author: JUSTICE BOWMAN JUSTICE COLWELL,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY PEARSON, Defendant-Appellant.
    Second District
    No. 2 — 92—0567
    Opinion filed November 10, 1993.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Jeffrey Pearson, was indicted on two counts of aggravated criminal sexual assault (111. Rev. Stat. 1991, ch. 38, par. 12— 14(aXl) (now 720 ILCS 5/12 — 14(aXl) (West 1992))) and one count of aggravated unlawful restraint (111. Rev. Stat. 1991, ch. 38, par. 10— 3.1 (now 720 ILCS 5/10 — 3.1 (West 1992))). A jury convicted the defendant of one count of aggravated criminal sexual assault (111. Rev. Stat. 1991, ch. 38, par. 12-14(aXl) (now 720 ILCS 5/12-14(aXl) (West 1992))) and one count of aggravated unlawful restraint (111. Rev. Stat. 1991, ch. 38, par. 10-3.1(a) (now 720 ILCS 5/10-3.1 (West 1992))). The defendant was sentenced to an 18-year term of incarceration. On appeal, the defendant asserts (1) he was not proved guilty beyond a reasonable doubt; (2) reversible error occurred when the tendered jury instructions omitted the element of the use of force or the threatened use of force; and (3) reversible error occurred when he was not permitted to introduce evidence of the complainant’s bias. We reverse.

At trial, the complainant testified. Her testimony was corroborated by the testimony of the defendant’s mother, Florence Tillery, and by the testimony of complainant’s sister, Rhonda Engle. The 25-year-old complainant testified that on October 24, 1991, at about 9:30 p.m., she went to Chuck and Berty’s home and smoked cocaine with them until sometime after 3:15 a.m., the last time she looked at a clock. Chuck and Berty were next-door neighbors and family friends of the complainant’s family as she was growing up. They had introduced her to cocaine. She would get cocaine from Chuck and Berty, or from the place on Oakley Avenue to which Berty took her. At that place, Berty introduced the complainant to a man named Foots so that she could buy the drug directly from him. By October 25, 1991, the complainant had been to Foots about five times to buy cocaine by herself.

When she left Chuck and Berty’s on October 25, 1991, she went to the place on Oakley Avenue. She planned to have Foots cash an $80 money order and sell her $30 worth of cocaine with part of the proceeds. However, Foots did not have any cocaine, but said that he was expecting a delivery in one hour. While deciding whether to wait or go home, the complainant was approached by the defendant.

The complainant explained that she had seen the defendant a few other times. She had first met the defendant two or three weeks prior to October 25, when she had gone to Oakley Avenue with Berty to see Foots. She and Berty had given the defendant and a man called “Scrap” a ride to pick up a package of cocaine. When they returned to Oakley Avenue, the defendant gave the complainant a hit off his pipe for giving him a ride. The defendant asked the complainant to call him Special, and when she told him that she was not comfortable with that, he said that was all she needed to know for now.

The complainant also testified that she also saw the defendant one night when she went over to Chuck and Berty’s. Berty was smoking cocaine. Berty and the defendant had words and then the defendant asked the complainant to give him a ride home. First, they stopped at a bar, and the complainant waited in the car, then they went to what defendant said was his sister’s house, and then finally the defendant directed the complainant to his house. She recalled that-his house was on Concord Avenue, right across from the projects. On this occasion, she merely let him off and did not go into the house. In addition to those two times, the complainant saw the defendant at Oakley Avenue off and on.

On October 25, 1991, when the defendant approached her, he asked if she was trying to make a purchase and asked to look at the money order. He tried to talk her into purchasing the full $80 worth, but she told him she wanted $50 of the money for a car payment. At this point, Foots was waiting for a delivery of more cocaine. Then the defendant said that if the complainant would give him a ride to his house, he had cocaine there. The complainant had never bought cocaine from the defendant, never smoked cocaine with the defendant besides that one hit, did not really know the defendant, and assumed she would be going into his house since the cocaine was inside. She had been standing, talking with Foots, when the defendant made his suggestion. Foots was someone who knew everybody who went to Oakley, so she turned to Foots and asked him if he thought this was okay. He kind of shrugged his shoulders, so the complainant said okay. At this point she was not frightened of defendant at all.

Then the complainant drove the defendant to his house. The fact that the defendant had been in the complainant’s car was corroborated by the testimony of Detective Houde and forensic scientist Powers that a partial latent fingerprint taken from the passenger side door above the door handle of the complainant’s car was made by the defendant. She again told the defendant that she was not comfortable with calling him Special and, while in the car, learned the defendant’s real name. When they arrived at the defendant’s house, the defendant explained that his mother was getting ready to leave for work. He told the complainant to stay in the car because his mother would not like him bringing a white girl into the house. The defendant then got out of the car and went to the door. His mother backed her car out so that it was next to the complainant’s. The defendant had trouble with his keys; his mother got out of her car, and they both went into the house. Then his mother came outside and got into her car, and the complainant and the defendant’s mother waved to each other as she left. The defendant’s mother, Florence Tillery, corroborated the complainant’s story that the complainant was at the house on October 25, 1991. Mrs. Tillery testified that she left for work at about 7 a.m. The defendant then signalled to the complainant that it was okay for her to come in. The complainant went in the back door and sat at the kitchen table. Defendant went upstairs.

The complainant yelled upstairs, asking if she could use the rest room. Defendant told her to go ahead. When she came out of the bathroom, she noticed that the lock on the back door was one that required a key to get out. She thought “oh no,” but then she thought that she was just being paranoid because things like that do not happen. The defendant then called down to her again and said, “Go ahead and come up.” The complainant told him that she would wait downstairs. The next thing she knew, he was downstairs and had hold of her. He held her arms and started pulling her upstairs. The complainant testified that she fought with everything she had by trying to grab a hold of the railing, walls, and anything she could. She remembered that she told him to please not rape her. He took her upstairs to a little bedroom.

Once upstairs, he kept trying to throw her on the bed. She tried to sit on the floor and was asking him, “please don’t rape me, please don’t hurt me.” The defendant said he was not going to rape her or hurt her. She asked him why he did not let her sit on the floor. He finally picked her up and put her on the bed forcibly and lay on top of her while they were both clothed. He told her that they could do this the easy way or they could do it the hard way, but he was going to get what he wanted. Her hands were covering her face and she was crying and shaking. She kept saying, “My God, this can’t be happening.” The defendant told her to quit crying and being a pussy because this was the real world. He then told her to take her clothes off. She just lay there. Then he got a gun from somewhere and again told her to take her clothes off. He rolled off of her and she just looked at him. He asked her if she was deaf. She said “no” and the defendant said, “Then get naked.” The defendant was still holding the gun. The complainant then stood up and looked at him. He asked her again if she was deaf, she said “no,” and then he said, “Then do it.” She then started very slowly taking her clothes off. He told her she was doing it too slowly and that she should hurry up. The defendant then grabbed hold of her arm and pulled her down on the bed. The defendant stood up and took his clothes off. He asked her if she wanted him to use a condom. The complainant said, “Yes, if you have to do this, then use it.” He then said he did not want to get AIDS anyway, so he put on the condom. The defendant then had vaginal intercourse with the complainant.

