author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LLOYD LOCKWOOD, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—3522
    Opinion filed December 10, 1992.
    Rehearing denied February 3, 1993.

      Rita A. Fry, Public Defender, of Chicago (Cheryl K. Lipton and Evelyn G. Baniewicz, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of aggravated arson and sentenced to 12 years’ imprisonment. On appeal, he contends that the State failed to prove him guilty beyond a reasonable doubt; that he was prevented from eliciting evidence supporting his theory of defense; that the trial court committed reversible error in refusing to instruct the jury on lesser offenses; and that the aggravated arson statute is unconstitutional.

The evidence adduced at trial is as follows. Gloria Snow testified that she lived in the first-floor apartment of a building on North Harding Avenue in Chicago with her two daughters, Robresta and Aurelius; and that her granddaughter was visiting on the night of January 12, 1990. Shortly after 10 p.m., defendant, who had been dating Robresta, came to the apartment and told her that he wanted to retrieve some clothes he had left there and to speak with Robresta. Gloria informed him that Robresta was not at home, but allowed him entrance and walked back to Robresta’s room with him. After gathering his clothes, defendant told Gloria that he was going to wait there for Robresta. Gloria responded that he could not stay and noted that he smelled of beer. He assured her that he was “fine,” but she repeated that she wanted him to leave. As defendant was leaving, Robresta arrived. They went into Robresta’s room to talk, but within a short time they began fighting. When Gloria went to the room, she saw defendant “hitting [Robresta], shoving her around.” After a struggle, Gloria came between him and Robresta and finally pressured defendant to leave. She then locked both the outer door to the building and the apartment door.

When the doorbell rang, Gloria looked out her living room windows, from which the street and outer door to the vestibule of the building are visible, and saw defendant at the front door “laying” on the bell. Gloria knocked on the window and told him to stop ringing the bell and to leave. Defendant responded that he was going to stay there all night if necessary. While continuing to ring the bell, he said that if she did not allow Robresta to come out and talk to him, “I’m gonna take all of you out. I will get you out,” and then he left. Approximately 30 minutes later, defendant returned and began ringing the bell again. He told Gloria to send Robresta out, but Gloria refused. Defendant then went to his car and took out a brown bag. He came to the front of the house and began shaking liquid on the sidewalk in front of the door and under the front windows. He also shook some liquid into the vestibule through the mail slot. He then gathered some leaves and paper and put them in a pile near the corner of the door, removed a lighter from the glovebox of his car, walked back to the house and set the papers and leaves on fire. Gloria saw flames from the pile of debris and smelled strong gasoline fumes. She hollered to Robresta to call the police. Defendant went to his car and started it, but a police car drove up, preventing him from leaving. One of the officers ran to the house and stomped out the fire.

At the time of these events, Katie Buckhalter, the owner of the building, and her daughter, Kimberly, were in their second-floor apartment. After the police arrived, Gloria and the Buckhalters went down the stairs to the vestibule. The hallway and the rug were flooded with gasoline and the door and floor were “black and burnt [sic].” Gloria and Katie brought down cleaning supplies and mopped up the gasoline and scrubbed the floor and door. Gloria identified photographs of the front of the house, the outside of the front door and the floor just inside the front door which were taken by a police photographer a few hours after the incident.

On cross-examination, Gloria stated that Robresta went down to the vestibule with a pot of water which she splashed on the fire in the hallway as the police officer was stomping on the fire outside. When she opened the door, the fire in the hallway “poofed up.” The fire department was never called. After the police had interviewed everyone in the building, they left. Gloria believed at that time that “everything was over” and did not learn until later that they should not have cleaned the hallway. The linoleum in the hallway was not replaced after the incident. Gloria acknowledged that she did not approve of defendant because he hit Robresta. In speaking to the police, she told them that defendant had been “clowning” with Robresta when he was in the apartment.

Kimberly Buckhalter, aged 22, testified that she was awakened in the early morning hours by her mother screaming that there was a fire. When they ran downstairs she smelled gas fumes and saw that the door was burned. The only thing she saw in the hallway was gas on the floor and that the tile was blackened. After the police left, she helped clean up the floor and scrub the door. She did not recall whether the police told them not to touch anything on the scene. The testimony of Katie Buckhalter, Kimberly’s mother, was essentially the same as Kimberly’s. She added that a portion of a rug in the hallway had also been burned.

