author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS GUTIERREZ, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0105
    Opinion filed November 12, 1992.

      Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Annette Milleville, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Carlos Gutierrez, was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14), aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10—2), kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10—1), and false personation of the police (Ill. Rev. Stat. 1987, ch. 38, par. 17—2). He was acquitted of the robbery charge. Defendant was sentenced to 16 years in the Department of Corrections for aggravated criminal sexual assault and various counts of kidnapping. He was also sentenced to a concurrent three-year term for false personation of a peace officer. Defendant now appeals his convictions.

On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault; (2) the trial court erred in admitting evidence of an eight-year-old incident where he had posed as a peace officer and attempted to force a woman and her young child into his car; (3) the trial court erred in admitting complainant’s statements to her mother, overheard by a witness for the State; (4) the prosecutor’s comments during closing arguments denied him a fair trial; (5) the trial court abused its discretion in imposing a sentence above the minimum statutory requirement; (6) the cumulative effect of trial errors denied him a fair trial; and (7) he was entitled to a hearing regarding his fitness to stand trial.

We affirm.

On the evening of November 23, 1988, the 25-year-old complainant and her 18-month-old son were waiting for the “El” at 19th and California Avenue, in Chicago, after leaving her mother’s home. Because it was cold, complainant decided to take the bus. As she began walking toward the bus stop, defendant drove up and offered her a ride. She accepted a ride to Jackson Street. Shortly after they drove off, defendant pulled out what appeared to be a police badge. Complainant testified that defendant told her that he was an undercover policeman. He told her that he would take her to jail for prostitution and that her baby would be taken from her unless she agreed to cooperate.

Defendant turned into a vacant lot at Taylor Street. He threw complainant’s baby into the back seat and then forced complainant to engage in oral and vaginal sex. She asked defendant why he was doing this to her. She testified that he responded, “You know why.” Complainant further testified that he was unconcerned when she told him shortly before they had intercourse that she was two months pregnant.

After having intercourse in the car, defendant complained that the car was not big enough and that they were going to a hotel. At this point, the baby began to cry. When complainant reached for the baby, defendant slapped her hand and handcuffed her left wrist while holding onto the other end of the cuff. Defendant took the $10 complainant had borrowed from her mother and drove to a hotel. He stopped at a pay telephone nearby and told complainant that she was allowed one call. Defendant led her out of the car, leaving her baby behind. Complainant tried to call her mother, but after the telephone rang twice defendant hung up the receiver. Complainant’s mother later testified that the telephone did ring around the time her daughter indicated, but when she picked up the receiver no one was on the line.

After leaving the public telephone, defendant and complainant returned to the car. Complainant was handcuffed to the steering wheel while defendant checked into the hotel. In his own defense, defendant testified that it was complainant who was initially curious about the handcuffs and that she voluntarily offered her left wrist to try them out. However, the witness stated that it must have been laziness or stupidity that prompted him to attach the other cuff to the steering wheel.

Complainant was able to free herself by squeezing her hand out of the handcuff, which resulted in scratches to her wrist and hand. Police officers Steven Tribe and Patrick O’Donovan confirmed the injuries to complainant’s hand. After escaping with her child, complainant began knocking on doors in the area, begging for help. Finally, Patrick O’Reilly agreed to allow her to use his telephone. O’Reilly heard complainant tell her mother how she had been raped. He then spoke to her mother and decided to bring complainant home himself.

Complainant’s mother testified as to the conversation with her daughter. The witness stated that complainant was crying, upset, and said she had been raped. When complainant was returned home, her mother called the police. Officer Tribe testified as to the events leading to the arrest of defendant. Complainant identified defendant’s red car parked outside of a tavern. Officers Tribe and O’Donovan entered the tavern and saw the handcuffs on defendant’s person. After arresting him, they found the wallet containing the fake police badge. When the police brought the defendant out of the tavern, complainant identified him as the man who raped her. Later, defendant told police that he was a security guard at a Zayre department store.

At trial, defendant testified in his own defense. He stated that complainant told him that he could have a “date” for $10. He further testified that the intercourse between them was consensual and that it was her decision that they continue in a hotel.

Felisitas Huertas, an immigrant from Mexico, also testified for the State. On May 28, 1980, she was walking with her one-year-old daughter shortly after midnight. At the intersection of Campbell and Taylor Streets, a man got out of a red car and told her that he was from “Immigration.” He wanted money and if she refused they were going to go to her house to get her “papers.” He then grabbed Huertas and attempted to drag her to his car. She identified defendant as the man who approached her.

First defendant contends that the State failed to prove him guilty beyond a reasonable doubt. We begin our analysis with the standard of review. “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

In the case at bar, defendant was charged with various counts of criminal sexual assault. Despite defendant’s denial of guilt, the charges may be upheld if there is “some corroboration of the prosecuting witness or where that testimony is otherwise clear and convincing.” (People v. Geneva (1990), 196 Ill. App. 3d 1017, 1026.) An even more recent case reads: “If the victim’s story is consistent and any discrepancies do not detract from its reasonableness, the victim’s testimony can be clear and convincing.” People v. Stengel (1991), 211 Ill. App. 3d 337, 345.

Here, complainant gave a thorough account of the incident which took place on November 23, 1988. There was also corroboration of her account by her mother with whom she spoke over the telephone shortly after the rape. O’Reilly, who let complainant use his telephone when she banged on his door for help, corroborated her story. Complainant’s story was also corroborated by Officer Tribe, who responded when complainant’s mother reported the incident to the police.

Defendant argues that he did not physically force complainant to perform any sex acts. The facts of each individual case are examined when determining the force required to sustain a rape conviction. (People v. Geneva (1990), 196 Ill. App. 3d 1017, 1027.) A recent explanation of the threat of force is as follows:

“Currently, relative to the issue of force, failure to cry out or failure to resist does not establish consent in sex cases if the woman is threatened or in fear of being harmed. Even disrobing and a plea not to be hurt have been held insufficient to negate force or lack of consent.” People v. Stengel (1991), 211 Ill. App. 3d 337, 345.

In the instant case, defendant showed complainant a badge, told her he was an undercover policeman and threatened to arrest her for prostitution and take her baby away if she did not cooperate. At this point, she was in a moving car and her baby had been thrown into the back seat. In response to her pleas, the defendant continued his threats to take her to jail and have her baby taken from her. Complainant’s testimony established defendant’s use of force to sexually assault her.

The physical evidence also supports complainant’s version of the story. She was handcuffed to the steering wheel of defendant’s car while he went to register at the hotel. This was complainant’s first opportunity to escape and she did so. However, she suffered scratches and scarring to her hand as she squeezed it through the handcuff. These injuries were noted by complainant’s mother later at the hospital and by Officer Tribe. The physical evidence in addition to complainant’s testimony establishes defendant’s guilt beyond a reasonable doubt.

Second, defendant contends that the trial court erred in admitting evidence of an eight-year-old incident where defendant posed as a peace officer and attempted to force a woman and her young child into his car. One of the cases defendant cites to support his argument is People v. Gibbs (1992), 226 Ill. App. 3d 1068. However, Gibbs may be distinguished from the instant case. In Gibbs, the trial court improperly relied upon the rule formulated in People v. Montgomery (1971), 47 Ill. 2d 510. The Gibbs court stated the Montgomery rule as follows:

“[Pjrior convictions may be admitted if (1) the prior offense was punishable by imprisonment in excess of one year or involved dishonesty, and (2) if either the conviction or the release from confinement occurred within the preceding 10 years. If these two requirements are met, the trial court must then weigh the probative value of the evidence against what prejudicial effect the evidence might have on the trier of fact.” (Gibbs, 226 Ill. App. 3d at 1072.)

This rule was not applicable in our case, and the trial court did not rely on it when admitting the testimony of Huertas. Further, the earlier incident involving Gibbs was not found similar enough to the incident on appeal to merit admission under the other crimes rules. Unlike the court in Gibbs, we find the testimony concerning defendant’s previous incident to be remarkably similar to complainant’s testimony as to what occurred on the evening of November 23,1988.

The prosecution may admit evidence of other crimes, wrongs or acts when relevant for any other purpose than to show a disposition to commit crime, such as modus operandi, intent, identity, motive or absence of mistake. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5 (5th ed. 1990).) In the instant case, the State argues that the testimony of Huertas was admissible to show any absence of mistake and modus operandi.

The conflict within the first district on the issue of the admissibility of “other crimes” evidence was explained in People v. Brown (1991), 214 Ill. App. 3d 836, 845. Brown cited People v. Barbour (1982), 106 Ill. App. 3d 993, for the proposition that testimony will not be admitted under the modus operandi exception unless the identity of defendant is at issue. The alternative proposition is based on the holdings in People v. Fuller (1983), 117 Ill. App. 3d 1026, and People v. Kimbrough (1985), 138 Ill. App. 3d 481. Brown summarized the reasoning in Fuller and Kimbrough as follows:

“These courts reasoned that the relevancy of modus operandi evidence is not limited to the identity of the accused, but is also relevant and admissible on the distinct issue of whether a crime was committed at all.” (People v. Brown (1991), 214 Ill. App. 3d 836, 845.)

Brown found that the latter proposition has been more frequently adopted by our appellate courts.