He told her that she was going to do what he said to do. He told her that she was his woman now and that she was in this to the end. He made threats against her life if she told anyone. He said that if he thought she was slick, he would find her and Mil her because he knew where she lived. He asked her if he was “the first nigger that had ever been between her legs.” When he was penetrating her she tried not to look at him, but he kept telling her to look at him. If she did not, he would grab her chin and make her look him in the face. When he was finished, he rolled over on the bed and put his arm and leg over her so she could not move. He talked for a little while and then fed asleep.

The complainant then described the bedroom as an attic with slanted walls, an old stereo with lift-up doors and a turntable inside, an ironing board with an iron on it, an old chair, some dirty clothes, and a mirror covered with college stickers leaning against the wall to the left of the bed. The complainant’s testimony concerning details of the inside of the defendant’s house including a description of the upstairs bedroom and locks on the doors requiring keys was corroborated by the testimony of the defendant’s mother.

After this first forced intercourse, the complainant asked if she could go to the bathroom. The defendant said he wanted her to take a bath so that there would be no evidence. They both went downstairs, and the defendant ran water and dish soap in the bathtub for a few minutes. He then told her to get in and bathe. So she got in and sat there for a few minutes after he had left the room. When the defendant came back into the bathroom, she asked him if she could cry now, and he told her that she could. Apparently he had gotten angry when she was crying before, and she thought she would ask instead of getting herself in more trouble. She then started to cry, and he said that was enough. She recalled that he said, “You’re really upset by this, aren’t you?” The complainant said she was. He said, “Do you think you’ve been raped?” She replied that she did. He then said, “You haven’t. You wouldn’t give it to me so I had to take it.”

A few minutes later he told her to get out of the bathtub and make him a hamburger. As she was cooking it, she was crying so hard that he told her to sit down, and he finished cooking the hamburger. They then sat down at the table, and he started looking through her purse. He wanted her boyfriend’s name, address, and phone number. He found a photo of her nephew who lived in Mississippi. He then wanted her parents’ names, address, and phone number. She panicked when he asked about her parents, as her parents were old; she could not imagine why he would want their phone number and address, and she asked why did he want that information. He would not tell her why; he just said that he needed it. He then wanted her to call her workplace and say that that she was sick and would not be in that day. She told him it would do no good to call work since she ran the office and answered the phone. He did not believe her, so he got on an extension while she dialed her work number and let the phone ring 13 to 14 times. At this point, she was only wearing a towel. The fact that the defendant and the complainant had disturbed the bathroom towels was corroborated by the testimony of the defendant’s mother in which she stated that after she got home from work on October 25, 1991, she found the bathroom towels in the only upstairs bedroom with a bed in it.

At that point, the defendant decided that they were going to leave for a while, so he said, “Let’s go put on our clothes.” Upstairs, she started to put on her clothes. He sat back on the bed, laughed, and said, “You thought I was serious.” She knew that he had the gun but it was not right in his hand. He then made her take her clothes off and had vaginal intercourse with her again. This time, he asked her several times if she had ever had anal sex. She told him no.

After intercourse, the defendant fell asleep with his arm and leg over her. She wriggled free but he woke up. He asked her what she was doing. The complainant told him she was hungry and wanted to go downstairs and fix herself something to eat. He told her that if he had to be awake, she was going to “suck his dick.” He rolled over on his back, made her go between his legs, and forced her head and mouth down on his penis. She started to gag as though she was going to throw up, so he decided she did not have to do that as he did not want her to throw up all over him. He then made her get on top of him. He put his hands on her hips and moved her back and forth. He made references to riding cowboy. If she did not look in the mirror as he wanted, he would put his hand on her chin and made her look. He pulled his penis out before he had an orgasm.

After the defendant fell asleep again, she got free of him and put on her sweatshirt and pants. She looked through his pants and jacket for his keys to no avail. She went downstairs to look for the keys. She tried the back door and it needed a key. She checked the front door and it had the same kind of lock. She looked through the rooms for a window so that she could get out, but there was none. Then the defendant woke up and yelled down. She ran into the bathroom. He said, “What are you doing?” She said she was fixing her hair. She ran the water and waited to hear if he had gone back to sleep. When she thought it was okay, she started looking for the keys. It could not have been more than five minutes when the defendant came down the stairs. She quickly opened the refrigerator as though she was looking for something to eat. He accused her of calling the police. She explained that she had not because there was an extension next to his bed and if he had heard her, she did not think the police could get there in time. The defendant told her that they needed to put on their clothes so that they could go and get something to eat.

The defendant told her that he wanted her to prostitute for him. He said that he was going to take her to where three or four guys lived, she was going to make money for him, and they were going to jump in her car and go to Georgia. Upstairs, she started to put on her clothes again. He again said, “Ha, ha, you thought I was serious.” He took her sweatshirt out of her hand and told her to take her clothes back off.

Eventually, she and the defendant left the house. He said that they were going to her house so that she could get cleaned up and then they would go out to eat and see his friends. When they left the house, he had to unlock the back door. He told her again that if she was slick and tried to run or told anybody, he would find her and kill her. They got into the car. The defendant drove. He wanted to go to her house and she kept making excuses why they could not, even making up a story about a roommate. He took a utility bill which had her address on it from the backseat.

Finally, they drove to the Jane Addams housing project, and he told her to meet him there in an hour. She was to go home and get cleaned up. The last thing he said when he got out of the car was, “Remember, if you’re slick, I’ll kill you.”

The complainant testified that after the defendant got out of the car, she went to her sister Rhonda’s house. The complainant’s older sister, Rhonda Engle, testified that on October 25, 1991, at 10:45 a.m., the complainant came into her home, crying. The complainant did not knock. She grabbed Rhonda. Rhonda asked her what was wrong, and the complainant did not say anything immediately. She cried for 5 to 10 minutes. Rhonda testified that the complainant looked messy: her hair was not neat and she was not wearing makeup, which was unusual. After asking what was wrong a couple of times, the complainant finally told Rhonda she had been raped. The complainant continued to cry and shook. When Rhonda hugged the complainant, the complainant’s body reacted. Afterward, she had told Rhonda that the hug had hurt.

The complainant testified that after the rape she noticed that she had two big bruises, one on each arm, some bruises around her elbow, some on her back, and some on her buttocks. The police took photos of her arms at the hospital on October 25, 1991. Such photos were entered into evidence at trial, and complainant identified those as photos of the bruises on her arms on October 25, 1991, and photos of the bruises a couple of days later. The photos showing recent bruises, and the complainant’s reaction to being hugged by her sister, corroborate her testimony that the defendant grabbed her by her arms and pulled her upstairs, that she resisted, and later, after she had undressed, the defendant grabbed hold of her arm and pulled her down on the bed.

Rhonda testified that when she told the complainant that they needed to call the police, the complainant said no, she continued to cry, and then became more upset. The complaining witness said she could not call the police because he would kill her. The complainant also said that he knew where she lived. Rhonda finally called the police and then their parents. The facts related in her complaint to Rhonda corroborate the complainant’s testimony at trial: that she had been raped, that he had threatened to kill her, and that he knew where she lived.

Rhonda also testified that after October 25, 1991, the complainant stayed with her for seven to eight days. During this time, the complainant cried on and off, bathed a lot, and brushed her teeth a lot. The complaining witness’ appearance after the alleged rape was consistent with the fact that she had been violated. After reviewing the record, we believe it is reasonable to draw the conclusion that the jury could infer from her conduct of crying and obsessive bathing and brushing of teeth for over a week after the rape that such conduct corroborated her story of the rape. Furthermore, the complainant’s testimony is corroborated by the fact that she still had her money order after the ordeal. The complainant’s testimony is also corroborated by her prompt complaint to her sister, Rhonda, her appearance after the rape, and the severe bruises on her arms.