Robresta McSwain testified that upon arriving home shortly after 11 p.m. on January 12, her mother informed her that defendant was there and wanted to talk to her. She went into her room and told defendant to leave because her mother did not want any arguing or fighting. He told her that he wanted to talk, but she said they had nothing to talk about, whereupon they began physically fighting. Her mother came in and stood between them, and ordered defendant to leave. At first he refused, but eventually he left the apartment. He went downstairs and began ringing the doorbell, and then stopped. A short time later, he returned and “laid on the doorbell again” and began arguing with her mother who was talking to him through the window. Shortly before 2 a.m., she heard her mother talking to defendant again. She smelled gasoline and then went to the window and saw defendant reach into the glove compartment of his car. She realized that he had removed a lighter when he flicked it. At that point, she called the police. Following her call, her mother told her that defendant had set the building on fire. By the time she returned to the window, defendant was trying to leave in his car. The police arrived and blocked his departure.

When Robresta opened the apartment door, the fire in the hallway “went up,” and she almost fell into it because the hallway was filled with gasoline. She ran back into the apartment and filled a pan with water to pour on the fire. She also ran upstairs to alert the Buckhalters that there was a fire. After the police left, they cleaned up the gasoline and scrubbed the door. She did not awaken her younger sister or niece, nor did anyone leave the building because of the fire.

Officer Kostecki testified that he and his partner arrived at the scene within minutes of receiving a radio call. Another police car had also just arrived from the opposite direction. When he saw that the front door of the building was on fire, he quickly exited his vehicle, went up to the door and stomped and beat out the fire. He was met in the vestibule area by a young woman carrying a pot. She accompanied Kostecki to where the officers from the other police car had stopped defendant's vehicle and identified defendant as the man who set the fire. After defendant was placed under arrest, Kostecki returned to the building. He recovered a rug, which was saturated and smelled of gasoline, from the vestibule. Before leaving, he advised the residents that someone would be back later to take photographs of the damage. On cross-examination, Kostecki stated he did not see any fire on the inside of the building. There was liquid on the floor but he did not know if it was gasoline or water.

Officer John Cruz testified that when he and his partner arrived at the scene a car was pulling away from the curb. They blocked the car and detained defendant. The front door of the building seemed to be on fire, and a uniformed officer was stomping out the fire. After Robresta identified defendant as the offender, defendant was placed under arrest and searched. They recovered an Amoco $3 gasoline purchase receipt, on which some numbers and the name “Carolyn” were written, from defendant’s pocket and a yellow Bic lighter from the car seat. They also found a one-gallon antifreeze container, which smelled of gasoline, next to the house.

On cross-examination, Cruz stated that Robresta and Gloria reported that there had been a heated verbal altercation with defendant in the apartment, but neither woman stated that there had been a physical fight. Robresta advised him that she had poured water in the vestibule, but that fact was not included in the police report.

Carolyn Griffin testified that defendant drove in to the Amoco station where she worked shortly after midnight on the date of the offense. He asked to purchase $3 of gasoline. She did not see him pump the gasoline. He then returned to the window and asked if she had a light for his cigarette. She gave him a yellow Bic lighter and told him to keep it. They had a conversation which lasted between 30 and 45 minutes. A short time later, a police officer drove into the station in defendant’s car and questioned her.

William Tyrrell, employed as a technician with the police department crime laboratory, testified that tests established that a soil sampie and the antifreeze container recovered from the scene contained gasoline. He also tested the hallway rug and found the presence of gasoline. On cross-examination, Tyrrell stated that he did not conduct tests to determine the amount of gasoline in or on any of the items. Following Tyrrell’s testimony, the State rested.

Aurelius Snow, Robresta’s 14-year-old sister, testified that on the night at issue, she was awakened by noisy commotion and yelling. When she came out of her bedroom, she smelled gasoline but did not see any fire. She did not leave the apartment.

Defendant first contends that his conviction for aggravated arson was improper because the State failed to prove an essential element of the offense. Specifically, with reliance on People v. Oliff (1935), 361 Ill. 237, 197 N.E.2d 777, and People v. Carter (1990), 200 Ill. App. 3d 760, 558 N.E.2d 489, defendant asserts that the State was required to prove that the building was burned. He argues that the evidence established only that a fire was started on the ground outside of the front door and that it was stomped out by a police officer before any burning damage occurred.

In Oliff the defendant argued that the charred and scorched condition of the ceiling, walls and floor of a building was not sufficient to constitute a burning necessary to prove arson. The supreme court held that for there to be a burning there must be a wasting of the fibers of the wood, no matter how small in extent. The Oliff court further stated that the charring of a wall or floor is sufficient to constitute a burning.

In Carter, it was undisputed that the building had been burned; the only issue was whether the defendant was the person responsible for the fire. The court cited People v. Lueder (1954), 3 Ill. 2d 487, 121 N.E.2d 738, for the proposition that the corpus delicti of arson is the burning of a building caused by an individual’s criminal acts.