Here, there are definite similarities between the crime charged and the incident described by Huertas. Complainant and Huertas were both minority women in their midtwenties and both had a young child with them at the time they were approached by defendant. Defendant showed both women a fake silver star badge. Defendant asked both women for money. Finally, both incidents occurred on a weekday afternoon within a few blocks of each other. In reviewing the admission of evidence, we will defer to the discretion of the trial court unless an abuse of discretion has been shown. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 490.) In this case, we find that the “other crimes” testimony proved defendant’s modus operandi, which bears upon his guilt. Thus we hold that the trial court has not abused its discretion.

Defendant’s third contention on appeal is that the trial court erred in admitting complainant’s statements to her mother, overheard by a witness for the State. Defendant now argues that O’Reilly’s recounting of complainant’s telephone conversation with her mother constituted inadmissible hearsay which resulted in defendant being denied a fair trial.

The law is clear with respect to what is necessary to preserve a question for review on appeal. “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Defendant failed to object to O’Reilly’s testimony at trial. Further, the record does not indicate any discussion of this issue in defendant’s post-trial motion. We therefore find that the issue is waived on appeal.

However, defendant then argues we should review this issue under the plain error doctrine. This doctrine allows evidence that is ordinarily waived on review to be admissible if the evidence is so closely balanced that the conviction may have been due to error that is evident from the record or the error resulted in defendant being denied a fair trial. (People v. Palmer (1989), 188 Ill. App. 3d 414, 422.) In the instant case, we do not find that the evidence was so closely balanced as to merit review under the plain error doctrine. Thus, defendant’s argument concerning O’Reilly’s testimony is waived on appeal.

Defendant’s next argument on appeal is that the prosecutor’s comments during closing arguments denied defendant a fair trial. Again defendant failed to preserve this issue for appeal. He neither objected at trial nor raised the issue in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) In response, defendant argues that this issue should be reviewed under the plain error doctrine. Here we find that the evidence is not so closely balanced as to merit review under this doctrine.

The comments made by the prosecutor during closing arguments read as follows:

“Now you’ve heard the whole nightmare; all the evidence is in. [Complainant] has come in here and told you about what’s probably the most awful and embarrassing thing she’s ever had to tell anyone about, to you strangers. It is hard to imagine something such as this if you’ve never experienced it, but try if you can to think of the humiliation and the shame and disgust [complainant] felt being raped by this man (Indicating) and the continued shame, humiliation she’s had to go through since then.”

Prosecutors are given wide latitude in their closing arguments, and the propriety of their comments is left to the discretion of the trial court. (People v. Howard (1991), 209 Ill. App. 3d 159, 182.) Here, the trial court did not find that the comments made were improper nor did the defense counsel choose to object to the comments at the time of trial. A recent first district case explains what is necessary to effect a reversal in this instance. It reads as follows:

“To merit a reversal a prosecutor’s improper comments must be of ‘substantial magnitude’ when viewed in the context of the entire record and argument. [Citation.] If the improper comments did not constitute a material factor in the conviction of the defendant, the verdict will not be disturbed.” (People v. Graca (1991), 220 Ill. App. 3d 214, 221.)

Here, we find that the prosecutor’s comments did not constitute a material factor in the conviction of defendant. Given this reason and the fact that this issue is waived on appeal, we will not disturb the decision of the trial court.

The fifth issue on appeal is whether the trial court abused its discretion by imposing a sentence above the minimum statutory requirement. Courts of review give deference to a trial court’s sentencing decisions. (People v. Streit (1991), 142 Ill. 2d 13, 18.) In order to determine whether a sentence is excessive, this court must ask whether the trial court abused its discretion.

In the instant case, defendant was sentenced to 16 years in the Illinois Department of Corrections. A sentence of imprisonment for a Class X felony is between 6 and 30 years. Thus, defendant’s 16-year sentence is entirely within the statutory limits. The record indicates that, in determining the sentence, the trial judge considered the circumstances of the incident, defendant’s background, as well as defendant’s lack of remorse. The reasons for giving great weight to the considerations of the trial judge are as follows:

“A trial judge is in a far better position than an appellate court to fashion an appropriate sentence, because such judge can make a reasoned judgment based upon firsthand consideration of such factors as ‘the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age’ [citation]; whereas the appellate court has to rely entirely on the record.” People v. Streit (1991), 142 Ill. 2d 13, 19.

In the case at bar, the judge was able to make his determination based on firsthand knowledge of defendant. Further, in balancing the factors listed above, the trial judge gave defendant a sentence that was within the statutory limits. As a court of review, we will not overturn defendant’s sentence merely because our weighing of the relevant factors might have been different. (See Streit, 142 Ill. 2d at 19.) We therefore affirm defendant’s sentence.

For his sixth issue on appeal, defendant wants this court to consider the cumulative effect of all of the previously mentioned errors. He argues that their cumulative effect was to deny him a fair trial. We disagree.

In some circumstances, “trial errors may have a cumulative effect when considered together.” (People v. Albanese (1984), 102 Ill. 2d 54, 83.) We find that the errors did not have that effect in this case. The first district has stated that “[although defendant is guaranteed a fair trial, this does not mean that the trial must be perfect.” People v. Olesch (1986), 143 Ill. App. 3d 577, 588.

Here, complainant’s testimony was detailed in describing what happened on that night in November, after she had accepted a ride from defendant. The law concerning the validity of complainant’s testimony is as follows: “[T]he testimony of a single witness is sufficient to convict if the witness is credible and if the witness viewed defendant under conditions permitting a positive identification to be made.” People v. Williams (1991), 221 Ill. App. 3d 1061, 1067.

In the instant case, complainant was able to give a detailed account of the sexual assault. Throughout her contact with defendant, he never attempted to cover his face. Thus, complainant was not only able to identify defendant’s car, but she was also able to identify defendant himself when the police brought him out of the tavern. Further, complainant’s mother, O’Reilly, and Officer Tribe were able to testify concerning complainant’s hysterical behavior shortly after the incident. We therefore find that due to the overwhelming evidence of defendant’s guilt, any possible errors at trial could not have tainted the jurors’ perceptions to the point that defendant was unable to receive a fair trial.

Finally, defendant contends that he was entitled to a hearing regarding his fitness to stand trial. This is another issue that defendant failed to preserve for review with an objection at trial or a post-trial motion. See People v. Enoch (1988), 122 Ill. 2d 176, 186.

However, the statutory presumption is that a defendant charged with a criminal offense is fit to stand trial. (Ill. Rev. Stat. 1987, ch. 38, par. 104—10.) The record gives no indication that defendant was unfit to stand trial. There is no indication that defendant was unable to comprehend the proceedings during the course of the trial. Further, the statutory entitlement to a fitness hearing while under medication (Ill. Rev. Stat. 1987, ch. 38, par. 104—21) does not require the court to order one on its own motion.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN DOE, Plaintiff-Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—1094
    Opinion filed November 12, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Julia Mannix, of Davis, Mannix & McGrath, of Chicago (David E. Kendall, Betsy K. Wanger, and Williams & Connolly, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Dr. John Doe (a pseudonym), brought an action to enjoin defendant, the Illinois Department of Professional Regulation (hereinafter the Department), from filing an administrative complaint against him for violating section 22 of the Medical Practice Act of 1987 (hereinafter the Act) (Ill. Rev. Stat. 1987, ch. Ill, par. 4400—22). The circuit court entered summary judgment and permanently enjoined the Department from bringing an administrative complaint against plaintiff due to the Department’s lack of jurisdiction. The circuit court based its decision on the five-year statute of limitations contained in the Act.

The sole issue on appeal is whether the trial court erred in deciding that the Department lacked jurisdiction to bring an administrative complaint against plaintiff based on the five-year statute of limitations for disciplinary actions pursuant to the Act.

We reverse and remand.

Plaintiff is a physician licensed in Illinois and specializing in psychiatry and psychoanalysis. Plaintiff treated a patient for depression from 1969 to February 1980. While undergoing treatment, plaintiff’s patient, acting through her own attorneys and financial advisors, established a trust fund providing plaintiff with an annual annuity of $50,000. It was irrevocable without plaintiff’s consent, and continued until 1989 when the trust assets were exhausted. A second trust was established in 1978. This trust was revocable by the patient upon two years’ notice. However, it was not revoked by the patient at the time of her death. Plaintiff received an annual payment of $30,000 to continue until his death.

On February 6, 1990, plaintiff’s attorney received a draft complaint to be filed by the Department alleging ethical misconduct on the part of plaintiff. Count I alleged that plaintiff’s receipt of funds from the 1976 trust from February 1985 to its termination violated section 22(A)(5) of the Act. (Ill. Rev. Stat. 1987, ch. Ill, par. 4400—22(A)(5).) Count II alleged the same violation concerning the 1978 trust. On April 6, 1990, the court granted plaintiff’s motion for a temporary restraining order to remain in effect until April 24, 1990. On that date, it was ordered that the parties conduct discovery and that the restraining order instituted on April 6, 1990, remain in effect until the next hearing on the matter.

On March 1, 1991, the circuit court granted plaintiff’s motion for summary judgment and permanently enjoined the Department from filing a claim on the 1976 and 1978 trusts. The circuit court found that the Department had no jurisdiction to file a complaint against plaintiff for any conduct occurring in 1976 or 1978 because of the five-year statute of limitations in section 22(A)(38) of the Act. The Department now appeals.