The complainant’s testimony concerning the rape was corroborated in part by her statements to police, although her testimony to police displayed some discrepancies. After her sister Rhonda called the police, the complainant talked to Officer Patterson. The complainant admitted during testimony that she made up a story to tell the police because she was afraid that the defendant would find her and then would kill her. What she told Officer Patterson (that she admitted was wrong) was that she had been on her way to a girlfriend’s house and stopped to use a pay phone and was abducted from the gas station before the rape. She said that the black male who had abducted her took her to a house, at which there was another black man. The abductor then took $189 from her purse, went to the other black male, bought cocaine from him, and forced the complainant to smoke the cocaine and have sex with him several times. She told Officer Patterson that she was raped several times and kept in the defendant’s house. She gave the officer an accurate description of the defendant’s house and told him that one could see the lights of the Concord Commons from his house. She gave him enough information so that Patterson could locate the defendant’s house. She told Patterson about a gun. The complainant gave an accurate description of the defendant: deep voice, dark-complected, and having gray hairs in his goatee.

The complainant also talked to Officer Pobjecky on November 4, 1991. She testified at trial that she related to both Patterson on October 25 and Pobjecky on November 4 that (1) the man who raped her said he would kill her; (2) she had been thrown on the bed; (3) the defendant grabbed a gun and pointed it at her; (4) she had been asked about anal sex but that it did not happen; (5) defendant had used a condom; (6) the defendant had touched her face with his hand; (7) if she would not voluntarily look defendant in the eye, he would put his hand on her chin and make her; (8) at some point the defendant fell asleep; and (9) the defendant performed more than one sexual act on her.

When Officer Pobjecky was assigned the case on November 4, 1991, the defendant had already been named as a suspect since his fingerprint had been removed from the complainant’s vehicle. On November 4, 1991, Pobjecky interviewed the complainant and she mentioned the defendant’s name. Pobjecky then showed her a photo lineup. The complainant immediately picked out the defendant’s photo.

Thus, while much of the complainant’s story was corroborated, there were admitted discrepancies. Notably, she did not reveal to Patterson that she came into contact with the defendant through her voluntary use of drugs. She testified that her rationale for this was that her relationships with her family members, her job, and her relationship with her boyfriend all would be in jeopardy had they known that she was involved in drugs again. She thought the incident was going to hurt enough without it involving drugs, and thereby damaging these important relationships in her life. She explained that she was very close to her parents and that she and her sister Rhonda were best friends. The complainant and her boyfriend had been dating off and on for four years and had broken up in 1989 because he found out about her cocaine habit, which she had hidden for quite a while. She explained that her boyfriend had no tolerance for drugs.

The complainant testified that she did not make up the rape to cover up the cocaine, but had made up the abduction to cover up the cocaine. Furthermore, when Officer Patterson took her to the neighborhood she had described, the complainant did not take the police directly to the defendant’s house. Her rationale for this lack of truthfulness was that she was in the backseat of the car in the defendant’s neighborhood, she had just gotten away from the defendant, and she was afraid that if she took them directly to the house, she was going to meet up face to face with him, and at that point she could not do that. She explained that it had been only one-half hour between the time she had last seen the defendant, he had told her to meet him in one hour, and to not be “slick” or he would kill her. She testified that she wanted the defendant to get caught, but was very afraid. The complainant testified that even sitting in the courtroom with the defendant she was not real comfortable.

The defense rested without presenting any evidence. The jury found the defendant guilty of aggravated unlawful restraint and one count of aggravated criminal sexual assault which alleged oral sex, but could not reach a verdict on the second charge of aggravated criminal sexual assault, which alleged an act of vaginal intercourse. This charge was later dismissed and, at sentencing, the court vacated the restraint charge as a lesser included offense of the sexual assault. The court sentenced the defendant to an 18-year term of imprisonment on May 4,1992.

In the first issue on review, the defendant contends that the jury was not instructed on the fact that an element of aggravated criminal sexual assault is the defendant’s use of force or threatened use of force. He argues that because this omission was not harmless, the defendant is entitled to a new trial. The State contends that the jury was properly instructed as to the elements of aggravated criminal sexual assault, as well as the definition of force or threat of force. The State further argues that the issue is waived by the defendant’s failure to object to the instruction submitted by it and given by the trial court, by defendant’s failure to offer an instruction including this element, and by his failure to raise this issue in his post-trial motion. The State further argues that any error in failing to include this element in the issues instruction was harmless.

The trial court bears the burden of seeing that the jury is instructed on the essential elements of the crime charged, on the presumption of innocence, and on the question of burden of proof. (People v. Parks (1976), 65 Ill. 2d 132, 137.) A defendant’s failure to object to jury instructions, to offer instructions that correctly state the law, and to raise the issue in a post-trial motion results in the waiver of alleged errors for purposes of appeal. (People v. Shields (1991), 143 Ill. 2d 435, 446.) However, plain errors or defects affecting substantial rights may be addressed on appeal although they were not brought to the attention of the trial court. (134 Ill. 2d Rules 451(c), 615(a); People v. Thurman (1984), 104 Ill. 2d 326, 329.) Thus, substantial defects in jury instructions in criminal cases may be considered, even though the defendant has failed to make timely objections. This doctrine is appropriately invoked when the evidence of guilt is closely balanced, or when the error constitutes a grave error. (People v. Reddick (1988), 123 Ill. 2d 184, 198.) The failure properly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. (People v. Ogunsola (1981), 87 Ill. 2d 216, 222.) It is essential to a fair trial that the jury not be permitted to decide a defendant’s guilt or innocence of a crime without being told the essential characteristics of that crime. (Ogunsola, 87 Ill. 2d at 222.) Here, the defendant argues that an essential element of the crime of aggravated criminal sexual assault is that the defendant used force or threatened the use of force and that the jury in this case was not so instructed.

The use of force or the threatened use of force is an essential element of aggravated criminal sexual assault. (111. Rev. Stat. 1991, ch. 38, par. 12 — 14 (now 720 ILCS 5/12 — 14 (West 1992)).) In the present case, in order to prove the defendant guilty beyond a reasonable doubt of aggravated criminal sexual assault, the jury needed to find:

“First: That the defendant committed an act of sexual penetration upon_; and
Second: That the act was committed by the use of force or threat of force[, and that_did not consent to the act of sexual penetration]; and
Third: That the defendant [(displayed) (threatened to use) (used)] [(a dangerous weapon) (any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to be believe it to be a dangerous weapon)].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Illinois Pattern Jury Instructions, Criminal, No. 11.34 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 11.34 (Supp. 1989)).)

However, in the present case, the jury was instructed:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon complainant; and
Second: That the defendant displayed a dangerous weapon.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

On the basis of this instruction, the defendant contends that an element of the offense of aggravated criminal sexual assault was omitted from the jury instructions.

The jury was also instructed:

“A person commits the offense of aggravated criminal sexual assault when he:
1. commits criminal sexual assault; and
2. displays or threatens to use a dangerous weapon.”

Further instructions included:

“A person commits the offense of criminal sexual assault when he commits an act of sexual penetration upon the victim by the use of force or threat of force.”