Although we believe that the evidence, reviewed below, was sufficient to satisfy the definition of a burning under Oliff, defendant’s argument that the “essential element of burning” was not proved misapprehends the law. The statutes in effect when Oliff and Lueder were decided defined arson as the burning of a structure. (Ill. Rev. Stat. 1933, ch. 38, par. 48; Ill. Rev. Stat. 1953, ch. 38, par. 48.) However, under the current statute, arson occurs when, by fire or explosive, a person knowingly damages the property of another without the person’s consent. (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.) Aggravated arson occurs when in the course of committing arson, a person knowingly damages, partially or totally, any building or structure of another without his consent, and he knows or reasonably should know that one or more persons are present in the building. (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.1.) Neither provision uses any form of the word “burn.”

At trial, the State presented testimony that the building was damaged by the fire. Gloria Snow testified that defendant gathered papers and leaves in the corner of the front entrance, shook liquid on them and set them afire. She further stated that defendant also poured gasoline into the mail slot and that there was a fire in the vestibule, onto which her daughter, Robresta, threw a pot of water, and that the floor was blackened. Kimberly Buckhalter and her mother, Katie Buckhalter, both testified that the front door was burned, the tile in the vestibule was blackened and a portion of the throw rug was burned. Officer Kostecki testified that when he arrived at the scene he saw “the front door *** on fire.” He extinguished the fire not only by stomping on it with his feet but also by striking at it with a rag he found nearby. Officer Cruz testified that when he drove up, the front door of the building appeared to be on fire.

Defendant also argues that the testimony that there was a fire in the hallway was contradicted by Officer Kostecki, who testified that he did not see any fire inside. We note, however, that it was not until after Kostecki extinguished the fire outside that he entered the building. He testified that he was met at the doorway by a young woman carrying a pot. The vestibule smelled strongly of gasoline and the rug was saturated. Although he did not know whether the liquid on the floor was water, gasoline or both, his testimony is supportive of the residents’ testimony that Robresta threw a pot of water onto the hallway floor to extinguish a fire there.

Further, the State introduced photographs of the premises taken after cleaning efforts by the residents. It appears from the photographs in the record that the wood on the bottom of the door and on the frame around the door was charred and scorched, rather than merely “smudged and discolored” by smoke as defendant argues. The inside of the door opposite the damaged outside section also appears scorched and blackened, and the vestibule tile at that location was also blackened. Viewing the evidence in the light most favorable to the prosecution, as we are bound to do (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247), we find that the evidence was sufficient to sustain the jury’s verdict.

Defendant also contends that the trial court infringed upon his constitutional right to present his theory of defense by disallowing cross-examination on whether the front door was replaced after the fire. Defendant asserts that the' court’s ruling that such evidence was not relevant was erroneous because the State was required to prove that there was damage to the building, and evidence that the door was not replaced “tends to show that there was not damage” to it.

We find no merit in defendant’s argument. The damage element of aggravated arson is satisfied by proof of even partial damage to the structure. (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.1) The issue was not whether the damage was so extensive as to necessitate the door’s subsequent replacement but simply whether the door was damaged by the fire. (See, e.g., People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809 (proof of the value of real property damaged by arson is not required by the statute).) The testimonial and photographic evidence discussed above regarding the condition of the door established that it was damaged. The trial court correctly ruled that evidence that the door was not replaced subsequent to the fire was irrelevant. Moreover, we note that Katie Buckhalter testified that the vestibule tile was never replaced and that, notwithstanding the court’s ruling, defense counsel remarked in closing argument that the photographs taken shortly after the fire showed “the way the door is today,” thus apprising the jury that the door was never replaced.

Defendant next contends that the trial court erred in refusing to instruct the jury, as he requested, on the offenses of attempt, arson and criminal damage to property. Defendant asserts that there was evidence which, if believed by the jury, may have resulted in his being convicted of one of the lesser offenses and acquitted of aggravated arson.

It is well settled that a defendant may be entitled to have the jury instructed on a less serious offense that is included in the one with which he is charged. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) Where there is some evidence in the record which, if found credible by the jury, would reduce the crime to a lesser offense, an instruction on the lesser offense should be given. (People v. Upton (1992), 230 Ill. App. 3d 365, 595 N.E.2d 56.) The rationale for this principle is that an instruction on a lesser-included offense provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict the defendant rather than acquit him of the greater offense. People v. Bryant, 113 Ill. 2d at 502.

There are, however, limitations to the operation of the lesser-included offense doctrine. An included-offense instruction is required .only in cases where the jury could rationally find the defendant guilty of the lesser offense and acquit him of the greater offense. (People v. Perez (1985), 108 Ill. 2d 70, 483 N.E.2d 250.) If an instruction is warranted because there is evidence which could rationally permit a jury to find a defendant guilty of a lesser offense than the one charged, it follows that the giving of an instruction might rationally be precluded by evidence negating the possibility of a finding of guilt of a lesser offense than the one charged. People v. Bryant, 113 Ill. 2d at 507.