The Department’s authority to file a complaint against plaintiff pursuant to the Act is as follows:

“Except for the grounds numbered (8), (9) and (29), no action shall be commenced more than 5 years after the date of the incident or act alleged to have violated this Section.” (Ill. Rev. Stat. 1987, ch. Ill, par. 4400—22(A)(38).)

Plaintiff was informed that the Department may bring an action against him pursuant to the Act, which prohibits unethical or immoral conduct and the sale or distribution of drugs other than for medically accepted purposes. Statutes of limitation are “designed to prevent recovery on stale demands.” (Pfeifer v. Bell & Howell Co. (1977), 53 Ill. App. 3d 26, 27.) As set forth below, plaintiff’s argument provides an interpretation of the statute of limitations that prohibits the Department from pursuing its administrative complaint against plaintiff.

Plaintiff finds no merit in the Department’s contention that its complaint should not be barred because plaintiff received trust annuities within the five years prior to 1990. Plaintiff finds support for his argument in Brehm v. Sargent & Lundy (1978), 66 Ill. App. 3d 472, and Kopel v. Board of Education (1971), 1 Ill. App. 3d 1083. However, both of these cases can be distinguished.

Brehm discusses whether an employee’s suit requesting a declaratory judgment entitling him to a pension is barred by the statute of limitations because it was filed 13½ years after the employee’s retirement. There, the plaintiff relied on the rule that when there are installment payments the statute of limitations runs against each installment individually. However, this court differentiated between an action to determine the existence of the right to a pension from an action to recover installments after the pension has been granted. This court found that “the right to receive the pension must be established by suit or otherwise, within the original statutory period which begins to run when the plaintiff first has the power to make the demand.” (Brehm, 66 Ill. App. 3d at 474.) Therefore, this court affirmed the determination of the trial court that plaintiff’s suit was barred by the statute of limitations.

Kopel v. Board of Education (1971), 1 Ill. App. 3d 1083, also involves the statute of limitations. In Kopel, plaintiff requested compensation for his services on a special research project in addition to his regular salary as a certified teacher. In a written reply, his request was refused. Plaintiff filed suit 10 years and 5 months after the receipt of the letter. The appellate court affirmed the trial court ruling that plaintiff’s suit was barred by the statute of limitations.

The plaintiff in Brehm was requesting a pension 13½ years after first having had the “power to make the demand.” In the instant case, the Department had no knowledge of the trusts until years after their creation. In Brehm, as well as in Kopel, the plaintiff was aware of the existence of a pension and of the letter. In these cases, there was knowledge of an immediate and complete event which required a timely response. By the time of their respective suits, the event had already occurred and because of their delay plaintiffs were subsequently barred by the statute of limitations.

In Brehm, plaintiff received no payments between the time of his retirement and 13½ years later when he filed suit. Likewise in Kopel, no payments were received between the time of plaintiff’s receipt of the letter and the 10 years and 5 months later when plaintiff filed suit. Here, plaintiff’s action is ongoing. His cashing of the check is an activity that is occurring in the present. Thus, the reason for finding that the Department’s claim is within the statute of limitations is because plaintiff’s alleged violations of the Act continued to take place within the limitations period and, with respect to the 1978 trust, continue to this day.

The first trust was established by plaintiff’s patient in 1976. It provided plaintiff with an annual annuity of $50,000. Plaintiff received payments from the trust fund until the assets were exhausted in 1989, well within the statute of limitations. However, the 1978 trust is still in effect and plaintiff will continue to receive payouts from it until his death.

The case most applicable to the Department’s position in this action is Abrahamson v. Department of Professional Regulation (1991), 210 Ill. App. 3d 354, appeal allowed (1991), 141 Ill. 2d 535. There, the plaintiff was denied a medical license by the Department because he was found to lack “moral character” and “ethical judgment.” The trial court reversed the denial and the Department appealed.

Plaintiff’s brief contends that Abrahamson is inapplicable because it concerns licensing and the submission of falsified transcripts. The specific allegation against Abrahamson was that he had a fraudulent transcript printed. It was never alleged that Abrahamson used the transcript in establishing his academic credentials or in applying for the license. In fact, his attorney submitted an affidavit from the director of his medical school “certifying that the false transcript was never used by Abrahamson to obtain academic credit” at the school. (Abrahamson, 210 Ill. App. 3d at 361.) In Abrahamson, plaintiff contended that the charge against him of having a fraudulent transcript printed was barred by the statute of limitations. He cited the five-year statute of limitations provided in the Act. (Ill. Rev. Stat. 1987, ch. 111, par. 4400—22(A)(38).) The court responded as follows:

“The running of the statute of limitations against the DPR [Department of Professional Regulations] should not begin until the DPR knew or, at least, should have known of the alleged actions of the plaintiff in ordering the *** transcript. There was no reason for the DPR to know of the existence of the *** transcript and its significance until the plaintiff applied for a license.” Abrahamson, 210 Ill. App. 3d at 364.

In the instant case, the record does not specifically state when the Department was notified or discovered plaintiff's alleged violations of the Act. Yet, upon being so informed, the Department notified plaintiff of its plans to issue a formal complaint against him under the Act. Further, the circuit court never discussed the issue of the Department’s notification. Finally, in plaintiff’s motion, there were no allegations that the Department knew or should have known for more than five years of plaintiff’s receipt of funds from these trusts. Therefore, the statute of limitations can only be expected to begin running against the Department when it knew or reasonably should have known about plaintiff’s alleged violations.

With respect to the question of jurisdiction, the Department contends that the trial court erred in finding that it had no jurisdiction due to the Department’s attempt to bring a cause of action beyond the statutory limitation of five years. The record indicates that the trial court noted that plaintiff did nothing to prevent the Department from finding out about the existence of the trusts or the funds received by plaintiff. However, the Department is responsible for instituting all necessary disciplinary action against a great number of professionals. The scope of its power is as follows:

“A. The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery ***.” (Ill. Rev. Stat. 1987, ch. 111, par. 4400-22(A).)

It would be illogical to have expected the Department to prompt an investigation of plaintiff without any reasonable suspicion as to his activities.

Enforcement of the statute of limitations should prompt the court to balance the Department’s right to bring a cause of action with the plaintiff’s right to be free from stale claims. In the case at bar, public policy should allow the Department to pursue a cause of action when it knew or should have known of an alleged violation of the Act and only at that time should the statute of limitations begin to run against the Department.

For the foregoing reasons, we reverse the decision of the circuit court and we remand the cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

LINN and McMORROW, JJ., concur.


author: JUSTICE LINN

text:
    PATRICIA GLASS, Plaintiff-Appellant, v. MORGAN GUARANTY TRUST COMPANY, as Trustee, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—2793
    Opinion filed November 12, 1992.

      Paul W. Grauer &' Associates, of Schaumburg (Paul W. Grauer and William S. Robinson, of counsel), for appellant.
    Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Sarah Hansen Sotos and Janella L. Barbrow, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Patricia Glass, filed this action to recover damages for injuries she sustained after falling down steps located in the food court of Randhurst Shopping Center in Mount Prospect, Illinois. She alleged various defects in the design of the stairs owned and maintained by a group of defendants including Morgan Guaranty Trust Co. and collectively referred to in her complaint as “Randhurst.” Randhurst filed a motion for summary judgment, which the trial court granted. Plaintiff appeals.

We affirm.

Background

On January 13, 1988, Patricia Glass purchased food at a self-serve food court in Randhurst Shopping Center. There were tables and chairs on the same level as the food vendors and a lower level with additional seating. Glass approached the five-step flight of stairs to the lower level, pausing and looking down before descending. Both of her hands were full; she held a salad in one hand and a drink in the other. After taking two or three steps, she fell to the bottom.

The stairs in question are covered with brown ceramic tiles surrounded by grout lines. Glass stated in her deposition that she had had trouble in the past with the stairs because of their “steepness.” She also said it was hard to define where each step stopped and started because of their uniform color and the pattern of the grout lines. She admitted she did not see any chipped or loose tile or other physical defect in the stairs. She did not slip on food or any other substance on the steps.

Randhurst filed its motion for summary judgment after taking discovery. Glass did not identify an expert witness to establish any of the alleged design defects of the staircase. Randhurst argued in the motion that Glass had failed to produce “facts indicative of a tort duty” and “facts indicative of a proximate causal connection” between Randhurst’s conduct and Glass’ fall.

The complaint alleges the existence of design defects in the configuration of the “stair system,” including the rise angle of the steps and the placement and design of the handrails. Certain allegations state that the relationship of the rise height to the tread depth violated safe engineering and architectural standards, causing Glass to “fall forward, which in combination with the improper rise angle and improperly configured handrail caused [Glass’] injuries.” Another allegation is Randhurst’s failure to warn customers of the “dangerous system.” The final assertion of negligence is based on the supposedly deceptive appearance of the stairs. This paragraph of the complaint is the focus of this appeal and states as follows:

“[I]n addition to the above design defects, the stairway system was negligently built with ceramic tile of uniform ‘brownish’ color and appearance such that the user of the stairway could not readily perceive the nose (front edge) of each particular stair or step; and the defendants did not paint, stripe, or otherwise mark the nose of the steps such that they could be readily perceived by plaintiff and other users who were attempting to carry food from the upper to the lower level; and such defect when combined with the above defects caused plaintiff to fall forward down the stairway.”