In addition the jury instructions included:

“The term ‘Force or threat of force’ means the use of force or violence, or the threat of force or violence, including but not limited to when the accused threatens to use force or violence on the victim, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat.”

The State argues that all of these instructions together properly instructed the jury on the issue of the elements of the offense. The State cites People v. Mills (1968), 40 Ill. 2d 4, 15-16, to stand for the proposition that no single instruction is required to state all of the relevant law on a given subject and when multiple instructions are read together, it may be apparent that the court adequately instructed the jury. We distinguish Mills on the basis that in that case the court determined that two instructions were necessary to impart to the jury that the defendant committed the offense of possession of a narcotic drug when it is shown that he knowingly has such drugs in his possession. However, in this case, while it may be gleaned from the four instructions set forth that the use of force or the threatened use of force is an element of the crime, such a proposition is not readily evident from a reading of these instructions. We thus find the jury instructions incomplete. Furthermore, standing alone, the elements instruction setting forth expressly what it is that the State must prove is erroneous, as it lacks the element of the use of force or the threatened use of force. IPI Criminal 2d No. 11.34 (Supp. 1989).

For these reasons, we determine that the jury was not properly instructed on the requirement of the element of the use or the threatened use of force in the instructions for the crime of aggravated criminal sexual assault. Furthermore, we find such error to be reversible error. The failure to instruct the jury on an essential element of an offense is reversible error. (People v. Turner (1989), 179 Ill. App. 3d 510, 517.) However, error which may have been committed in giving or refusing instructions will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty. (People v. Holmes (1993), 254 Ill. App. 3d 271, 276, citing People v. Felder (1992), 224 Ill. App. 3d 744, 755-56.) If evidence of an element of an offense is overwhelming, then its omission from the jury instructions is harmless error. Holmes, 254 Ill. App. 3d at 276.

In the present case, the evidence is not so clear and convincing (on the issue of the use or the threatened use of force) that the jury could not reasonably have found the defendant not guilty. We determine this on the basis of the verdicts and the record. In order to find the defendant guilty of aggravated criminal sexual assault, the jury was instructed, as excerpted above, that the State must prove that (1) he committed an act of sexual penetration on complainant; and (2) he displayed a dangerous weapon. Although there was testimony by complainant that he forced her to have intercourse and to have oral sex, that and evidence of her bruises are the only evidence of force present in the record. In addition, apparently the evidence was not overwhelmingly in favor of the defendant’s guilt, as the jury found him guilty on only one of two aggravated criminal sexual assault counts. Thus, we gather from the record and the verdicts that the error which occurred did not constitute only harmless error.

In addition, we note that a substantial amount of the evidence introduced at trial was the testimony of the complainant, who was a drug addict and whose testimony must be examined closely. The testimony of a narcotics addict must be scrutinized with caution; her testimony, however, may be sufficient to support a conviction if corroborated by other testimony, or otherwise credible under the surrounding circumstances. (People v. Lopez (1989), 187 Ill. App. 3d 999, 1004.) Therefore, we determine that the omission of the element regarding force from the elements instruction was reversible error, and we remand for a new trial.

Next, the defendant contends that reversible error occurred when he was not permitted to introduce evidence of bias or motive on the part of the complaining witness. He contends that the prosecution’s successful motion in limine kept out the fact that the complainant was on supervision for deceptive practices at the time of trial. He contends that had she admitted at trial that in fact all of her stories were untrue, her ability to continue on supervision would have been jeopardized. Thus, he contends, she was biased and had a motive to testify falsely that she had been raped. The State asserts that the defendant failed to raise this issue in his post-trial motion and that thus this issue is waived. The defendant does not address the waiver issue in his reply brief.

An issue not preserved in a post-trial motion is waived. (People v. Lear (1991), 143 Ill. 2d 138, 145; People v. Jaffe (1986), 145 Ill. App. 3d 840, 858.) We agree with the State’s contention, and since the defendant does not address the State’s argument on waiver, we determine that this issue has been waived.

As a final matter, the defendant argues that he was not proved guilty beyond a reasonable doubt. He argues that the complainant was a drug addict who fabricated versions of her story and thus is not a credible witness. In keeping with the mandate of People v. Taylor (1979), 76 Ill. 2d 289, 309, we have reviewed the evidence and find that it was sufficient to support the jury’s conclusion that the defendant was guilty beyond a reasonable doubt of aggravated criminal sexual assault. The finding does not constitute in any way an implication as to the defendant’s guilt or innocence which would be binding on retrial. Rather, it is intended only to protect the defendant from the risk of being subjected to double jeopardy.

In conclusion, in light of the error made at the trial of this matter, we determine that the decision of the trial court should be reversed, and we remand the cause for a new trial.

Reversed and remanded.

QUETSCH, J., concurs.

JUSTICE COLWELL,

dissenting:

I respectfully dissent since I believe that the omission of the element of force in the instruction on aggravated criminal sexual assault was not reversible error given the overwhelming evidence of guilt in this case.

Here, the trial court properly instructed the jury on the definition of aggravated criminal sexual assault in instruction No. 12, but incorrectly instructed on the issues instruction for aggravated criminal sexual assault in that this instruction should have contained the provision that the act was committed by the use of force or the threat of the use of force. See IPI Criminal 2d No. 11.34 (Supp. 1989).

First, it must be noted that I believe the majority properly reviewed this issue under the plain error doctrine. Those errors fundamental to our system of justice, such as the failure to give an instruction on the burden of proof, the presumption of innocence, or the essential elements of the crime charged implicate the plain error doctrine. (See People v. Layhew (1990), 139 Ill. 2d 476, 486; People v. Ogunsola (1981), 87 Ill. 2d 216, 222.) Allowing the jury to convict defendant of aggravated criminal sexual assault even if it believed that defendant never used or threatened force on the victim would have deprived defendant of a fair determination of his guilt or innocence in addition to the fact that it “ ‘deprives the jury of the guidance it must have properly to decide the case.’ ” People v. Holmes, 254 Ill. App. 3d at 278, quoting Ogunsola, 87 Ill. 2d at 223.

Further, I do not believe the jury instructions regarding criminal sexual assault, aggravated criminal sexual assault, and the definition of “force” when taken together are adequate to inform the jury properly of the propositions which must be proved for aggravated criminal sexual assault. The committee notes in the IPI under the definition of aggravated criminal sexual assault specifically state that where, as here, the section (a) definition is used, the trial court must then give the appropriate set of propositions contained in the issues instruction for aggravated criminal sexual assault. This includes the provision regarding the use of force or the threat of the use of force.

However, an error in giving or refusing instructions will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty; indeed, if evidence of an element of an offense is overwhelming, then its omission from the jury instructions is harmless error. (Holmes, 254 Ill. App. 3d at 276.) The majority concludes that the evidence in this case is not clear and convincing that the defendant used force or threatened the use of force. I believe the record shows otherwise. The majority states that the complainant’s testimony that he forced her to have intercourse and oral sex and evidence of her bruises are the only evidence of force present in the record. I believe complainant’s testimony, notwithstanding her drug addiction, is otherwise credible under the surrounding circumstances and conclude such evidence overwhelmingly proves force or the threat of force. (See People v. Lopez (1989), 187 Ill. App. 3d 999, 1004.) In fact, the record as a whole is undisputed that defendant used force and threatened the use of force during the hours he assaulted complainant.

