1988, the Kraft Group maintains that the legislation was intended to clarify section 203(b) as it existed for the years 1982 and 1983.

As noted by the Kraft Group, Senator Netsch stated the following during the debate concerning the bill which established a subtraction for subpart F income:

“The bill at the behest of the State Chamber of Commerce and other business groups does allow subpart F income as a deduction [subtraction] on State corporate tax returns. That is what the business community wanted. There had been a dispute between the Department of Revenue and the taxpayers as to whether or not it was deductible.” (84th Ill. Gen. Assem., Senate Proceedings, December 3, 1986, at 6-7 (statements of Senator Netsch) (debates on House Bill 1321).)

However, earlier in the debates regarding this bill, Senator Netsch stated, “[W]e have made it prospective, that is the taxpayers cannot go back and redo any of their returns for prior years ***.” (84th Ill. Gen. Assem., Senate Proceedings, June 30, 1986, at 24 (statements of Senator Netsch).) Additionally, the Governor amendatorüy vetoed this bill by, inter alia, delaying the effective date of the subpart F subtraction for one year. In his amendatory veto message, the Governor stated the delay “will give businesses time to plan capital investment and give the state time to adjust to the revenue loss.” (Emphasis added.) 84th Ill. Gen. Assem., House Proceedings, Nov. 6, 1986, at 5205.

As the Kraft Group observes, the supreme court has on prior occasions interpreted taxation legislation as clarifying existing law, rather than enacting new law. (Continental Illinois National Bank & Trust Co. v. Lenckos (1984), 102 Ill. 2d 210, 464 N.E.2d 1064; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 283 N.E.2d 465.) In none of these cases, however, were there statements in the legislative history indicating an intent to accord the enactment prospective effect only. The proviso that the subtractions for subpart F deemed income is available for tax years ending on or after December 31, 1988, strongly supports the conclusion that the legislation permitting this subtraction was not intended to clarify an existing statute. (Secretary of State v. Mikusch (1990), 138 Ill. 2d 242, 562 N.E.2d 168.) The legislative history of the 1987 amendment of the IITA establishing a subtraction for subpart F income does not clearly establish that it was an interpretation or clarification of existing law. Indeed, that history strongly indicates the amendment was intended to have only a prospective effect.

The constitutional challenge by the Kraft Group is based upon the uniformity requirement of the Illinois Constitution of 1970, which states:

“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.” (Ill. Const. 1970, art. IX, §2.)

The Kraft Group’s assertion in this regard is very similar to its argument that subpart F income should be construed to be a “dividend” subject to a subtraction deduction because it involves use of CFG assets to benefit domestic parent corporations, just as a dividend does.

To survive the scrutiny of the constitutional uniformity requirement, classifications contained in non-property tax laws must be based on a real and substantial difference between persons or entities taxed and those not taxed, and the classifications must bear some reasonable relationship to the object of the legislation or to public policy. (Searle Pharmaceuticals, 117 Ill. 2d 454, 512 N.E.2d 1240.) Unquestionably, the inclusion in subpart F income of bribes and kickbacks has a punitive aspect to it. This type of subpart F income clearly differs from dividends which a subsidiary pays to its parent. However, the more usual transactions giving rise to subpart F income are also of a different nature than the distribution of the profits of a CFG by payment of a dividend to its parent. The former transactions have tax-evasive aspects which the legislature may deem less worthy of an income tax subtraction than the straightforward procedure of dividend distribution. If CFG profits are used to effectuate a loan to the parent, the loan presumably will be repaid, and the profits will be returned to the CFG. Similarly, if CFG profits are used to acquire domestic property to be rented to the parent corporation, the rentals will be paid to the CFG.

While the present treatment of subpart F income by the IITA may be the easiest and fairest way to treat it, a real and substantial difference exists between the foregoing type of subpart F income and a dividend. This difference is far more substantial than, for instance, that existing between corporations filing consolidated Federal income-tax returns and those filing separate Federal income-tax returns, which the Searle Pharmaceuticals court held was an impermissible basis for determining entitlement to the right to carry back prior years’ net operating losses. We hold the denial of a subtraction deduction for subpart F income under sections 203(b)(1) and (b)(2)(N) of IITA for the tax years 1982 and 1983 was not violative of article IX, section 2, of the Illinois Constitution of 1970.