Opinion

In opposing Randhurst’s motion for summary judgment, Glass had the burden of providing a factual basis on which to assert the elements of a cause of action in negligence; a duty, breach of that duty, and injury proximately resulting from the breach. (Fahey v. State & Madison Property Association (1990), 200 Ill. App. 3d 437, 440, 558 N.E.2d 192, appeal denied (1990), 135 Ill. 2d 555, 564 N.E.2d 836.) In this appeal she states that her deposition testimony provides “ample evidence” and cites her past “trouble” with the stairs, which caused her to “stop and get her bearings” before descending. She found them “steeper than stairs she normally confronted in everyday life” and found them “deceptive” due to the combination of the brown color of the stairs and the “numerous grout lines” in the tiles of the steps, which made it “difficult to distinguish the leading edge of each stair.”

In response, Randhurst maintains that the record fails to establish any facts indicative of a duty on its part to reconfigure the stairs, warn users of the stairs, or mark the nose of each step. Randhurst notes that stairs, by their very nature, create the risk that persons using them might be injured by a fall. That does not make them unreasonably dangerous, however. Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 6, 540 N.E.2d 823 (Open stairway to basement that was directly adjacent to garage entrance did not create unreasonable risk absent facts that stairway was masked or obscured; they were “just stairs”); see also Robinson v. The Suitery, Ltd. (1988), 172 Ill. App. 3d 359, 526 N.E.2d 566 (Defendant had no duty to wrap broken glass before placing it in dumpster shared by others).

Glass nonetheless contends that Randhurst breached its duty of reasonable care under the Illinois Premises Liability Act (Ill. Rev. Stat. 1991, ch. 80, par. 302) “by providing a stairway in its food court area that was not reasonably safe for customers to use while carrying food items.” According to Glass’ deposition testimony, she had noticed problems with the stairs in the past and thought they were too steep. She said the grout lines around the tiles created an optical illusion that made it difficult for her to distinguish the edge of each step. She further contends that the upper bannister or handrail was too wide for her to grasp as she fell, which increased the dangerous condition of the steps.

We address the last point first. The stairway has two sets of rails, an upper bannister and a lower handrail. According to the complaint, the lower handrail is for children and the higher one is for adults, rising approximately feet above the steps. Glass maintains that the adult bannister “was much too wide for her to grasp” as she fell. Therefore, she contends, they were unreasonably dangerous.

We must reject this argument. She did not produce any expert affidavits or other evidence to support the bare assertion that the width of the rail made it unreasonably dangerous because a human hand could not grasp it while falling. Moreover, she admittedly had both hands full, which meant that she was not using the bannister to aid her descent. We must conclude, therefore, that nothing in the record establishes a triable issue as to the condition of the handrails. See, e.g., Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 540 N.E.2d 823 (Where stairs on which plaintiff fell were not configured in a way that obscured them and no expert testimony was offered, court would affirm summary judgment in favor of defendant landowner); Fahey v. State & Madison Property Association (1990), 200 Ill. App. 3d 437, 558 N.E.2d 192 (Summary judgment properly entered in favor of property owner on grounds there was no duty, either under premises liability statute or common law, to provide handrails for steps in restroom).

We need not discuss the allegations relating to the height of the risers and the depth of the treads because Glass did not identify an expert witness to substantiate them. Nor did she identify any engineering and architectural standards that allegedly were violated.

The remaining allegations of liability relate to what Glass terms an optical illusion, which she says caused the steps to blend together visually. She contends that this illusion was caused by the uniform color of the tiles and the appearance of the grout lines. She further alleges that Randhurst had a duty to warn her of the attendant dangers.

While Glass claims that her fall was caused by her inability to discern where one step ended and the next began, she has not cited any case that has imposed a duty on a landowner to use different colors on stair treads or to paint a contrasting stripe on the nose of each stair to better distinguish it from the next. She does cite cases in which stairways were found to be part of an unreasonably dangerous condition. In each case, however, the steps were found to pose an unreasonable risk of harm for reasons not present in the pending case. E.g., Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146 (Restaurant patron fell down stairs that were concealed by a closed door; no warning of existence of steps beyond door was posted); Kittle v. Liss (1982), 108 Ill. App. 3d 922, 439 N.E.2d 972 (Tavern patron slipped and fell on icy patch of outside steps after tavern turned off lighting); Halpin v. Pekin Thrifty Drug Co. (1967), 79 Ill. App. 2d 153, 223 N.E.2d 708 (Customer walking in back area of store fell when elevation of floor dropped more than five inches; flooring on both levels was the same, there was no handrail, and plaintiff could not see where the level of the floors changed).

These cases do not aid Glass. True, in Halpin the court did consider the uniformity of color and flooring material as a contributing factor to the plaintiff’s inability to perceive the change in elevation. That case did not involve an open and obvious flight of stairs, however. Instead, the step in question was a single, 5½ inch “step-up” from one corridor onto the floor of a different room. The plaintiff negotiated the step on her way up, but when she was returning she could not readily determine where the change in elevation occurred. Both floors and the step were covered with the same material, which caused an unbroken visual flow from the higher plane to the lower one. There was no guard rail or other marker at that point, leading plaintiff to step off into “space.” Similarly, in Allgauer, the plaintiff stepped through a door, expecting a flat surface or landing, only to plunge down a stairway that had been concealed from view by the door.

None of the above cases hold that an open and obvious stairway is unreasonably dangerous solely because of the normal risks a person undergoes when using stairs. Instead, the steps that have been found unreasonably dangerous were hidden or obscured in such a way as to become a sort of trap for the unwary. In such cases, the landowners were chargeable with negligence for doing or failing to do something that made the stairs more dangerous than they would have been “just as stairs.” In the pending case, by contrast, it is undisputed that Glass saw the stairs, recognized them as stairs, and was using them with full knowledge of the risk of falling as she made her way down them. Indeed, she admitted she was familiar with the characteristics of these particular stairs from earlier experience.

Because the pending case does not involve a difficult-to-perceive change in elevation, inadequate lighting, a physical defect, or the absence of handrails, the sole basis of liability rests upon an argument that Randhurst should have provided a better visual contrast between the edges of the steps and the treads beneath. In the complaint, Glass charges that Randhurst did not “paint, stripe, or otherwise mark the nose of the steps so that they could be readily perceived.”

Glass’ position, we believe, goes beyond what the law requires of landowners who own or control stairways that are used by shoppers or other members of the public. Presumably, any set of stairs that is one solid color or that has linear patterns would be subject to a complaint similar to the one Glass makes here. People going down stairs are not limited in their visual perception to color or surface pattern, however, because the eye perceives spatial depth as well. We conclude that Randhurst cannot be held to have breached a duty of reasonable care on the sole ground that it did not paint or mark the nose of each step. (See Fahey, 200 Ill. App. 3d at 439 (Court dismissed all allegations of negligence involving stairs in washroom, including an allegation that landowner failed to “provide paint upon the stairs” to distinguish them from surrounding floor).) While Randhurst may have been able to devise ways to make its stairs safer, the law does not require a person to foolproof stairs against normal risks. As we noted in Robinson v. The Suitery, after reviewing precautions a person could take when disposing of broken glass in a common dumpster, “such practices may be desirable as a general proposition, [but] we do not believe that the law requires such extraordinary care in waste disposal.” Robinson v. The Suitery, 172 Ill. App. 3d at 363, 526 N.E.2d at 568.

We note also that Glass has framed Randhurst’s breach of duty as failing to make the steps reasonably safe for people descending the stairs while holding food. We decline to recognize the existence of a duty to make stairs safer for people who are holding objects in both hands instead of using the handrails. We conclude that the record does not establish the prima facie elements of negligence. Therefore, the trial court properly entered summary judgment in favor of Randhurst.

Because we have found no breach of duty regarding the configuration or appearance of the stairs, we further find there was no duty to warn. Indeed, Glass’ admission that she was aware of the perceived dangers obviates any duty Randhurst might have had to warn her of them. To support her position on the duty to warn, however, Glass relies on Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. In that case, a customer of K mart was injured when he walked into a post directly outside the exit of the store. Because he was carrying a large package he did not see the post in time to avoid it. The court considered the physical layout of the area and the fact that the particular exit was from a section of the store that sold a number of large items. The court held that the close proximity of the post to the exit made it dangerous to customers who, foreseeably, would be carrying large packages from that exit and whose vision might be impaired thereby. The simple displaying of a sign near the exit would remind distracted or forgetful customers.

In the pending case, however, Glass knew of the potential danger of the stairs and was closely observing them as she descended. Accordingly, a sign drawing her attention to them would have been pointless. We conclude that Randhurst owed her no duty to warn under these facts. (See also Amaral v. Woodfield Ford Sales, Inc. (1991), 220 Ill. App. 3d 357, 581 N.E.2d 19, appeal denied (1992), 143 Ill. 2d 635, 587 N.E.2d 1011 (Summary judgment for defendant affirmed where business invitee was fully aware of the potential danger in walking on concrete floor coated with radiator fluid); Wadycki v. Vanee Foods Co. (1990), 208 Ill. App. 3d 492, 567 N.E.2d 423 (Summary judgment affirmed where plaintiff was fully aware of potential danger in putting weight on a loose piece of cardboard protruding from back doors of trailer while balancing on ladder).) The record in the pending case demonstrates that Glass’ fall on the stairs was not attributable to poor lighting; unsafe design; a physical defect of or condition on the steps themselves; concealment of changing elevations, or any other circumstance that might lead to a triable issue of fact as to the existence of an unreasonably dangerous condition.