The complainant testified that defendant grabbed her from the kitchen area of his house and dragged her into the attic bedroom. He forcibly picked her up and put her onto the bed after she refused to get on the bed herself. He had complainant take her clothes off at gunpoint and threatened to kill her more than once during the morning. Complainant testified that defendant forced her to engage in vaginal intercourse more than once. He held her head down to perform oral sex on him. Complainant testified she sustained bruises to her arms, back, and buttocks, which was substantiated by the pictures submitted as evidence at trial showing severe bruises to both her upper arms. I believe the evidence of defendant’s guilt is so overwhelming that the plain error exception to the waiver rule does not apply. Defendant’s case was not so close factually that fundamental fairness requires reversal. See People v. Jones (1979), 81 Ill. 3d 1, 9; Holmes, 254 Ill. App. 3d 271; People v. Felder (1992), 224 Ill. App. 3d 744, 755-56.

I further take issue with the majority’s conclusion that “apparently the evidence was not overwhelmingly in favor of the defendant’s guilt, as the jury found him guilty on only one of two aggravated criminal sexual assault counts.” (252 Ill. App. 3d at 14.) I disagree with the assumption here that because the jury did not find defendant guilty of one count of aggravated criminal sexual assault, the evidence of the other aggravated criminal sexual assault count on which he was convicted was not overwhelming. An acquittal on one count of a multicount indictment should not affect a simultaneous conviction. (People v. Dawson (1975), 60 Ill. 2d 278.) If the rule were otherwise, “ ‘the Government would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others— almost the opposite of the standard instruction.’ ” Dawson, 60 Ill. 2d at 281, quoting United States v. Carbone (2d Cir. 1967), 378 F.2d 420, 422-23.

Clearly, the majority here is not suggesting that dismissal of the one count of aggravated criminal sexual assault renders the conviction of the other count suspect; rather, it concludes that the jury’s failure to find defendant guilty on the one count means we cannot presume that the jury inferred that defendant used force or threatened to use force during these events. While this may be true, I do not believe that the dismissal of one aggravated criminal sexual assault count here allows us to conclude, as does the majority, that the evidence in the other such count was closely balanced so as to require a reversal. The jury found defendant guilty of aggravated criminal sexual assault involving oral penetration but could not reach a verdict on the charge involving vaginal penetration, and this charge was later dismissed. These counts constitute different acts, and the jury could have reached contrasting conclusions on them for any number of reasons. Accordingly, I would affirm the circuit court of Winnebago County.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    M X L INDUSTRIES, INC., Plaintiff and Counterdefendant-Appellant, v. BERNARD MULDER, Defendant and Counterplaintiff-Appellee.
    Second District
    No. 2 — 93—0008
    Opinion filed November 4, 1993.

      Roger A. Ritzman and Linda A. Haviland, both of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton, for appellant.
    Arthur G. Jaros, Jr., of Richter & Jaros, and Jerome A. Tatar, of Jerome A. Tatar & Associates, P.C., both of Oak Brook, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, MXL Industries, Inc., filed an action for declaratory judgment against defendant, Bernard H. Mulder, in the circuit court of Du Page County, seeking a determination that it satisfied its obligations, as a tenant, under an early termination provision of a commercial building lease. Defendant counterclaimed seeking damages for accrued rent arrearages and physical damage to the building. Plaintiff timely appeals from various orders of the circuit court which collectively held in substance (1) that plaintiff did not properly terminate its lease obligation with defendant; (2) that defendant was entitled to $211,230.64 in unpaid rent, interest, and post-verdict statutory interest; and (3) that defendant was entitled under the terms of the lease to $67,277.11 in attorney fees and costs.

Plaintiff raises the following issues on appeal: (1) whether it substantially performed the obligations necessary for early termination of the lease; (2) whether it settled the sole condition precedent to terminating the lease; (3) whether defendant waived any objection to plaintiff’s tender; and (4) whether there was sufficient evidence in the record to support the conclusion that defendant made a reasonable attempt to mitigate his damages.

Plaintiff (tenant) and defendant (landlord) entered into a five-year commercial real estate lease, commencing March 1, 1987, for approximately 9,000 square feet of industrial space located in Clarendon Hills, Illinois. Section 2 of the lease provided for plaintiff to pay defendant $3,000 per month during the first year of occupancy and $3,600 per month during the remaining years. Section 3 required a $3,000 security deposit. Section 7(b) required plaintiff to maintain the premises in good repair, normal wear and tear excepted. Additionally, the lease contained the following early termination provision:

“(a) The term of this Lease shall be for a period of five (5) years commencing on the 1st day of March, 1987 and ending on the 29th day of February, 1992 (hereinafter referred to as ‘the term of this Lease’). Notwithstanding the foregoing provisions of this Subsection 1 (a), at any time after the 29th day of February, 1988, Lessee may terminate this Lease by paying to Lessor all sums then due pursuant to the provisions of this Lease and an additional sum equal to four (4) months’ rent specified in Section 2 hereof. If Lessee exercises such right, the term of this Lease shall end on the date on which Lessor receives such payment from Lessor [sic].”

Approximately one year following the inception of the lease, plaintiff, in a letter dated February 24, 1988, notified defendant of its intention to exercise its rights under the early termination provision. The letter stated that plaintiff “has vacated the premises as of February 26, 1988,” that all accrued rent through February 1988 was paid, and that the net proceeds due under the lease terms would be available on the 29th of February. According to plaintiff’s letter, the amount purportedly due defendant was $11,400, which represented four months’ rent ($14,400) less the security deposit ($3,000). The correspondence further provided that “under the circumstances *** it was imperative that a release of the Lease be executed by each of the parties upon payment of the amounts due” to defendant.

The release agreement provided that in consideration of payment of the release fee the parties agreed to release and discharge one another from all further rights and obligations with respect to the lease, including plaintiff’s obligation to pay rent. The agreement provided for a certified check in the amount of $11,400 plus a release of the security deposit ($3,000), thus equaling four months’ rent at the rate commencing March 1, 1988. Following the transmittal of the February 24 letter and release, and prior to February 29, 1988, plaintiff deposited with its attorney, John Mulherin, the sum of $11,400.

Defendant testified that upon his receipt of the February 24 letter he contacted Frank Yohe, an MXL vice-president, and explained that MXL owed him March rent and that he would be sending a punch list of physical discrepancies. Mulherin testified that he received a phone call from defendant, wherein defendant expressed his concerns about the condition of the premises and advised Mulherin that he was sending a list of discrepancies. Defendant further testified that he advised Mulherin of MXL’s obligation for March rent.

On or about March 3, defendant transmitted to plaintiff a list of maintenance discrepancies which he considered plaintiff responsible for under the terms of the lease. Mulherin subsequently notified defendant, by letter dated March 15, 1988, that it was his understanding that plaintiff completed all of the items on the discrepancy list. Defendant testified that he contacted Mulherin to inform him that the contemplated repair work had not been completed. Defendant proposed that plaintiff pay defendant $3,000, and he would have his personnel complete the repair work.

Following their conversation, Mulherin wrote defendant and informed him that he wanted it made perfectly clear that his client, plaintiff, was no longer in possession of the premises and that it would not assume any liability for possession of the premises. Defendant testified that at the time he made the $3,000 offer he noted that there was a deficiency in the amount of the settlement because it did not include March rent. According to defendant, in order to resolve the matter, he required four months’ rent, March rent, and compensation for damage to the building. Defendant also testified that he and Mulherin had conversations regarding items of property he believed MXL left on the premises, specifically, a scrap metal dumpster, a camper, and a boat and trailer. Joseph Richenberger, a tow truck operator, testified that on March 1, 1988, he removed a cooling tower from the roof of the building at the request of Woodland Tool.