In the present case, the trial court found no rational basis upon which the jury could find defendant guilty of any of the lesser offenses instead of the greater offense of aggravated arson. We agree with that finding.'

With respect to the tendered instruction on arson, there is no question that defendant knew that persons were present in the building. Thus, if the jury found that defendant committed arson, in that by means of fire he knowingly damaged, even partially, the structure on North Harding, it would have been bound to find defendant guilty of aggravated arson, which is the commission of arson with knowledge that persons are present in the building. The evidence establishing the presence of people in the building precluded the giving of an instruction on simple arson.

Defendant also argues that the jury should have been instructed on attempt because there was a dispute as to whether the building was burned by the fire that he set outside the door. He maintains that the jury could have concluded that the door never caught on fire, and, therefore, that he was guilty only of attempt rather than a completed crime.

Attempted arson occurs when a person intends to and takes a substantial step toward committing arson. As noted earlier, the present arson statute does not require a “burning.” It is sufficient that defendant, by means of fire, knowingly damaged the building. Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.

Irrespective of whether the door caught fire, there was damage to the building attributable to the fire. The fact of damage is supported by the testimonial and photographic evidence that the building was damaged by the fire. The State presented evidence that after threatening to “take [the residents] all out,” defendant purchased gasoline, sprinkled it around the outside of the house, in front of the door and into the vestibule, and gathered leaves and papers into a pile in front of the door, all of which demonstrated his intent to commit aggravated arson and were steps taken toward the commission of the offense. In addition, however, he then retrieved a lighter from his car and set the pile of debris on fire, which caused damage to the building inhabited by several persons. At that point defendant’s conduct went from taking steps toward the commission of aggravated arson to the actual commission of the offense. There was no evidence to support a finding that defendant merely attempted to damage the building by fire but withdrew from or otherwise terminated his criminal activity before completion of the offense.

Defendant also requested that the jury be instructed on criminal damage to property. The criminal damage to property statute provides, in relevant part:

“(1) A person commits an illegal act when he:
(a) knowingly damages any property of another without his consent; or
(b) recklessly by means of fire or explosive damages property of another; or
(c) knowingly starts a fire on the land of another without his consent.” Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1.

Initially, we note that subsection (b) is not a lesser-included offense of aggravated arson because the requisite mental states are different. (People v. Ryan (1981), 97 Ill. App. 3d 1071, 424 N.E.2d 20.) Recklessness is not an element of aggravated arson, which requires a knowing or intentional act. Recklessness is defined as a conscious disregard of a substantial and unjustifiable risk that circumstances exist or that a result will follow (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6), whereas “knowing” means a conscious awareness that such result is practically certain to be caused by the conduct” (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 5).

Further, the record is devoid of evidence tending to show that defendant acted recklessly. Rather, the evidence was that defendant threatened the residents, drove to purchase an accelerant, gathered debris, poured gasoline around and into the building, and then purposefully set the debris on fire. His actions were clearly intentional and performed with the knowledge of the substantial risk and near certainty that the fire would damage the building in which persons were present. The trial court correctly refused to instruct the jury on subsection (b) of the criminal damage to property statute.

Defendant retorts, however, that subsections (a) and (c) both require a “knowing” act, and are, therefore, lesser-included offenses of aggravated arson. We disagree.

Subsection' (a) is general in its scope, making it an illegal act for anyone to knowingly damage the property of another without his consent. The conduct of damaging the property of another by means of fire is specifically addressed in subsection (b) and requires the less culpable mental state of recklessness. It would appear that the General Assembly recognized the uniquely dangerous characteristics of fire and explosives in carving out a separate subsection which imposes the same punishment for the conduct of damaging property by fire as other types of damage to property, but upon proof of a less culpable mental state. We do not believe that subsection (a) applies to the knowing damage of property by fire.

Moreover, upon proof that defendant knowingly damaged the building by fire, the jury was bound to convict defendant of aggravated arson. The knowing damage of property by means of fire constitutes arson, and, as we discussed earlier, aggravated arson occurs when a person commits arson knowing that persons are present in the structure.

Similarly, we do not believe that subsection (c) is a lesser-included offense of aggravated arson. In a case where the charged offense is arson, it could, conceivably, be appropriate to instruct a jury on subsection (c), if there was evidence that the fire was located only on the land of another, e.g., on the front parkway of the property. However, in this case although the fire was technically started on the ground, or “land,” the ground involved was the cement entrance way to the building; and, as shown by the photographs, the leaves were placed up against the wooden frame of the building’s front door. When those leaves were set afire, damage was caused to various portions of the building. This result established the offense of arson, and because the building was inhabited by several persons, the offense of arson was enhanced to the offense of aggravated arson.