As neither rules of statutory interpretation nor article IX, section 2, of the Illinois Constitution of 1970 directs us to grant the Kraft Group the subtraction they request, we reverse the judgment with respect to the claim on appeal and remand the cause to the circuit court of Sangamon County with directions to enter summary judgment for defendants as to that claim.

Reversed and remanded with directions.

STEIGMANN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. $1,002 UNITED STATES CURRENCY, Defendant-Appellee.
    Fourth District
    No. 4—90—0694
    Opinion filed May 15, 1991.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The State appeals from the order of the circuit court of McLean County denying its complaint for forfeiture of $1,002 United States currency. We reverse.

On February 21, 1990, the State filed a complaint, for forfeiture of $1,002 U.S. currency, nine hypodermic syringes, and quantities of heroin pursuant to section 505 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 1505). The complaint alleged that the foregoing items were recovered by officers of the Illinois State Police during the lawful search of an automobile. The cause proceeded to a hearing.

Trooper William Colbrook testified that on February 21, 1990, he conducted a traffic stop of an automobile operated by Jerry Fields, the addi: tional party in this case. Fields exited the car and presented a Missouri citation identifying him as Jerry Reynolds. Colbrook conducted a pat-down search for weapons and retrieved a bundle of currency from Fields’ left front trouser pocket. Colbrook and Fields proceeded to Colbrook’s squad car, where Colbrook issued Fields a citation for failing to have a valid driver’s license and a written warning for improper lane usage. Sometime later, Trooper Jeff Gaither arrived to assist Colbrook. As Gaither was talking to Fields’ passenger, who was still in the car, he saw and recovered a red and white capsule. Gaither returned to Colbrook’s squad car with the capsule. Colbrook asked Fields what it was, and Fields replied that he did not know because it was not his car. Fields provided the officers with the phone number of the owner of the car. The Department of State Police contacted the owner of the car, and informed the officers that Fields had permission to use it. Colbrook then requested and obtained Fields’ permission to search the car for contraband, drugs, and weapons.

During the search, Gaither found a red suitcase in the back of the car which contained hypodermic syringes. Colbrook returned to his squad car and asked Fields if he was a diabetic or an epileptic. After Fields replied that he was a diabetic, Colbrook asked him if he had a prescription to possess hypodermic syringes. Fields responded that a prescription is not required to possess hypodermic syringes in Missouri. As Gaither continued the search, he recovered balloons with a white powdery substance on them and a “bottle-cap” cooker containing a dark tar substance. Colbrook described the cooker as a bottle cap with a wire wrapped around it as a handle so that it could be used as a cooker. He explained that the recovered items are “commonly known as what a junky would use.” Gaither also found a pocketknife and two white bottles. One of these bottles appeared empty and the other contained a clear liquid.

Colbrook performed a field test for heroin on the tar substance in the bottom of the bottle-cap cooker. The substance tested positive for heroin. Colbrook then asked Fields to exit the squad car and lift up his sleeves. He observed “track marks,” or collapsed veins, on the inside of Fields’ elbows. Fields then told Colbrook “that he was a junky and that he had shot up two days earlier.” Colbrook placed Fields under arrest for possession of hypodermic syringes and a controlled substance.

When asked how he determined the ownership of the red suitcase, Colbrook responded that Fields’ passenger told him that Fields owned the suitcase. Colbrook further explained that he found a wallet containing an expired Missouri driver’s license belonging to Fields in the suitcase.

Colbrook testified that he recovered $1,022 in U.S. currency from Fields, $20 of which he allowed Fields to give to his passenger so that he could return to Missouri.