Accordingly, we conclude that the trial court properly entered summary judgment in favor of Randhurst. See, e.g., Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 533 N.E.2d 486.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENRIQUE MONTES DE OCA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—1165
    Opinion filed November 12, 1992.
    Rehearing denied December 3,1992.

      Rita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Michael Falagario, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendant, Enrique Montes De Oca, was convicted of second degree murder after he admitted that he shot and killed Roberto Delgadello but claimed that he acted in self-defense. The trial court imposed a sentence of 15 years’ imprisonment, which is the maximum term allowed for an adult convicted of second-degree murder.

On appeal, defendant raises five issues regarding whether: (1) the trial court’s finding that defendant was the initial aggressor was manifestly erroneous; (2) the State disproved defendant’s assertion of self-defense beyond a reasonable doubt; (3) the trial court improperly placed the burden on defendant to prove his innocence; (4) the trial court properly prohibited defendant from testifying as to the contents of his prior statement to the police; and (5) the Illinois murder statute is constitutional.

Defendant also correctly asserted, and the State agreed, that the trial court improperly sentenced defendant as an adult. Defendant was 15 years old at the time of the crime and was charged with first degree murder. Pursuant to the automatic transfer provision in the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 805—4(6)(a)), defendant was properly prosecuted as an adult. After a bench trial, defendant was found guilty of first degree murder but on a motion to reconsider, his conviction was reduced to second degree murder. A minor must be sentenced under the terms of the Juvenile Court Act where the minor is prosecuted as an adult but is not convicted of an offense designated in the automatic transfer provision. (Ill. Rev. Stat. 1989, ch. 37, par. 805—4(6)(c).) Since second degree murder is not included in the automatic transfer provision, defendant should have been sentenced as a juvenile.

Following oral argument in this case, this court entered an order sua sponte that severed the issue of the improper sentencing of defendant from this appeal, remanded to the circuit court for an expedited resentencing hearing in accordance with the Juvenile Court Act, and directed the circuit court, in resentencing defendant, to grant him credit for time served or in custody.

As to the remaining issues on appeal, we affirm the defendant’s conviction and find that the Illinois murder statute is constitutional.

At trial, the State presented three witnesses: police officer Scott Slavin; Jaime Alvarez, who was a friend of defendant and an occurrence witness; and Jesus Delgadello, who was the cousin of the victim and also an occurrence witness.

The defense presented three witnesses: defendant; Ramon Garcia, who was a friend of defendant and an occurrence witness; and Hector Oliva, who was a spectator, not a participant in the incident.

Although the testimony was conflicting as to some specific details, all witnesses agreed on the events which resulted in the shooting at issue. Defendant, together with four other young men (Alvarez, Garcia, Jesus Avila and Carlos Castillo), was on the front porch of Carlos Castillo’s house. Roberto (the victim) and Jesus Delgadello (the victim’s cousin), accompanied by several other young men, approached the Castillo porch. Jesus Delgadello, by his own testimony, went with his companions to the Castillo porch to provoke a fight.

Thereafter, Jesus Delgadello engaged in a fistfight with Jesus Avila. The fistfight began in front of the Castillo house and continued while the crowd moved to the corner of the block. The “crowd” numbered between 10 and 30 persons according to the various testimony. After the crowd assembled at the corner, defendant somehow came into possession of a shotgun, then shot and killed Roberto Delgadello. Following the shooting, defendant fled and was eventually apprehended in California. Officer Slavin testified that he arrived at the scene approximately 30 seconds after the shooting and that no weapons were ever recovered.

As a witness for the State, Jaime Alvarez, a friend of Jesus Avila, testified that when the crowd was at the corner, the victim acted in a threatening manner by showing the handle of a gun which was in his waist band. Defendant, with a shotgun, then appeared behind Alvarez, waved the shotgun around, and ordered everyone to “get away.” Jesus Delgadello put his hands in front of defendant and attempted to calm him. The victim then reached for his waist and defendant shot him. While defendant was yelling and waving the shotgun, the victim said nothing nor did he draw a gun from his belt.

Alvarez further testified that while the fistfight was going on, the victim made threats in general, not to a specific individual, but defendant was not present when the victim made the verbal threats and showed his gun. However, Alvarez acknowledged that he was not in a position to see where defendant came from or what defendant saw and heard.

Jesus Delgadello testified that he saw defendant carrying a gun as defendant walked on the sidewalk from the Castillo house to the corner. The fistfight stopped because defendant then waved the weapon and ordered the crowd “to back up.” Defendant pointed the gun at Jesus Delgadello and Jesus asked him several times to put down the gun. Jesus Delgadello did not see a weapon in the victim’s possession that night and did not hear the victim threaten defendant.

Defendant testified that during the fistfight between Jesus Delgadello and Avila, the other members of the crowd “were kind of loud and started calling out names” during which time the victim was “arguing and threatening people *** saying that we were all next.” Defendant followed the fight to the corner but stated that he was unarmed. At the corner, defendant heard someone yell “go get a gun” and the victim “ran towards a vehicle.” Defendant stated that he was frightened when he saw the victim go toward the car. When the victim returned to the crowd, the fistfight had ended but the groups continued to argue verbally. Defendant claimed that he saw the victim “pulling out a gun *** from his waist band” and heard the victim say “I am going to kill you.” Defendant then picked up a shotgun which was inexplicably lying by a tree and shot the victim. Defendant testified that he did not know who owned the gun or who put the gun by the tree.

During cross-examination, defendant testified that the victim did not say anything to him when the victim came to the comer from the car but that defendant told the people in the crowd to “step back” and “get out of here.” After the shooting, defendant dropped the gun and fled.

As a witness for the defense, Ramon Garcia testified that he was on the Castillo porch with defendant when the Delgadellos arrived. As the fight moved toward the corner, Garcia heard someone yell “take out the gun” and then saw the victim run to a car but did not see what, if anything, the victim took out of the car. The victim returned to the crowd and stood in front of defendant. Garcia stated that he saw the victim pointing a gun at defendant and, until the shooting, did not know that defendant had a gun.

Hector Oliva testified that he lived across the street from the Castillo house and he saw more than 20 people assemble at the Castillo house on the evening of the shooting. When he saw two individuals begin to fight, Oliva went to his porch and watched. Oliva heard someone yell “get the gun in” and then saw a person, later identified as the victim, run to a van and return with his hand under his shirt. Oliva saw an unidentifiable object in the victim’s hand before the shooting.

On appeal, defendant first asserts that the trial judge erred in finding that defendant was the initial aggressor.

The trial court found that defendant’s testimony was “selective and evasive” and expressly rejected his version of how the gun appeared at the scene. The trial court stated “[tjhere’s no way in the world that this Court believes the testimony of the defendant that the gun was situated or laying [sic] by the tree in an incidental drop by someone.” After reviewing all the testimony and noting the contradictions, the court found defendant to be the initial aggressor, reasoning that the incident was “a classic situation where the initial aggressor bringing the gun accelerated the situation. If it had not been brought to the scene by [defendant] at that point perhaps what occurred would not have occurred.”

The issue of self-defense is always a question of fact determined by the trier of fact. (People v. Felella (1989), 131 Ill. 2d 525, 534, 546 N.E.2d 492; People v. Price (1987), 158 Ill. App. 3d 921, 926, 511 N.E.2d 958.) Specifically, whether the defendant was the initial aggressor, i.e., the one who provoked the fatal confrontation, is a question of fact to be decided by the trier of fact. (People v. Smith (1990), 195 Ill. App. 3d 878, 882, 552 N.E.2d 1061.) Since the testimony of the occurrence witnesses varied somewhat in the present case, the trial judge, as the trier of fact in a bench trial, must weigh the credibility of the witnesses, draw reasonable inferences from their testimony, and resolve conflicts in the evidence. (Felella, 131 Ill. 2d at 534.) Unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt, the trier of fact’s determination will not be disturbed on appeal. Felella, 131 Ill. 2d at 533-34.

Conduct which may qualify a defendant as the initial aggressor includes the act of pointing a loaded gun (People v. Barnard (1991), 208 Ill. App. 3d 342, 350, 567 N.E.2d 60; People v. Crum (1989), 183 Ill. App. 3d 473, 539 N.E.2d 196) or even the mere utterance of words (Barnard, 208 Ill. App. 3d at 350; People v. Santiago (1987), 161 Ill. App. 3d 634, 515 N.E.2d 228). Moreover, a nonaggressor has a duty not to become the aggressor. People v. Nunn (1989), 184 Ill. App. 3d 253, 269, 541 N.E.2d 182.

In the present case, the evidence reveals that the victim and his cousin, Jesus Delgadello, instigated the initial confrontation between the two groups of individuals when they assembled at the Castillo porch. However, the testimony also indicates that the fistfight had ended and then the situation transformed into a different encounter when defendant displayed a loaded shotgun and shouted at the crowd which had gathered at the comer. Although defendant did not provoke the fistfight, the right of self-defense does not justify killing the original aggressor after the aggressor abandons the quarrel or as an act of retaliation and revenge. See People v. Thornton (1962), 26 Ill. 2d 218, 222, 186 N.E.2d 239; People v. Huddleston (1988), 176 Ill. App. 3d 18, 34, 530 N.E.2d 1015.