Defendant’s final contention is that the aggravated arson statute is unconstitutional for two reasons. He asserts (a) that it violates the constitutional guarantee of penalties proportionate to the seriousness of the offense and (b) his right to due process.

We first consider defendant’s assertion that the statute violates due process because it does not require a greater culpable intent than the underlying offense of arson. In People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, the supreme court struck down subsection (a)(3) of the aggravated arson statute as unconstitutional, and in People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470, the court likewise struck down subsections (a)(1) and (a)(2). In both cases, the basis of the court’s rulings was that the statute did not require an unlawful purpose in setting a fire and therefore could have led to punishment of innocent as well as culpable conduct. The Johnson court observed that although the legislature intended to provide for an aggravated form of arson and intended the factors in subsections (1) (2) and (3) to enhance the offense from simple arson to aggravated arson the legislature did not define an underlying offense.

After Johnson, the General Assembly amended section 20 — 1.1, effective December 9, 1985. In People v. Zeisler (1990), 125 Ill. 2d 42, 48-49, 531 N.E.2d 24, 27-28, the supreme court stated that the amendment “rectified an important substantive element of aggravated arson because the revision incorporates the underlying offense of arson,” which requires knowing damage to property by means of an unlawfully set fire. (See also People v. Brent (1988), 175 Ill. App. 3d 459, 530 N.E.2d 43.) In comparison to the arson statute, however, subsection (a)(1) of the aggravated arson statute, under which defendant was charged, additionally requires a showing that the offender committed the arson with the knowledge that someone was in the structure. In upholding a conviction under this section, the court in People v. Thomas (1990), 137 Ill. 2d 500, 521, 532, 561 N.E.2d 57, found it clear that the aggravated arson statute is designed to escalate the punishment for arsons committed with the knowledge by the offender that someone is likely to get hurt or killed or for arsons that actually cause injury or death. Thus, defendant’s argument that subsection (a)(1) of the aggravated arson statute is invalid because it does not require specific intent to kill or harm persons or any different mental state than does the arson statute is without merit.

Defendant also argues that the aggravated arson statute, as applied to him, is unconstitutional because, as a Class X felony, the penalty is disproportionate to the seriousness of the offense. He argues that unlike the harm caused by other Class X felonies, such as murder, aggravated criminal sexual assault and armed robbery, there was no injury to anyone in this case, and the property damage amounted to no more than the smudging of the front door from the smoke of the burned leaves, which were extinguished without the aid of the fire department and without the necessity for evacuation of the building.

The legislature has wide discretion under the State’s police powers to prescribe penalties for defined offenses. The standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. The determination of reasonableness is a matter for the courts, and legislation will not be invalidated unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable. People v. Morris (1990), 136 Ill. 2d 157, 554 N.E.2d 235.

Initially, we reiterate our earlier determination that the testimonial and demonstrative evidence presented in this case belies defendant’s assertion that the property damage consisted only of smoke discoloration and smudging. Further, it is immaterial, under the statute, whether defendant intended to kill or injure anyone or, even, that no one was injured as a result of his conduct. The gist of subsection (a)(1) is to punish more severely than the arson statute an arson which could cause death or injury to persons the arsonist knows or should know are inside the structure. People v. Thomas, 137 Ill. 2d at 532.

In this case, the arson occurred during the early morning hours when several people in the apartment building were sleeping. Defendant poured gasoline around the outside and into the vestibule of the building, lit the fire at the front door, potentially preventing any escape from that exit of the building, and then attempted to leave the scene. It was fortuitous that Gloria Snow and her daughter were awake and able to summon the police, that the responding officers were only a few blocks away, and that they were therefore able to respond promptly and extinguish the fire before it grew to catastrophic proportions. However, defendant should not be allowed to benefit from the prompt action of the potential victims and the police, without which defendant’s conduct may well have resulted in injury to or the death of one or more of the six persons in the building. Moreover, although defendant was eligible for a sentence of up to 30 years’ imprisonment under the Class X sentencing provision, the trial court imposed a term of 12 years, only 6 years greater than the minimum. See People v. Burrett (1991), 216 Ill. App. 3d 185, 576 N.E.2d 293 (18-year sentence upheld where firebombing caused only property damage).

It is well settled that legislative enactments carry a strong presumption of constitutionality, and, thus, a party challenging a statute has the burden of clearly establishing its invalidity. It is the duty of the courts to construe acts of the legislature so as to affirm their constitutionality and validity if it can be reasonably done, and any doubts are to be resolved in favor of the validity of the statute. (People v. Inghram (1987), 118 Ill. 2d 140, 514 N.E.2d 977.) In the instant case, defendant has failed to establish a constitutional infirmity in the aggravated arson statute as written or in its application to him.

For the reasons stated, defendant’s conviction and sentence are affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.