Colbrook then explained the handling of the recovered evidence:

“Q. [Prosecutor:] Okay. With respect to the substance that you had field tested, did you — you took that item, specifically the bottle cap cooker, into your custody. ,s that right?
A. [Colbrook:] Yes, I did. I took all — custody of all evidence.
Q. And where did you take the evidence?
A. I took it to a locker, McLean County Sheriff’s Department.
Q. Okay, and then what did you do with it?
A. I placed it into evidence.
Q. Okay, and who would have been responsible for seeing that that evidence was subsequently taken to the crime lab to be examined by a forensic scientist?
A. Be the District 6 FM officer.
Q. And who is that?
A. We’ve had several.
Q. Master Sergeant Vedder?
A. He would have been one of them.”

Trooper Gaither’s testimony substantially corroborated Colbrook’s testimony and provided some additional relevant details. Gaither explained that the suitcase he recovered was on the backseat of the car within the driver’s reach. He also stated that he observed Colbrook conduct the field test of the substance contained in the cooker and interpreted the result as a positive indication that the substance was heroin. Gaither explained he had performed the test in the past and had independent knowledge and experience that would assist him in interpreting the results.

Debra Minton, an Illinois State Police forensic scientist, testified that on February 27, 1990, she received a manila envelope sent by certified mail from Master Sergeant Ron Vedder of the Illinois State Police. The envelope contained three sealed manila envelopes. Minton explained that the first envelope contained a small bottle cap and a pocketknife. The second envelope contained a ziplock bag in which there were two wet bottles. The third envelope contained balloons, a nylon band, and some syringes.

Minton stated that she performed an analysis consisting of two standard tests on the substance found in the bottle cap. The tests confirmed the presence of cocaine, heroin, and diphenhydramine. She performed no tests on the other evidence which was sent to her. The court asked Min-ton if she made identifying marks on the evidence. She replied that she marked all three envelopes. The court also asked if she had seen the envelopes since she returned them to the State Police. Minton responded that she had not.

Fields, who appeared pro se in the hearing, offered no evidence.

At the conclusion of the hearing, the court questioned whether the State had established the chain of custody for the bottle-cap cooker. The State argued that it had satisfied the preponderance of the evidence standard of proof characteristic of civil proceedings. The court granted the State leave to file a memorandum of law citing authority in support of its argument.

On September 11, 1990, the court entered an opinion and order denying the State’s complaint for forfeiture. The court further ordered the return of the $1,002 currency to the additional party and the destruction of the bottle-cap cooker. The State filed timely notice of appeal.

At the outset, we note that the additional party has not filed a brief in this court. However, since the record is simple and the issues are clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The State raises two major contentions on appeal. First, the State contends the officers’ testimony that the dark tar substance field tested positive for heroin was sufficient to prove by a preponderance of the evidence that it was a controlled substance. Therefore, the State contends, establishing a chain of custody from the scene of the arrest to the crime lab was not essential to its case. Alternatively, the State argues that the chain of custody established at the hearing was sufficient to prove that the substance which tested positive for heroin in the crime lab was the substance seized during the defendant’s arrest. As the State’s first argument provides a basis for reversal, we will not address its second contention.

Sections 505(aXl) and (aX5) of the Act state, in relevant part, as follows:

“The following are subject to forfeiture:
(1) all substances which have been manufactured, distributed, dispensed, or possessed in violation of this Act;
* * *
(5) *** All moneys, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of substances, are rebuttably presumed to be forfeitable under this Act. The burden of proof is upon claimants of the property to rebut this presumption.” (Ill. Rev. Stat. 1989, ch. 56½, pars. 1505(a)(1), (a)(5).)

A forfeiture proceeding is an in rem action against the item used in the commission of an offense. As the proceeding is civil in nature, the State need only prove its right to the property by a preponderance of the evidence rather than beyond all reasonable doubt. People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 112, 420 N.E.2d 770, 772.

A positive field test has been found sufficient to establish that a substance is a narcotic under both the preponderance of the evidence and beyond a reasonable doubt standards of proof. In People v. Gaston (1975), 31 Ill. App. 3d 352, 334 N.E.2d 823, the defendant pleaded guilty to three counts of possession of a controlled substance and was placed on five years’ probation. Two months later, police apprehended the defendant and found a cigarette pack containing 16 packets of white powder in his possession. After the substance field tested positive for heroin, the defendant was arrested and charged with possession of a controlled substance, battery, and resisting arrest. Subsequently, the State petitioned for a rule to show cause why the probation should not be terminated. The cause proceeded to a hearing where neither the cigarette pack nor the white substance was introduced into evidence. The court revoked defendant’s probation and sentenced him to a term of seven to eight years’ imprisonment.