Defendant further testified that, on or about March 21, and “in order to make this thing go,” he proposed a reduction in the settlement amount to $2,000. According to his testimony, defendant, at that point, wanted four months’ rent, March rent, and $2,000 for damage to the building. Defendant further stated that he told Mulherin that it was getting near the end of the month, and if the matter was not resolved, MXL would owe rent for April. Mulherin testified that following defendant’s initial mention of rent, defendant never mentioned it again to him.

Mulherin subsequently informed defendant, by letter dated March 25, 1988, that plaintiff had accepted defendant’s proposal to pay the additional $2,000 in consideration of the full settlement and release of the lease. The letter further stated that upon receipt of the signed release agreement from defendant, which was attached to the letter, Mulherin would forward a check or wire transfer in the amount of $13,400 ($11,400 plus the additional $2,000) to any bank or individual at defendant’s direction. The release agreement attached to the March 25 letter was similar in substance to the agreement attached to Mulherin’s February 24 letter, with the exception that the subsequent agreement purported that plaintiff exercised its option to terminate by notice given to defendant “on as of the first day of March, 1988 [sic].” Defendant testified that he was surprised when he received the release and the letter because it was not in accord with the proposal he had given to Mulherin.

In a subsequent correspondence, dated April 7, 1988, from Mulherin to defendant, Mulherin expressed his surprise at having learned from defendant’s wife that defendant had increased his demand by an additional $3,600. Mulherin further stated that in spite of the fact that “we have previously tendered all of the funds due you to terminate the lease we have now elected to go one step further and enclose the following two checks in payment.” The first check was in the amount of $11,400, and the second was for $2,000. On the reverse side of the first check, the following notation appeared:

“Payment of the proceeds of this instrument (including the application of the $3,000 security deposit by Lessor) constitute^] full payment due Lessor, *** to terminate the Lease pursuant to notice of Lessee, MXL Industries, Inc., dated Feb. 24, 1988, and so terminates the lease effective on midnight Feb. 29, 1988.”

The second check bore a similar notation which purported to release plaintiff from any and all claims for alleged damages to the premises arising from plaintiff’s tenancy. Defendant did not cash the checks, and, upon agreement of counsel for both parties, the checks were placed in an interest-bearing account.

By letter dated May 12, 1988, defense counsel informed Mulherin that the checks totaling $13,400 were inadequate to discharge plaintiff’s obligations under the lease. Defendant took the position that plaintiff’s obligations under the lease did not terminate until the date he received the four-month cancellation sum plus all other sums due under the lease, and plaintiff had not physically vacated the premises until the end of March. Defendant calculated, as of the date of the letter, that plaintiff was in arrears for March, April, and May rent; physical damages; and four-month cancellation, thus totaling $24,400.

Plaintiff subsequently filed a complaint against defendant seeking a declaration that it performed its obligations under the terms of the lease. Defendant counterclaimed for amounts he alleged were still owed by plaintiff under the terms of the lease. Defendant prayed for an additional $2,000, “as the agreed upon liquidated sum for unremedied items,” $3,600 per month as and for rent commencing with March 1988, and for each month thereafter, and attorney fees as provided for in the lease. Both parties moved for summary judgment.

On April 26, 1989, the trial court denied plaintiff’s motion for summary judgment in its entirety and granted, in part, defendant’s motion. The trial court found that plaintiff did not comply with the early termination provisions because it failed to tender the full amount due in accordance with the lease; that notice provided by plaintiff did not terminate the lease because plaintiff failed to satisfy all obligations, which was a condition precedent to early termination; that plaintiff was liable for March rent; and that plaintiff’s insistence that a release be executed was not in conformity with the lease, and thus was an improper attempt to modify the terms of lease. The court further found that issues of fact remained regarding allegations of waiver, estoppel, plaintiff’s failure to vacate the premises by February 29, 1988, and whether defendant received funds tendered to him by plaintiff.

Subsequent to the trial court’s ruling on the parties’ cross-motions for summary judgment, plaintiff raised three affirmative defenses to defendant’s counterclaim. Plaintiff asserted that (1) the maximum recoverable amount was four months’ rent as liquidated damages; (2) that defendant was equitably estopped from claiming damages in excess of four months’ rent; and (3) that defendant failed to mitigate his damages. The trial court subsequently struck plaintiff’s first and third affirmative defenses. The court’s apparent basis for striking plaintiff’s third affirmative defense, as gleaned from defendant’s motion, was that mitigation of damages was not properly characterized as an affirmative defense, and, while the issue of liability on the lease remained pending in part, the question of mitigation of damages would nevertheless be premature. This interpretation is further supported by Judge Lewis’ order that was entered following trial, wherein he set an additional hearing, after having ruled that plaintiff did not terminate its obligations under the lease, on the limited issue of mitigation of damages.

At trial, the court granted defendant’s motion for a directed verdict relating to plaintiff’s affirmative defenses of novation and account stated as alleged in plaintiff’s second affirmative defense, and the court took the remaining matters under advisement. By letter dated April 11, 1991, the trial court ruled that, after considering all the evidence presented at the February 25, 1991, trial, it found the evidence consistent with defendant’s position that the lease was not terminated and that a further hearing on the issue of mitigation was in order. The facts relevant to mitigation are set out with our discussion of that issue. Following the hearing on mitigation, the trial court entered an award of damages in favor of defendant in the amount of $211,230.64, plus $67,277.11 for attorney fees.

Plaintiff first contends that it “substantially performed” the obligations of the lease termination provision, and, therefore, it would be inequitable to allow defendant to recover rents equal to the entire remaining term plus damages for repairs. Plaintiff argues that the four months’ rent less the security deposit was tendered to defendant in conformance with the lease termination provision; that the funds were available to defendant as of February 29, 1988; that a second tender of funds occurred on March 25, 1988, following a settlement agreement between the parties; and that checks totaling $13,400 were sent to defendant on April 7, 1988. Defendant responds that plaintiff did not substantially perform the terms of the lease cancellation provision and, even if plaintiff had substantially performed, substantial performance is the incorrect legal standard to be applied. Before reaching plaintiff’s initial contention, we must first consider, as a threshold consideration, whether the doctrine of substantial performance is applicable to an early cancellation provision in a lease for a term of years.

Illinois courts define a condition precedent as one which must be performed either before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. (Cencula v. Keller (1989), 180 Ill. App. 3d 645, 655.) The satisfaction of a condition is generally subject to the rule of strict compliance. (E. Farnsworth, Farnsworth on Contracts §8.3, at 353 (1990).) Professor Williston explains, “ ‘[s]ince an express condition ... depends for its validity on the manifested intention of the parties, it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties ....’ ” (E. Farnsworth, Farnsworth on Contracts §8.3, at 353 (1990), quoting 5 S. Williston, Contracts §669 (3d ed. 1961).) A party seeking the benefit of a condition precedent, however, may waive strict compliance by conduct indicating that strict compliance with the provision will not be required. Community Convalescent Center v. First Interstate Mortgage Co. (1989), 181 Ill. App. 3d 996, 1000.