       Justice McMorrow participated in the disposition of this case prior to her becoming a member of the supreme court of Illinois.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYNOR GIL et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1 — 90—3615, 1—91—0233 cons.
    Opinion filed December 14, 1992.

      O’Connor & Kelly, of Chicago (William J. O'Connor, of counsel), for appellant Mynor Gil.
    Rita A. Fry, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant George Perez.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and John E. Gilhooly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a double jury trial in the circuit court of Cook County, defendants Mynor Gil and George Perez were found guilty of first degree murder. Perez was sentenced to 25 years’ imprisonment; Gil was given a 20-year sentence. Defendants filed separate appeals, which this court consolidated. For the following reasons, we affirm.

The records on appeal indicate that following hearings on motions in limine and jury selection, the State called Chicago police officer Paul Velasquez as the first witness at trial. Officer Velasquez testified that on November 21, 1988, he was off duty, driving northbound on Western Avenue. He was slowing down for a stoplight near 18th Street when he heard two gunshots. Officer Velasquez looked to his right, where he saw a silver 1975 Ford Grenada stopped alongside a Chicago Transit Authority (CTA) bus shelter. He saw the car speed away from the shelter and noticed a man standing inside the enclosure. The car turned onto 18th Street, where it again stopped even with the bus shelter. Officer Velasquez then saw and heard three or four more gunshots from the rear passenger side of the Grenada, fired toward the man at the shelter, who was later identified as Epifanio Guzman Mendez. At the same time, Mendez picked up a bottle and threw it toward the car; the bottle fell short of the car. The Grenada sped away and Mendez fell to the ground. Officer Velasquez went to a nearby telephone to notify the police of the shooting and give a description of the car.

Officer Velasquez then returned to the scene of the shooting to attempt to aid the victim. Shortly thereafter, the first police car and an ambulance arrived on the scene. About 15 minutes later, Velasquez saw police officers return with the Grenada. According to Velasquez, he did not see any other persons or cars in the area at the time of the shooting.

On cross-examination before the Perez jury, Officer Velasquez admitted he did not see the first two gunshots. He also stated that the intersection where the shooting occurred is a well-lit main intersection. On cross-examination before the Gil jury, Officer Velasquez admitted that he could not see Mendez when he heard the first shots. He also added that he found glass on Western Avenue in the area where the bottle fell.

Chicago police officer David Koziol testified before both juries that on the date in question, he responded to the report of the shooting. While at the scene, he saw Officer Ann Cleary arrive in a silver Ford Grenada, search the car and recover a chrome revolver from the rear driver’s area. Officer Koziol also recovered a fired bullet from the rear of the bus shelter.

On cross-examination before the Perez jury, Officer Koziol testified that he also saw Officer Cleary remove six spent cartridges from the revolver. Officer Koziol took no pictures of the Grenada, but observed nothing unusual, such as broken windows or bullet holes, to photograph. Officer Koziol stated that a photograph was taken of the bullet hole in the bus shelter. On cross-examination before the Gil jury, Officer Koziol stated that he did not find any broken glass at the scene and that Officer Velasquez did not direct him to broken glass. He also stated that he did not examine the Grenada for bullet holes and did not observe the passenger side of the car at the scene.

Officer Ann Cleary testified before both juries that she heard the reports of the shooting while on patrol on the night in question. The radio message also contained a description of the silver Grenada. At the intersection of Roosevelt and Loomis, she saw a silver Grenada containing four male Hispanics driving eastbound on Roosevelt and turning onto Loomis. Officer Cleary and her partner followed the Grenada for several blocks, when the Grenada turned the wrong way onto a one-way street. Officer Cleary activated the squad car’s mars lights and attempted to stop the Grenada. Officer Cleary saw the left rear passenger bend down and sit up several times. The Grenada stopped over a full city block later.

Officer Cleary testified that the occupants of the Grenada were ordered out of the car. Officer Cleary stated that the driver was later known as Horatio Albor, the front passenger was later known as Manuel Sifuentes, the right rear passenger was later known as Perez and the left rear passenger was known as Gil. Officer Cleary stated that it was Gil whom she saw bending down and sitting up while she was stopping the Grenada. She drove the Grenada back to the scene of the shooting, where it was identified by Officer Velasquez. Officer Cleary searched the car, finding a chrome .357 Smith & Wesson revolver with six spent cartridges under the rear driver-side seat. The car, gun and bullets were taken to the police station. The gun and bullets were identified in court by Officer Cleary. On cross-examination before the Perez jury, Officer Cleary stated that there was no high-speed chase involved and that she saw no bullet holes or broken windows on the Grenada.

Officer Vincent Lomoro, who was employed for 26 years in the firearms identification section of the Chicago police department crime laboratory, testified that after examining the bullet recovered from the scene and the gun recovered from the Grenada, he concluded that the gun had fired the bullet.