On appeal, defendant argued that the State provided insufficient proof that the substance was a narcotic because the nature of the substance was proved by incompetent evidence, the chain of custody was not proved, and the cigarette pack was not introduced into evidence. The First District Appellate Court affirmed the decision of the circuit court, reasoning that a positive field test is, by itself, sufficient to establish that a substance is a narcotic. Accordingly, the court found that the chain of custody and the nonproduction of the cigarette pack were immaterial. Gaston, 31 Ill. App. 3d at 354, 334 N.E.2d at 825.

Gaston was later cited with approval in People v. Vazquez (1989), 180 Ill. App. 3d 270, 535 N.E.2d 981. In Vazquez, the First District Appellate Court affirmed a criminal conviction for unlawful delivery of a controlled substance. The court found that the defendant’s chain of custody challenge was immaterial, in light of the fact that a field test established that the recovered substance was a narcotic. Vazquez, 180 Ill. App. 3d at 277, 535 N.E.2d at 986.

In the instant case, both officers testified that the substance in the cooker field tested positive for heroin. Trooper Gaither testified that the suitcase containing the cooker was on the backseat of the car, within reach of the additional party from whom the currency was recovered. This testimony was sufficient to raise the statutory presumption that the currency was forfeitable. As the additional party declined to present any evidence to rebut this presumption, the trial court improperly denied the State’s complaint for forfeiture.

Reversed.

SPITZ and KNECHT, JJ., concur.


text:
    CARMEN C. DAVIS et al., Plaintiffs-Appellees, v. SSS DEVELOPMENT, INC., d/b/a Jiffi Convenience Food Stores, Defendant-Appellant.
    Fourth District
    Nos. 4—90—0685, 4—90—0728 cons.
    Opinion filed May 16, 1991.

      William H. Hoagland and C. Raymond Bell, both of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for SSS Development, Inc.
    Donald G. Adams, of Quincy, for Carmen C. Davis and Christopher Davis.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Carmen C. Davis filed a two-count dramshop action against defendant SSS Development, Inc., d/b/a Jiffi Convenience Food Stores. In count I, plaintiff sought to recover for injuries he suffered due to the intoxication of Melody Dominguez. In count II, plaintiff brought a claim on behalf of his son, Christopher Ryan Davis, for loss of support pursuant to section 6 — 21(a) of the Dramshop Act (Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135(a)). Defendant filed motions for summary judgment as to both counts. The trial court granted the motion as to count I but denied summary judgment on count II. Plaintiffs appeal of the order entered on count I (No. 4 — 90—0728) and defendant’s interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) regarding count II (No. 4 — 90—0685) were consolidated in this court. Plaintiff argues summary judgment on count I was improper because the evidence did not establish his complicity as a matter of law. Defendant certifies the following issue for our consideration: whether the claims of those persons alleging loss to means of support under section 6 — 21 of the Act are barred by the complicity of the person who provided the means of support in question and who was injured as a result of the alleged intoxication. We affirm the order entered on count I (No. 4 — 90—0728), and reverse the order entered on count II (No. 4 — 90—0685).

The facts are undisputed. Plaintiff testified in his deposition that he and Dominguez met at approximately 6 p.m. on November 6, 1986, at the trailer belonging to Daisey Inman in Pearl, Illinois. While at the trailer, plaintiff opened a bottle of whiskey which belonged to another person, Ron Kamp, and began with Dominguez to drink “shots” directly from the bottle. Plaintiff and Dominguez passed the bottle between each other. After several shots of whiskey, plaintiff accompanied Dominguez on a walk to defendant’s convenience store. Plaintiff stated he had no money but Dominguez had $5. Plaintiff told Dominguez to buy a six-pack of beer and a bottle of grain alcohol from defendant’s store. Plaintiff waited outside the store. Plaintiff testified he intended to give the grain alcohol to Ron Kamp to repay him because he and Dominguez drank some of his whiskey. Plaintiff stated he intended to drink the beer with Dominguez.