In light of the conflicting evidence, the trier of fact’s duty to resolve such conflicts, and a reviewing court’s inability to substitute its judgment for that of the trial court where the evidence is conflicting, we find that the trial court did not err in finding that defendant was the aggressor at the time of the shooting.

Second, defendant contends that the State failed to disprove that he acted in self-defense. We disagree.

Self-defense is an affirmative defense (Ill. Rev. Stat. 1989, ch. 38, par. 7—14) which, once raised, places the burden on the State to disprove it beyond a reasonable doubt. People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.

The use of force is justified as self-defense where (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; (5) the person threatened must actually believe: (i) a danger exists, (ii) the use of force is necessary to avert the danger, and (iii) the kind and amount of force which he uses is necessary; and (6) the above beliefs are reasonable. (Crum, 183 Ill. App. 3d at 482.) The State carries its burden of proof where it is able to negate even one of the elements. People v. Tucker (1988), 176 Ill. App. 3d 209, 216, 530 N.E.2d 1079; People v. Greene (1987), 160 Ill. App. 3d 1089, 1096, 513 N.E.2d 1092; People v. Carter (1985), 135 Ill. App. 3d 403, 409, 481 N.E.2d 1012.

As we previously found, one element of self-defense was negated by the trial court’s finding that defendant was the aggressor at the time of the shooting and this finding was not so improbable as to raise a reasonable doubt of defendant’s guilt. Accordingly, the theory of self-defense is not available to defendant.

Third, defendant asserts that the trial court improperly shifted the burden to him to prove his innocence by stating in its findings:

“The whole thing in the Court’s opinion, hinges around the question of the gun. And how the gun got to the scene. There’s no way in the world that this Court believes the testimony of the defendant that the gun was situated or laying [sic] by the tree in an incidental drop by someone. The Court specifically rejects it.”

The State responds that by these remarks, the trial court was only commenting on defendant’s credibility and its disbelief of defendant’s version as to how the shotgun mysteriously appeared at the scene. We agree with the State.

At trial, defendant testified that he discovered the shotgun lying by the tree and did not know who brought the gun to the corner. In contrast, Jesus Delgadello testified that he saw defendant carrying the gun while defendant was walking on the sidewalk toward the corner.

The trier of fact may consider the probability or improbability of the defendant’s account, the circumstances surrounding the crime and the relevant testimony of other witnesses. (People v. Young (1989), 187 Ill. App. 3d 977, 984, 543 N.E.2d 986.) There is no obligation to believe or accept as true the testimony of the defendant concerning self-defense. People v. Belpedio (1991), 212 Ill. App. 3d 155, 161, 569 N.E.2d 1372; People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500; People v. Price (1987), 158 Ill. App. 3d 921, 926, 511 N.E.2d 958; People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.

We believe that the challenged remarks of the trial court referred to the conflicting testimony as to how the gun got to the scene, were an expression of the court’s disbelief of defendant’s version, and did not improperly shift the burden on defendant to prove his innocence.

Fourth, defendant contends that the trial judge erred in prohibiting defendant from testifying as to the content of his prior statement to the police. Defendant waived this issue by failing to make an offer of proof to the trial court.

If the exclusion of evidence is to be preserved as error on appeal, an offer of proof must be made to the trial court as to what the desired testimony would have been. People v. Faulkner (1989), 186 Ill. App. 3d 1013, 542 N.E.2d 1190; People v. Gordon (1980), 82 Ill. App. 3d 906, 403 N.E.2d 570; People v. Slaughter (1977), 55 Ill. App. 3d 973, 371 N.E.2d 666.

In making an offer of proof, counsel must explicitly state what the excluded testimony would reveal and not merely allude to or suggest what might be divulged by such testimony. (People v. Brown (1982), 104 Ill. App. 3d 1110, 1119, 433 N.E.2d 1081.) Absent a clearly articulated offer of proof, we need not consider whether the trial court erred. Brown, 104 Ill. App. 3d at 1119.

The record reveals that defense counsel did not make the requisite offer of proof and thus waived this issue.

However,' even if not waived, a witness generally may not offer extrajudicial statements for the purpose of corroborating his testimony given at the trial. People v. Clark (1972), 52 Ill. 2d 374, 389, 288 N.E.2d 363.

The record suggests that the purpose of the intended questions concerning defendant’s statement to the police was to show that defendant’s in-court testimony was consistent with his prior statement to the police. Prior consistent statements are only admissible when they are necessary to rebut an allegation that the witness was motivated to lie or his testimony is of recent fabrication. People v. Klinkhammer (1982), 105 Ill. App. 3d 747, 749, 434 N.E.2d 835.

Lastly, defendant asserts that the Illinois murder statute (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1, 9—2) violates the Federal and State constitutional rights to due process of law and thus is unconstitutional.

The arguments advanced by defendant have been repeatedly rejected, as acknowledged by defendant, in numerous appellate decisions. (See People v. Collier (1992), 228 Ill. App. 3d 159, 161, 592 N.E.2d 444, citing People v. Guidry (1991), 220 Ill. App. 3d 406, 581 N.E.2d 38; People v. Brown (1991), 218 Ill. App. 3d 890, 578 N.E.2d 1168; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242; People v. Hrobowski (1991), 216 Ill. App. 3d 711, 575 N.E.2d 1306; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Collins (1991), 213 Ill. App. 3d 818, 572 N.E.2d 1005; People v. Lyons (1991), 213 Ill. App. 3d 617, 572 N.E.2d 1163; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335; see also People v. Mitchell (1991), 221 Ill. App. 3d 926, 583 N.E.2d 78.) We find no basis to reconsider these prior rulings.

Judgment affirmed.

RIZZI and TULLY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TODD WASHINGTON, Defendant-Appellee.
    First District (4th Division)
    No. 1—92—0630
    Opinion filed November 12, 1992.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Laura Bertucci, Assistant State’s Attorneys, of counsel), for the People.
    Rita A. Fry, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Todd Washington was charged by information with possession of less than 15 grams of cocaine with the intent to deliver. A hearing on defendant’s motion to suppress was conducted on January 21, 1992, and the trial court sustained the motion. On appeal, the State contends that the order suppressing the evidence was manifestly erroneous because the evidence was in plain view when seized.

Background

At the hearing, Officer Hardy White testified that he and five other officers traveled to 5100 South State Street in the Robert Taylor public housing development around 2:15 p.m. on September 12, 1991. Officer White testified that he had received information that an individual wearing a black jogging suit was selling narcotics outside that address. He received this information from a police employee who reported that the tip arose from the Chicago Housing Authority (CHA) hotline, a telephone line provided so that CHA residents could contact the police with information concerning criminal activity. Officer White did not reveal when he received the information nor when the call to the CHA hotline was received. In addition, he did not have any information concerning who made the call.

Upon arrival at the location, Officer White saw defendant sitting outside the building. As the plainclothes officer exited the unmarked vehicle, defendant ran into the building. Defendant was subsequently apprehended inside the building. At this time, Officer White asked defendant his name and address. While they were talking, White observed a plastic bag protruding from defendant’s waistband. White then removed the plastic bag.

On cross-examination, Officer White testified that he had also been informed that, according to the hotline report, the black jogging suit had gold lettering on the back which read “Clubs For All Reasons.” He added that defendant was wearing a black jogging suit and the lettering on the back matched the description. Officer White also testified that defendant stopped inside the building because officers were approaching from two directions. He observed about three inches of the plastic bag protruding from defendant’s waistband, but was unable to see the contents of the bag.

Officer White testified that he had been a police officer for 23 years and had made more than 300 drug-related arrests. He further testified that cocaine is frequently packaged in small, transparent, plastic bags. When he removed the plastic bag from defendant’s pants, he expected to find some type of controlled substance. The bag contained 54 smaller bags each of which held white “rock” cocaine.

On redirect examination, Officer White responded that he had seen sandwich bags such as the one seized from defendant used to hold cocaine, heroin and sandwiches. He further testified that he did not see any of the smaller bags which he described as being commonly used to hold cocaine until he removed the plastic bag from defendant’s pants.

Opinion

The State contends that the trial court’s determination was erroneous because the seized evidence was admissible pursuant to the plain view exception to the warrant requirement. Defendant contends that this argument is waived.

Initially, we note that issues not presented to the trial court are generally deemed waived on appeal. (People v. O’Neal (1984), 104 Ill. 2d 399, 407, 472 N.E.2d 441; People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871.) The principle of waiver applies to both the defendant and the State in a criminal case. O’Neal, 104 Ill. 2d at 407; Holloway, 86 Ill. 2d at 91.

Our review of the record reveals that although the State did not use the words “plain view” during argument at trial or upon its oral motion for review, the doctrine was presented to the court. Specifically, the assistant State’s Attorney argued that the police officer properly conducted a field interview with defendant and while questioning defendant, the officer saw a portion of a plastic bag protruding from defendant’s waistband. The prosecutor then noted that the officer testified that he had previously seen narcotics packaged in plastic bags on numerous occasions. This argument, as discussed below, sets forth the requirements for the plain view exception. Thus, we find that the instant case does not mandate application of the waiver rule simply because the prosecutor did not specifically identify this argument using the words “plain view.”