Officer James Spratte, a gang crimes specialist with the Chicago police department, testified that in November 1988, The La Raza and Party People street gangs were at war with the Disciples street gang. Officer Spratte identified Gil as a member of La Raza and Perez as a member of the Party People.

Doctor Tae An, an assistant medical examiner for the Cook County medical examiner’s office, testified that he performed an autopsy on Mendez on November 22, 1988. Dr. An observed that Mendez had suffered bullet wounds to the back and mid-abdomen. As a result of the autopsy, Dr. An concluded that the cause of Mendez’ death was the gunshot wound to the back.

Detective Michael Puttin testified that on November 21, 1988, he was assigned to the shooting at issue. Arriving at the police station, he discovered that four suspects had been taken into custody and were being held in the same room. Detective Puttin immediately instructed officers to separate the suspects. Before their respective juries, Detective Puttin testified that after informing defendants of their constitutional rights he obtained statements from each. He then contacted the State’s Attorney’s office felony review unit. In the early morning hours of November 22, 1988, Assistant State’s Attorney James Tyrell arrived and, after informing defendants of their constitutional rights, obtained signed written statements from Gil and Perez.

James Tyrell corroborated these later events in his testimony before each jury. He then published each defendant’s written statement to his respective jury, the contents of which were similar to the oral statements to which Detective Puttin had testified.

In his written statement, Gil indicated that on the night in question, he and others planned their evening and decided they would “get some Disciples” because a friend of Perez had been hospitalized after being beaten by the Disciples. When Perez got into the back seat of the car, Gil saw Perez had a gun. On 19th Street, Gil saw a man he recognized as a Disciple get out of a car and enter a liquor store. Gil admitted he was a member of the Party People. The car in which Gil was riding followed the other car to the corner of 18th and Western. Gil was sitting behind the driver; Perez sat next to Gil. At the corner, a man got out of the other car and threw a bottle at their car, then ran. Perez took out his gun and fired it six times. Gil believed that the Disciple ran away and that Mendez was shot by accident. After Perez fired his gun, the four men drove off in pursuit of the car containing Disciples, but were pulled over by the police. As their car was being pulled over, Perez gave the gun to Gil and told Gil to hide it. Gil hid the gun under the rug behind the driver’s seat.

The written statement taken from Perez was substantially similar to Gil’s written statement. One difference was that Perez stated that the man who got out of the other car reached into his coat before Perez fired his gun.

Three witnesses testified for defendants. The first was Mr. Kenneth Cleveland, a CTA bus driver. He testified that on November 21, 1988, while stopped at the intersection of 18th and Western at about 8:15 p.m., he saw a man apparently pleading for his life with a group of other men. He heard gunshots and saw the man fall to the ground as the others ran away. Mr. Cleveland returned to the intersection later in the evening, but saw nothing. Mr. Cleveland admitted that he was unable to identify this victim and that he made no report of the incident. Moreover, Mr. Cleveland could testify only that these events occurred “around” November 21, 1988. He admitted that there was a lot of violent activity on his bus route. Mr. Cleveland also testified that he was not warned of trouble in the area by another bus driver.

Mr. Ernest Jefferson, another CTA bus driver, testified that a man fired three shots at his bus as he drove through the intersection at issue at about 8:15 p.m. on the night in question. On his return route 45 minutes later, Mr. Jefferson saw no one at the intersection. He testified that shortly after being fired upon, he saw and warned Mr. Cleveland of trouble at the intersection. Mr. Jefferson did not report this incident and found dents, rather than bullet holes, in the back of his bus.

Manuel Sifuentes testified before both juries that on November 21, 1988, he went to Horatio Albor’s house to ask for a ride home. He, Albor, Gil and Perez all rode in Albor’s car. Albor drove, Sifuentes rode in the front passenger seat, Perez rode in the rear behind Sifuentes, and Gil sat behind Albor. Sifuentes testified that while they were driving on 18th Street, the car in front of theirs stopped; Sifuentes denied that they were following this car. According to Sifuentes, a man got out of the other car and went for his waist. Sifuentes heard two gunshots coming from outside the car and ducked down. He then heard shots from inside the car. Albor drove back toward his house. After the police stopped their car, Sifuentes noticed bullet holes in the front of the car.

On cross-examination, Sifuentes denied belonging to the Party People street gang. He admitted that he never saw anything in the hand of the man from the other car. Sifuentes stated that there were no other people in the area at the time of the shooting. Sifuentes admitted that he did not tell the police that someone had been shooting at them either after their car was stopped or at the police station. Nor did Sifuentes mention it to the assistant State’s Attorney when he gave a statement.