After buying the beer and alcohol, plaintiff and Dominguez walked back to Inman’s trailer, picked up the whiskey, and began walking toward plaintiff’s trailer to drink the beer and “party.” On the way, plaintiff and Dominguez encountered Kamp, two other girls, and two friends, Walter Lavelle and Bobby Shanks. Plaintiff and Dominguez accompanied them to the parking lot of a local grade school and immediately began drinking. Plaintiff recalled drinking five to six cans of beer provided by the group in addition to a portion of the beer he purchased with Dominguez from defendant’s store. At this point, everyone except plaintiff, Shanks, and possibly Dominguez was intoxicated. Plaintiff recalled some members of the group smoked marijuana while at the parking lot but plaintiff was not sure if Dominguez did.

The group then left the parking lot and went to plaintiff’s trailer, where the remaining beers were brought inside. Dominguez left the trailer with Shanks to buy more beer and wine. While Dominguez and Shanks were gone, the persons in the trailer, including plaintiff, drank the remaining beer and the grain alcohol. Dominguez and Shanks returned to plaintiff’s trailer with two bottles of wine and a couple of six-packs of beer. Plaintiff did not know who provided the money to buy the additional liquor but stated he had no objection to the group continuing to drink. Plaintiff continued to drink beer while Dominguez drank wine. At 9:30 p.m., Lavelle and some of his friends left plaintiff’s trailer. Plaintiff then got into an argument with Shanks. By this time, everyone was intoxicated.

Dominguez and Shanks left plaintiff’s trailer to purchase more beer and wine. Plaintiff did not know where the money came from to buy this liquor. Plaintiff shared the latest liquor purchase with Dominguez and others. Because plaintiff had been warned by Kamp he may get shot, plaintiff barricaded the door to the room in his trailer “way after 10:00 o’clock” when he decided to go to sleep. Plaintiff was awakened early in the morning on November 7, 1986, by Dominguez, who was holding a gun in her hand and threatening to shoot him. After arguing with plaintiff for a short time, Dominguez shot plaintiff in the chest. Plaintiff’s legs are paralyzed.

The basis for defendant’s motion for summary judgment was that plaintiff was guilty of complicity as a matter of law. The trial court found plaintiff’s complicity barred any recovery for plaintiff’s personal injuries but did not bar an action for support under the Act.

Section 6 — 21 of the Act (Ill. Rev. Stat. 1987, ch. 43, par. 135(a)) allows individuals injured by intoxicated persons to recover from those who sold alcoholic liquor to the intoxicated person. However, a plaintiff cannot recover under the Act unless he is free from complicity. (Almanza v. Austino (1980), 83 Ill. App. 3d 354, 403 N.E.2d 1297.) The doctrine of complicity relies upon active contribution to or procurement of the inebriant’s intoxication by plaintiff. (Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App. 3d 515, 408 N.E.2d 68.) The test to determine a plaintiff’s complicity is whether the plaintiff actively contributed to or procured the intoxication of the inebriate. (Nelson v. Araiza (1978), 69 Ill. 2d 534, 372 N.E.2d 637.) If the test is met, the plaintiff’s right to recovery under the Act is barred. (Lewis v. Champaign County VFW Post No. 5520 (1989), 187 Ill. App. 3d 73, 543 N.E.2d 233; Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108.) As stated in Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500:

“[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.”

See also Lewis, 187 Ill. App. 3d at 76, 543 N.E.2d at 235, quoting Tezak v. Cooper (1960), 24 Ill. App. 2d 356, 362, 164 N.E.2d 493, 496.

Plaintiff argues the evidence did not establish his complicity as a matter of law and, therefore, summary judgment was improper. We disagree. The evidence established plaintiff initiated the drinking on November 6, 1986, by offering Dominguez shots of whiskey. Plaintiff then accompanied Dominguez to defendant’s store and instructed her as to what liquor to purchase. Plaintiff consumed that liquor with Dominguez and continued drinking the beer the group obtained until “way after 10:00 o’clock.” The fact that defendant did not actually purchase any liquor of his own with his own money is of no consequence in this case where the evidence overwhelmingly establishes plaintiff’s voluntary participation in the drinking activities. (Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215; Parsons, 86 Ill. App. 3d at 521, 408 N.E.2d at 74.) We conclude summary judgment was properly entered on count I.