We now turn to the merits of the State’s contention on appeal. We note that in reviewing a trial court’s determination on a motion to suppress, the reviewing court will not reverse such determination unless it is manifestly erroneous. People v. Chavez (1992), 228 Ill. App. 3d 54, 66, 592 N.E.2d 69.

The fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution do not prohibit all searches made without a warrant, but only those which are unreasonable. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6; California v. Acevedo (1991), 500 U.S. 565, 114 L. Ed. 2d 619, 111 S. Ct. 1982; People v. Stout (1985), 106 Ill. 2d 77, 86, 477 N.E.2d 498.) It is clear that when Officer White removed the plastic bag from defendant’s waistband, he had no warrant to sanction that conduct. Consequently, we must determine whether the seizure was reasonable.

The State argues that the seizure of the plastic bag was justified under the plain view exception to the general warrant requirement. We agree.

In Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301, the Supreme Court discussed the factors necessary in order to validate a warrantless seizure under the plain view doctrine and held that the admission of such evidence requires only that the initial intrusion was lawful and that it was immediately apparent to the officers that the observed item may be contraband or evidence of a crime. (Horton, 496 U.S. at 142, 110 L. Ed. 2d at 126, 110 S. Ct. at 2310.) This decision specifically rejected the requirement that the discovery of the evidence be inadvertent as previously stated in Coolidge v. New Hampshire (1971), 403 U.S. 443, 469, 29 L. Ed. 2d 564, 585, 91 S. Ct. 2022, 2040. In addition, there must be probable cause to associate the property with criminal activity. Arizona v. Hicks (1987), 480 U.S. 321, 326, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153.

Considering the first element in this analysis, we note that a warrantless stop may be justified where the police come across evidence while in “hot pursuit” of a fleeing suspect. See Warden v. Hayden (1967), 387 U.S. 294, 298-99, 18 L. Ed. 2d 782, 787, 87 S. Ct. 1642, 1645-46.

In the instant case, the evidence presented to the trial court established that the officers went to 5100 South State Street based upon a tip that narcotics were being sold outside the building by a person wearing a black jogging suit with gold lettering on the back which read “Clubs For All Reasons.” When the police arrived, they observed the defendant sitting outside. Defendant was wearing a black jogging suit with gold lettering which matched the description received by the police. As Officer White exited his unmarked vehicle, defendant ran into the building and was subsequently apprehended. While asking defendant his name and address, Officer White observed about three inches of a plastic bag protruding from defendant’s waistband. Thereafter, White removed the plastic bag. This evidence established that the initial stop was lawful because it was effected while the police were in “hot pursuit” of defendant, who had begun to flee as soon as he saw the officers.

Our examination of the record also reveals that the second element in this analysis was satisfied. The evidence presented demonstrates that it was immediately apparent to the police that the plastic bag might contain contraband. Officer White testified that he had made over 300 drug-related arrests during his 23 years on the force. Based upon this experience, he was aware that cocaine was frequently packaged in small, transparent, plastic bags. Officer White testified that although he was unable to see the contents of the bag, he expected to find some type of controlled substance when he removed the plastic bag. Thus, the uncontradicted testimony of this experienced officer established that he believed the plastic bag contained contraband. (See People v. Morales (1991), 221 Ill. App. 3d 13, 19, 581 N.E.2d 730.) It is also significant that the plastic bag was recovered from defendant’s waistband rather than from his pocket or his hand.

Finally, we hold that the testimony of Officer White established that he had probable cause to believe that the plastic bag was associated with criminal activity.

Based upon the facts and circumstances surrounding the discovery of this evidence, we conclude that the record supports a finding that the plastic bag was properly seized under the plain view doctrine and that the officer had probable cause to believe that the bag contained contraband. We hold, therefore, that the trial erred in granting defendant’s motion to suppress.

For the forgoing reasons, the order of the circuit court of Cook County is reversed, and the cause remanded.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE LORENZ

text:
    MARTHA WHITING, Plaintiff-Appellant, v. PRESTIGE CASUALTY COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—1022
    Opinion filed November 13, 1992.
    Susan J. Pappas, of Dombrowski & Sorensen, of Chicago, for appellant.
    Kathleen M. Kenny, of Malek & Wein, P.C., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Martha Whiting, appeals from the dismissal of her declaratory judgment complaint under section 2 — 615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615(e)) for failing to demand arbitration within the time set in her car insurance policy with defendant, Prestige Casualty Company. We consider whether the policy required plaintiff to demand arbitration within two years of the accident as a condition precedent to uninsured motorist coverage. For the following reasons, we reverse and remand.

Plaintiff was involved in a car accident on June 21, 1987, and allegedly suffered personal injuries. She sued the driver of the other car on December 6, 1988, but was unable to obtain service on .her. The status of that case is not apparent from the record on appeal.

On June 13, 1990, plaintiff filed this action against defendant for a declaration of her right to arbitrate under the car insurance policy. She alleged that she was injured in the accident but did not learn until March 15, 1990, that the driver of the other car was uninsured. On March 21, 1990, two years and nine months after the accident, she demanded that defendant arbitrate the claim under the uninsured motorist coverage of her policy. The coverage required defendant “[t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury.” Defendant refused to arbitrate.

In lieu of an answer, defendant moved for judgment on the pleadings based on the uninsured motorist clause of the policy, which stated:

“No suit, action, or arbitration proceeding for the recovery of any claim under this section shall be sustainable in any court of law or equity unless the insured, as a condition precedent to such action, has fully complied with all terms and provisions of this policy, nor unless said suit, action, or arbitration proceeding is commenced within two years of the date of loss.”

Defendant argued that on the face of the complaint, plaintiff had not complied with the policy provision because she did not demand arbitration until more than two years after the date of the accident.

After a hearing, the trial judge granted defendant’s motion for judgment on the pleadings and dismissed plaintiff’s complaint with prejudice. Plaintiff now appeals.

Opinion

Under section 2—615(e), “[a]ny party may seasonably move for judgment on the pleadings.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—615(e).) Only the allegations in the pleadings should be considered in ruling on the motion, and the court must determine whether the pleadings present an issue of fact and, if not, whether the party is entitled to judgment. (Daymon v. Hardin County General Hospital (1991), 210 Ill. App. 3d 927, 569 N.E.2d 316.) The interpretation of an insurance policy is a question of law which the appellate court can review de novo. Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 568 N.E.2d 969.

On appeal, plaintiff and defendant dispute whether plaintiff could have made a timely arbitration demand when she did not have proof that the other driver was uninsured until after the two-year period expired. Both parties assume that the policy required plaintiff to demand arbitration on her uninsured motorist claim within two years of the date of the accident. The relevant policy language, however, states that arbitration must begin “within two years of the date of loss,” which is not synonymous with the date of the accident.

In McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 37, 598 N.E.2d 366, 368, the appellate court interpreted policy language almost identical to the present case which required arbitration on a claim for uninsured motorist coverage to be “ ‘commenced within (2) years after the occurrence of the loss.’ ” The court stated:

“[T]he limitations period does not require plaintiff to sue on the policy within two years of the accident, but rather within two years of the ‘occurrence of the loss.’ This distinction is decisive.
An insured cannot be said to have suffered a ‘loss’ until it is determined that the defendant in the personal injury action cannot compensate the insured for the damages incurred. [Citations.] Thus, language in a policy of insurance describing the limitations period in terms of the occurrence of a ‘loss’ does not start to run until the tort liability of the alleged uninsured motorist has been established by judgment or settlement. [Citations.]
■ *** Had defendant wished to prevent plaintiff from bringing suit more than two years from the accident, it simply could have written such language into the policy. Instead it agreed to limit plaintiff’s time to sue to two years from the time that the extent of the liability of the alleged negligent driver had been resolved.” (Emphasis in original.) McCray, 233 Ill. App. 3d at 38-39, 598 N.E.2d at 368-69.

E.g., Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 557 N.E.2d 1281; Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 552 N.E.2d 406.

In this case, as in McCray, the policy required arbitration to begin within two years of the date of the “loss.” The trial judge assumed that the time period began on the date of the accident, June 21, 1987, and because plaintiff did not demand arbitration until March 21, 1990, more than two years later, he granted defendant judgment on the pleadings. Under McCray, however, the period did not begin to run until the tort liability of the uninsured motorist was resolved by judgment or settlement. The status or outcome of plaintiff’s suit against the other driver is not apparent from the pleadings in this case. As a result, judgment on the pleadings, which can only be granted on the basis of the pleadings, was improperly granted in defendant’s favor.

Reversed and remanded.

McNULTY, P.J., and MURRAY, J., concur.


author: JUSTICE MANNING

text:
    ROBERT G. LYON, Plaintiff-Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2711
    Opinion filed November 16, 1992.

      Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for appellant.
    Albert Koretzky, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant, Illinois Department of Professional Regulation (the Department), appeals from an order of the trial court wherein the court reversed the order of the Illinois Architect Examining Committee and granted plaintiff’s motion to dismiss an administrative complaint filed against him. On appeal, defendant argues that the trial court applied an improper standard and that its decision was against the manifest weight of the evidence.