Distinctly different, although analogous to the concept of a condition, are constructive conditions of exchange. The concept of constructive conditions of exchange was developed by the courts in order to allow the court to supply terms under which a party’s duties to perform are conditioned on the performance to be given in return. (E. Farnsworth, Farnsworth on Contracts §8.1, at 343 (1990).) The purpose of constructive conditions of exchange is to play an integral role in assuring the parties to a bilateral contract that they will actually receive the performance that they have been promised. (E. Farnsworth, Farnsworth on Contracts §8.9, at 401 (1990).) A common application of the concept occurs when one party seeks to justify its own refusal to perform on the ground that the other party has committed a breach of the contract. In sum, the doctrine serves the salutary purpose of assuring each party to a bilateral contract that it will receive the promised return performance, and it expresses a judicial preference for dependent promises. E. Farnsworth, Farnsworth on Contracts §8.9, at 401 (1990).

Because constructive conditions of exchange invoked the concept that one party’s duty to perform was conditioned on the other party’s performance, the need arose to ameliorate the rule of strict compliance ordinarily applied to express conditions. As explained by Professor Farnsworth, “[t]he doctrine evolved that if one party’s performance is a constructive condition of the other party’s duty, only ‘substantial’ performance is required of the first party before that party can recover under the contract.” (E. Farnsworth, Farnsworth on Contracts §8.12, at 415 (1990).) Farnsworth further notes, however, that “[t]his flexible requirement of substantial performance stands in sharp contrast to the requirement of strict compliance that protects a party that has taken the precaution of making its duty expressly conditional.” (E. Farnsworth, Farnsworth on Contracts §8.12, at 415 (1990).) Stated differently, the doctrine does not address substantial performance of a condition; rather, it focuses on substantial performance by one party of its obligations arising out of an agreed exchange of performances. (Brown-Marx Associates, Ltd. v. Emigrant Savings Bank (11th Cir. 1983), 703 F.2d 1361, 1367 (doctrine inapplicable to minimum required rental provision in loan commitment).) Accordingly, an express condition precedent, unless otherwise excused, operates by agreement of the parties to define the satisfaction of a necessary antecedent to a party’s performance under the contract and is subject to the rule of strict compliance, unless such compliance is waived. In contrast, constructive or implied conditions of exchange operate to regulate the parties’ course of performance and are subject to the rule of substantial performance.

Typically, an option to cancel a lease is conditioned on a tenant’s advance notice to the landlord of its intention to cancel and the payment of a premium ordinarily consisting of rent for a specified period. (M. Friedman, Friedman on Leases §21.1, at 1187 (3d ed. 1990).) The cancellation provision in the present case was silent on the issue of notice. It does establish the time for exercise of the option, which is generally recognized as being subject to the rules governing contractual conditions, including the rules that relate to waiver. (See E. Farnsworth, Farnsworth on Contracts §8.7, at 388 (1990).) The option language further required plaintiff to pay a premium equal to four months’ rent and “all sums then due.”

Cases from other jurisdictions suggest that the doctrine of substantial performance is inapplicable to an option to terminate. In Satin v. Buckley (D.C. 1968), 246 A.2d 778, an early termination clause provided that tenant could terminate his lease upon 30 days’ notice if he were transferred to another location by his employer, the Peace Corps. The court held that the tenant did not effect a valid termination of the lease because the termination clause could not be interpreted to include a transfer resulting from the tenant’s new employment with a different governmental agency. 246 A.2d at 780.

In Loitherstein v. International Machines Corp. (1980), 11 Mass. App. Ct. 91, 413 N.E.2d 1146, the court held that a tenant’s failure to exercise seasonably its option to cancel a lease for a term of years would be ineffective to terminate its obligations. The court reasoned that because the termination provision created a conditional limitation on the lease, which was negotiated for by tenant and created a unilateral right exclusively for its benefit, the provision was to be strictly construed. The court was further persuaded by the fact that the provision was negotiated by the parties and the option language was carefully chosen by sophisticated parties.

Although no Illinois court has directly held that a tenant’s unilateral right to exercise an option to terminate in a lease for a term of years is subject to the rule of literal or strict compliance, at least two courts in Illinois have expressed the general rule that options to terminate must be construed in accordance with the agreement and the option must be exercised in the manner provided in the lease. (See Cox v. Grant (1978), 57 Ill. App. 3d 922, 925; Associated Cotton Shops, Inc. v. Evergreen Park Shopping Plaza of Delaware, Inc. (1960), 27 Ill. App. 2d 467, 473-74.) The rule is consistent with the broader notion that the exercise of an option is ineffective where the purported exercise of it varies in any way the terms of the option agreement. See Dodds v. Giachini (1979), 79 Ill. App. 3d 358, 361 rev’d on other grounds (1981), 84 Ill. 2d 284.

Based upon the foregoing, we conclude that the doctrine of substantial performance has no application to the present option to cancel a commercial lease for a term of years. Because plaintiff’s argument necessarily concedes that it did not literally or strictly comply with the option requirements, we must conclude that the option was not effectively exercised. While we recognize that a rule of strict compliance might lead to harsh results, such a rule tends to “enforce[ ] commercial certainty.” (See Loitherstein, 11 Mass. App. Ct. at 94, 413 N.E.2d at 1149.) Moreover, the parties here are sophisticated business people, the right to cancel was for the plaintiff’s sole benefit, and there was no evidence in the record to suggest that the option language resulted from overreaching or an unfair inequality in bargaining power. Finally, we note further that the record does not support the conclusion that defendant waived the requirement of strict compliance.

Plaintiff further contends, however, that the parties settled the sole condition precedent to terminating the lease, which was the cost to repair physical damages to the building. Defendant responds that there was sufficient evidence at trial to support the conclusion that the settlement referred only to physical damage to the building and not “all sums then due.” Defendant argues, in part, that the lease could not have been terminated because March rent was still owing and that payment for repair costs had not been paid.

Initially, we reject defendant’s argument that because the termination clause provided that tenant could only terminate after February 29, 1988, the parties intended an initial term of 13 months prior to the cancellation right becoming exercisable. In Public Relations Board, Inc. v. United Van Lines, Inc. (1978), 57 Ill. App. 3d 832, the court construed a substantially similar termination provision in an agreement for public relations and sales promotional services. The termination clause provided that the agreement could be “cancelled by either party with 60 days advance notice any time after December 31, 1975.” The defendant notified the plaintiff 75 days prior to December 31 that it was cancelling the agreement. The plaintiff rejected the defendant’s notice, contending that the earliest possible termination was February 29, 1976, 60 days after December 31, 1975. Interpreting the parties’ intentions from the unambiguous language of the termination clause, the court rejected plaintiff’s contention. Finding that the agreement provided for an annual retainer fee payable in equal monthly installments, the court concluded that plaintiff’s interpretation would have the effect of converting an agreement initially intended to last for 12 months into one for 14 months, which was not consistent with the parties’ intentions. Public Relations, 57 Ill. App. 3d at 834.

Where the language of a contract is unambiguous, the intention of the parties must be ascertained by the language utilized and not by the construction placed upon it by the parties. (Szczerbaniuk v. Memorial Hospital (1989), 180 Ill. App. 3d 706, 713.) Moreover, a court cannot construe the contract contrary to the plain and obvious meaning of the language (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287; Szczerbaniuk, 180 Ill. App. 3d at 713), and it is presumed that the terms and conditions are purposefully inserted and that the language is not idly employed. (Szczerbaniuk, 180 Ill. App. 3d at 713.) Analogous to the cancellation provision in Public Relations, the agreement in the present case contemplated payments allocated in accordance with an annual fee schedule payable in equal monthly installments. Accordingly, we reject defendant’s interpretation that the initial period prior to the termination right being exercisable was 13 months, thus including March rent.