As to the issue certified under Rule 308, defendant first argues the loss of support action under section 6 — 21(a) of the Act is a derivative action, dependent on plaintiff’s recovery against defendant for his personal injuries. Since plaintiff’s complicity bars his right of recovery, the loss of support action is also barred. In support of its argument, defendant relies on the reasoning of those cases which determined a loss of consortium claim and a wrongful death action are derivative.

Defendant also asserts that since the defense of complicity has been recognized by the supreme court as evolving from the doctrine that one cannot profit from his own wrong (Nelson, 69 Ill. 2d at 539, 372 N.E.2d at 639), it logically follows that the loss of support action cannot be maintained because it would allow a plaintiff to profit from his wrongdoing by ordering a defendant dramshop to pay support for a plaintiff’s child. Further, defendant directs our attention to the 1985 amendment to the Act which bars causes of action for loss of support brought by intoxicated persons. According to defendant, this amendment evidences the legislature’s intent that no person shall profit under the Act from his own wrongdoing. Thus, plaintiff’s action in this case should be barred.

Plaintiff contends the complicity defense bars only those persons who actively contribute to or procure the intoxication of the inebriate and since Christopher is not one of those persons, his claim is not barred.

The purpose of the Act is to control abuses in the liquor trade and protect the public by placing the responsibility for injuries caused by intoxication on those who profit therefrom. (Ill. Rev. Stat. 1987, ch. 43, par. 94; Geocaris v. Bangs (1968), 91 Ill. App. 2d 81, 234 N.E.2d 17; Tresch v. Nielsen (1965), 57 Ill. App. 2d 469, 207 N.E.2d 109.) The complicity defense was judicially created and is an outgrowth of the “innocent suitor” concept (Nelson, 69 Ill. 2d at 538, 372 N.E.2d at 638), which holds that one who is an active and willing agent in procuring the intoxication of his assailant cannot recover under the Act. (Burnley v. Moore (1963), 41 Ill. App. 2d 156, 190 N.E.2d 141.) Both precepts hold that recovery by a plaintiff found complicit would undermine the purpose of the Act. Nelson, 69 Ill. 2d at 538-39, 372 N.E.2d at 638-39, citing Osinger v. Christian (1963), 43 Ill. App. 2d 480, 485, 193 N.E.2d 872, 875.

Section 6 — 21(a) of the Act directs that rights of action for loss of support, like actions for personal injuries under the Act, are brought in the name of the injured person, the support provider, and may not be brought by those losing their means of support. (Ill. Rev. Stat. 1987, ch. 43, par. 135(a).) Because the complicity defense is a complete bar to a plaintiff’s right to recover for injuries to his person or property, we conclude the defense likewise bars a loss of support claim. (See Reeves v. Brno, Inc. (1985), 138 Ill. App. 3d 861, 486 N.E.2d 405 (claim for personal injuries and loss of support barred by complicity of plaintiff); Parsons, 86 Ill. App. 3d 515, 408 N.E.2d 68 (claim for loss of support barred by complicity of deceased spouse).) To hold otherwise would thwart the purposes of the Act and undermine the legal axiom underlying the complicity defense, that one cannot profit from his own wrongdoing. Relieving plaintiff of his support obligation to Christopher by holding defendant liable on this claim is tantamount to granting plaintiff benefits from his wrongful acts. We have considered plaintiff’s contention that Christopher is an innocent party in this matter but conclude that it is the plaintiff’s conduct this court must look at when considering an action pursuant to the Act.

For the foregoing reasons, we affirm the order for summary judgment entered on count I and determine claims for loss of support under the Act are barred by the complicity of the support provider and party injured as a result of the intoxication of a third party. Thus, the order denying defendant’s motion for summary judgment on count II is reversed.

No. 4 — 90—0728, Affirmed.

No. 4 — 90—0685, Reversed.

GREEN and STEIGMANN, JJ., concur.