Plaintiff, Robert Lyons, was licensed in Illinois as an architect and operated a corporation Robert Lyon Associates, Inc., Architects/Design Group. About August or September 1986, plaintiff prepared drawing plans at his corporate office in Illinois for his client, Jaymar/ Sansabelt in Indiana. The plans provided for interior decorative changes, carpeting and a modification of the ceiling for the client’s retail store. Plaintiff testified that at the time he prepared these plans he was aware that the plans would possibly be utilized in Mississippi, but was not aware of whether the store would be built there. Plaintiff further testified that when his plans are submitted to clients he is not always aware of where the plans will be utilized.

On September 9, 1986, plaintiff mailed his final plans to Jaymar/ Sansabelt. On September 11, 1986, he received a letter from Andrew Kilpatrick, general counsel for the Mississippi Board of Architecture (Board), concerning the plans. Kilpatrick’s letter advised plaintiff that the title block on the plans identified plaintiff and his corporation as the drafter, and that the Board planned to pursue an injunction of the Mississippi project because plaintiff was not licensed as an architect in Mississippi. Plaintiff had, however, filed an application for licensure.

About August 27, 1987, the Illinois Department of Professional Regulation filed a two-count complaint against plaintiff. Count I alleged that plaintiff had engaged in the unlicensed practice of architecture in Mississippi, in violation of section 73—1—1 of the Mississippi Code of 1972, and that plaintiff’s actions were therefore in violation of section 13 of the Illinois Architecture Act (Ill. Rev. Stat. 1983, ch. 111, par. 1218(c)) and title 68, chapter 7, section 1150.90(f) of the Illinois Administrative Code of 1985 (formerly section 150.83(f)). Count II alleged that plaintiff made false representations in his application filed with the Mississippi Board of Architects. Specifically, defendant claimed that plaintiff had provided architectural services for the Jay-mar/Sansabelt store in Ridgeland, Mississippi, and that neither he nor his corporation was licensed or authorized to practice architecture in Mississippi. The complaint further alleged that plaintiff made misrepresentations on his application for a Mississippi architectural license. Defendant maintained that these actions violated sections 13(c) and (f) (Ill. Rev. Stat. 1983, ch. 111, pars. 1218(c),(f)).

On September 8, 1987, plaintiff filed a motion to dismiss. Plaintiff asserted that the defendant did not have jurisdiction of the matter because count I of the complaint was limited to plaintiff’s conduct of his architectural practice in the State of Mississippi, and that count II failed to include facts showing that plaintiff did anything improper in obtaining a certificate of registration as an architect in Illinois.

On September 14, 1987, counsel for plaintiff and defendant appeared at a preliminary hearing before hearing officer Chiola. At the time of the hearing, plaintiff’s motion to dismiss was pending. After questioning counsel for both parties regarding the distinction between sections 13(c) and (f), hearing officer Chiola concluded that count I of the complaint exceeded the bounds of defendant’s authority to bring the action. The hearing officer ruled that the entire complaint be dismissed as a matter of law.

On October 14, 1987, defendant filed a motion to reconsider the hearing officer’s ruling and plaintiff filed a memorandum in opposition to the motion. On November 5, 1987, the Architect Examining Committee entered an order finding that defendant’s complaint stated a cause of action against plaintiff and set a status hearing for November 30, 1987. On November 30, 1987, a formal evidentiary hearing was scheduled for January 5, 1988, and continued until March 10, 1988.

At the evidentiary hearing on March 10, 1988, attorney Andrew Kilpatrick testified for defendant. He stated that in September 1986 he was employed as general counsel for the Mississippi State Board of Architecture. About the first week of September 1986 he was advised by the Secretary of the Board that plaintiff’s plans had been submitted to the City of Ridgeland, that a permit had been issued, that the construction was 95% completed and that plaintiff was not registered as an architect in Mississippi. Kilpatrick also received a title block from the Board’s Secretary. He did not match the title block with the actual plans that were submitted within the State of Mississippi.

Kilpatrick sent a letter to plaintiff on September 10, 1986, and plaintiff called him the next day. Plaintiff advised Kilpatrick that he intended to immediately respond to his letter and that he did not want the project delayed. Kilpatrick advised plaintiff that he would need a written response before he could present anything to the Board. He received a written response from plaintiff the following day. Kilpatrick stated that plaintiff did not deny filling out the title block.

On April 4, 1988, plaintiff testified at the evidentiary hearing. He stated that he prepared and submitted plans for his client Jaymar Sansabelt, in Michigan City, Indiana. The plans involved the interior structure of a retail store, including carpet, a doorway and a ceiling. Plaintiff testified that everything he did for his client was submitted to Michigan City, Indiana. He testified that he never sent the plans to Mississippi or practiced architecture in Mississippi.

On June 26, 1988, the committee made findings of fact, conclusions of law and recommended to the Director that plaintiff’s certificate of registration be suspended for one year and that 11 months of the suspension be stayed. The committee further recommended that plaintiff be placed on probation for the balance of the suspension period.

Plaintiff filed a timely motion for rehearing, which motion was denied. Plaintiff then filed for review of the committee’s order in the circuit court of Cook County. The court reversed the committee’s order, holding that to the extent the committee’s decision was a legal conclusion, it was incorrect. Alternatively, the court held that if the committee’s decision was a factual one, it was against the manifest weight of the evidence as there were no specific findings that would lead to the conclusion that plaintiff’s action constituted the practice of architecture. The Department’s motion for reconsideration was denied, and the Department appealed.

On appeal to this court, defendant maintains that the trial court erred by failing to affirm the factual finding and evidentiary interpretation of the Architect Examining Committee.

The findings and conclusions of an administrative agency are prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) Those findings will be upheld on review unless they are against the manifest weight of the evidence or fail to be supported by substantial evidence in the record. (Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151.) A reviewing court will neither substitute its judgment for that of the administrative agency nor overturn administrative findings unless they are without substantial foundation in the record. Irving’s Pharmacy v. Department of Registration & Education (1979), 75 Ill. App. 3d 652, 394 N.E.2d 627.

In this case, the defendant claims that plaintiff violated section 73—1—1 of the Mississippi Code of 1972, sections 13(c) and (e) (Ill. Rev. Stat. 1983, ch. Ill, pars. 1218(c), (e)), and section 1150.90(f) of the Administrative Code (68 Ill. Adm. Code § 1150.90(f) (1985)). The record does not support this assertion. The record does not contain a copy of the Mississippi statute that defines the practice of architecture, nor was one produced at trial. Further, there is no evidence of what statute plaintiff violated. However, sections 13(c), (e), and (f) of the Illinois Architecture Act (Ill. Rev. Stat. 1985, ch. 111, par. 1201 et seq.) state:

“The Department of Registration and Education may refuse to issue, to renew, may suspend or may revoke any certificate of registration for any one or any combination of the following causes:
* * *
(c) violation of a rule or regulation of the Department governing professional conduct;
***
(e) false or fraudulent representation in obtaining a certificate of registration as an architect;
(f) conviction in this or another State of any crime which is a felony under the laws of this State or conviction of a felony in a federal court, if the Department determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust.” (Ill. Rev. Stat. 1985, ch. 111, par. 1218.)

Section 1150.90(f) of title 68 of the Standards of Professional Conduct states that “[a]n architect shall not, in the conduct of his architectural practice, knowingly violate any state or federal law.” 68 Ill. Adm. Code § 1150.90(f) (1985).

The evidence adduced at the hearing supported the trial court’s decision. The only physical evidence introduced to show that plaintiff practiced architecture in Mississippi was a photocopy of the title block of the drawings which contained plaintiff’s name and the name of his corporation. Plaintiff testified that he never submitted his drawing plans to anyone in Mississippi, and that on the same day the final drawings were submitted to his client in Indiana, he received notice that his preliminary plans had been sent for a project in Ridge-land, Mississippi.

Although attorney Kilpatrick testified that plaintiff knowingly submitted the plans in Mississippi without being licensed, a careful review of the record does not support this contention. Plaintiff testified that he submitted the plans to his client Jaymar in Indiana knowing that they possibly would be used in Mississippi. Jaymar, in turn, submitted the plans to the City of Ridgeland, Mississippi. Further, while the Illinois Architecture Examining Committee found that plaintiff’s act of supplying plans for the project in Mississippi was a violation of 68 Ill. Adm. Code section 1150.90(f) (1985), we do not find the evidence supports this finding.

Section 1150.90(f) states that “[a]n architect shall not, in the conduct of his architectural practice, knowingly violate any state or federal law.” (68 Ill. Adm. Code §1150.90(f) (1985).) There is no evidence in the record that plaintiff was charged by Mississippi or convicted in that State for violation of any law. The charges here were brought against plaintiff by the Illinois Department of Registration and Education, not the State of Mississippi. Further, there are no specific facts cited in the record that would support the application of section 1150.90(f), which addresses certification as an architect in Illinois by false or fraudulent means. Moreover, the Illinois Architecture Act governs “construction documents intended for use in construction in the State of Illinois” (Ill. Rev. Stat. 1985, ch. Ill, par. 1205), not Mississippi. Therefore, section 1150.90(f) is not applicable.

We, therefore, find that the trial court properly determined that the committee’s order suspending plaintiff’s license was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.