Defendant further argues that even if the termination provision were interpreted as contemplating an initial period of 12 months instead of 13 months, there was sufficient evidence that plaintiff remained in possession of the premises after February 29, 1988. Plaintiff does not dispute that a cooling tower it owned was still on the premises on March 1, 1988, when it was removed. Plaintiff further admitted, in its answer to a request to admit facts, that it left items of personal properly on the premises after February 28, 1988. Accordingly, there was sufficient evidence to support a conclusion by the trial court that plaintiff remained in possession of the premises during the month of March, thus entitling defendant to rent for March. Because of our conclusion, it is unnecessary to reach defendant’s further argument that it was entitled to March rent because the amount for physical damage to the building remained in dispute during the month of March.

Plaintiff next contends that defendant waived any objection to its tender of funds to Mulherin on February 24, 1988. Plaintiff argues that because defendant, at the time of the February 24 letter, objected only to the condition of the property and voiced no demand for March rent, defendant waived any objections to plaintiff’s tender of the funds. Although the term is susceptible to varying definition, and absent a controlling statutory definition, the common law defines “tender” as an unconditional offer of payment consisting of the actual production of a sum not less than the amount due on a particular obligation. (74 Am. Jur. 2d Tender §1, at 545-46 (1974).) It is widely recognized that a tender must be without conditions to which the creditor can have a valid objection or which will be prejudicial to his rights. (74 Am. Jur. 2d Tender §24, at 561-62 (1974).) Additionally, tender of an amount less than the creditor claims is due is ineffective when acceptance is conditioned on an admission that no greater amount is due. (74 Am. Jur. 2d Tender §25, at 562-63 (1974).) Thus, where a debtor conditions its tender with a demand for a full release, absent an express stipulation in the contract or statutory requirement obliging the creditor to give a prior release, the tender is ineffective. 74 Am. Jur. 2d Tender §25, at 563 (1974).

In his February 24 letter to defendant, Mulherin explicitly stated that “it was imperative that a release of the Lease be executed by each of the parties upon payment of the amounts due.” The express language of the contract does not provide for the provision of a release. The release agreement provided that in consideration of the “release fee” the parties agreed to release and discharge one another from all further rights and obligations. At the time of the letter and plaintiff’s purported tender, however, the question of “all sums then due” remained open. Accordingly, plaintiff’s offer of four months’ rent less the security deposit in conjunction with the release would have relieved plaintiff of its obligation to pay defendant any additional sums that it might have owed under the terms of the cancellation provision. Plaintiff’s purported tender, therefore, was conditioned on defendant’s admission that no greater amount was due under the terms of the early cancellation provision, thus rendering the tender ineffective.

Plaintiff finally contends, presumably in the alternative, that defendant failed to mitigate his damages. Plaintiff initially argues that defendant’s efforts to market the property were not reasonable. Defendant responds that his duty to mitigate did not require that he undertake optimal measures to ensure success; rather, the only requirement was that he take reasonable actions.

On appeal, a reviewing court will not disturb the trier of fact’s determination of damages unless it is contrary to the manifest weight of the evidence. (Northwest Commerce Bank v. Continental Data Forms, Inc. (1992), 233 Ill. App. 3d 124, 127; M B C, Inc. v. Space Center Minnesota, Inc. (1988), 177 Ill. App. 3d 226, 234.) A reviewing court will not interfere with the trier’s findings as to damages, even though it would have been satisfied with different findings, where the evidence is conflicting or where there is evidence in support of the verdict and there is no indication that the award was the result of passion, prejudice, or corruption. Northwest, 233 Ill. App. 3d at 127.

Section 9 — 213.1 of the Illinois Code of Civil Procedure provides:

“§9 — 213.1. Duty of Landlord to mitigate damages. After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee.” (735ILCS 5/9 — 213.1 (West 1992).)

The statute requires landlords to undertake reasonable efforts to relet the premises following a defaulting tenant’s departure from the premises, rather than allowing the premises to stand vacant and collect rent in the form of damages. (J M B Properties Urban Co. v. Paolucci (1992), 237 Ill. App. 3d 563, 568.) In one of the few decisions to interpret section 9 — 213, one Federal district court has held that it is a question of fact whether a landlord’s attempts to relet the premises at higher rental rates were reasonable efforts to mitigate. American National Bank & Trust Co. v. Hoyne Industries, Inc. (N.D. Ill. 1990), 738 F. Supp. 297, 302.

Based upon our review of the record, we find no basis upon which to disturb the trial court’s award of damages. The evidence presented at the mitigation hearing revealed that defendant offered to relet the premises at a rental rate of $3,600 to $4,000, which was at or near the same monthly rate charged to plaintiff, and defendant was able to obtain some partial short-term rentals, albeit at a reduced rate. Defendant’s expert testified that the asking price was a reasonable rate for the mitigation period. He further opined, based upon a hypothetical question which paralleled defendant’s testimony about his efforts to relet the premises, that defendant’s approach to marketing the property was reasonable.

Defendant also testified that as soon as plaintiff vacated the premises he engaged a building manager, erected a sign and began placing calls to bankers, real estate brokers, and developers. Defendant also initially ran newspaper advertisements in a local newspaper and occasional advertisements in regional newspapers. Additionally, plaintiff’s own expert admitted that placing advertisements and erecting signage were reasonable steps toward reletting the premises.

Plaintiff does not dispute defendant’s efforts to relet the premises; instead, his argument focuses on the “inadequacy” and unreasonableness of defendant’s efforts. We interpret the underlying thrust of plaintiff’s argument as essentially a request to have this court perform the trier’s function and redetermine the reasonableness of defendant’s efforts. It is not the duty of this court to invade the province of the trier of fact and substitute our judgment for that of the trier, where the trier’s determination is otherwise supported by sufficient evidence in the record. We find ample support for the trial court’s conclusion that defendant took reasonable measures to mitigate his damages. Moreover, we do not find any suggestion in the record to support the conclusion that the award was the result of passion, prejudice, or corruption.

Plaintiff further argues that defendant’s failure to have the building inspected for fire code violations and to remedy any discrepancies noted thereon further demonstrated defendant’s failure to take reasonable efforts to mitigate his damages. Plaintiff cites no authority in support of its argument. Moreover, as noted by defendant, there was no evidence presented to support the conclusion that defendant could not have otherwise rented the premises or immediately remedied any discrepancies prior to a new tenant taking possession. Accordingly, we find this argument without merit.

Finally, defendant requests, in the event of affirmance, that this court remand the cause to the trial court for the sole purpose of determining appellate attorney fees. Provisions in contracts for awards of attorney fees are an exception to the general rule that the unsuccessful party is not responsible for payment of such fees. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12.) Section 16(d) of the lease provides for the payment of attorney fees by plaintiff in the event defendant is made a party to any litigation commenced by plaintiff and also to pay all costs and reasonable fees incurred by defendant in enforcing the covenants of the lease. Accordingly, in light of our disposition of the preceding issues, we remand this cause to the trial court for a determination of reasonable appellate attorney fees.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County and remand with directions.

Affirmed and remanded with directions.

INGLIS, P.J., and COLWELL, J., concur.