In rebuttal, Officer Koziol testified that he examined the Grenada in the early morning of November 22, 1988, and found no bullet holes. He admitted that the Grenada was accidentally destroyed after nobody came to claim it.

Assistant State’s Attorney Tyrell testified that he had taken a statement from Sifuentes hours after the shooting in which Sifuentes did not mention seeing bullet holes in the Grenada, but did state that the person from the other car had a bottle in his hand.

Detective Puttin testified that he had spoken with Sifuentes after the shooting. According to Detective Puttin, Sifuentes stated at that time that two voices in the back seat yelled “Disciples!” when they noticed the car in front of them on 18th Street. Sifuentes also told Detective Puttin that the man from the other car got out with a bottle in his hand, at which time he heard gunshots from within the Grenada. Sifuentes did not mention that he saw bullet holes in the Grenada.

Officer Spratte testified that Sifuentes had admitted that he was a member of the Party People two months before the shooting. Following closing arguments, the juries found their respective defendants guilty of first degree murder. Gil and Perez now appeal.

I

Gil argues that the State failed to prove that he was accountable for murder. Gil contends that the evidence against Perez is circumstantial and is not inconsistent with a reasonable hypothesis of innocence. The State correctly notes that the “reasonable hypothesis” standard is no longer the law in Illinois. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) The standard of review is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, after viewing the evidence in the light most favorable to the prosecution. (People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.) This court will not disturb a guilty verdict unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.

In this case, Officer Velasquez testified that the gunshots were fired from the rear passenger side of the Grenada where, according to Perez’s written statement and Officer Cleary’s testimony, Perez was sitting. The defendants’ statements also indicate that Perez fired his gun at the victim. Officer Velasquez saw Mendez fall to the ground after these shots were fired. A bullet found on the scene matched Perez’s gun. Mendez died from a gunshot wound.

Gil relies on Sifuentes’ testimony to argue that Mendez was shot by the Disciples. Officer Velasquez, however, testified that there were no other vehicles or people in the area during the shooting. It is axiomatic that it is the jury, not this court, that assesses the credibility of the witnesses. (People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190.) Viewed in the light most favorable to the State, a rational jury could have concluded that Perez was guilty of murder.

Gil next contends that the State failed to prove that he was accountable for the shooting. A person is accountable for the conduct of another if “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he so-

licits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) Under the “common design rule” embodied in section 5 — 2(c) of the Criminal Code of 1961, the State need only prove that defendant had the specific intent to promote or facilitate a crime to hold defendant accountable for any criminal act done in furtherance of the intended crime. (People v. Waln (1988), 169 Ill. App. 3d 264, 274, 523 N.E.2d 1318, 1325.) The State also may prove accountability by showing that the defendant attached himself to another bent on illegal acts with knowledge of the illegal design. (See People v. Harris (1990), 196 Ill. App. 3d 663, 671, 554 N.E.2d 367, 373.) Although the mere presence of a defendant at the scene of the crime does not render him or her accountable for that crime, a number of factors, including “proof that *** he maintained a close affiliation with his companions after the commission of the crime, and that he failed to report the crime are all factors which the trier of fact may consider in determining the defendant’s legal accountability.” People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 10-11, 460 N.E.2d 847, 850.

Here, Gil’s written statement indicated that the four men in the Grenada had “planned their evening” and that they decided to “get some Disciples” because a friend of Perez was hospitalized from a beating by the Disciples. Gil saw Perez had a gun when he got into the Grenada. Defense counsel contends Gil may have believed that Perez was carrying the gun for self-defense. However, given that Gil stated that the four men set out to “get some Disciples,” a rational juror might well conclude that defendants’ actions were consistent with provocation rather than self-defense.

Furthermore, Gil admitted he saw a Disciple get out of a car they were following. According to Detective Puttin, Sifuentes heard both voices in the back seat yell “Disciples!” when they spotted the car. Thus, a rational jury could conclude that Gil identified the Disciple knowing that Perez was armed and seeking revenge for the beating of his friend by the Disciples. The record does not show that Gil ever sought to disassociate himself from Perez or the others. Indeed, both defendants admit that after the shooting, Gil hid Perez’s gun. These circumstances permit the inference that Gil attached himself to persons bent on illegal acts, with knowledge even of Perez’s illegal design.

Gil argues that the State never proved that the phrase “to get some Disciples” meant “to perform some illegal act.” However, the State presented evidence of circumstances from which a rational jury could infer that this is exactly what the phrase meant. Gil argues that the State failed to prove that specific illegal activity was planned and thus failed to prove specific intent. However, as noted above, the State need only prove that Gil intended to promote or facilitate a crime; there was no need to prove that Gil specifically intended to promote or facilitate a murder.

In sum, a rational juror could have found Gil accountable for the murder of Epifanio Mendez.

II

Gil contends that the trial court erred in allowing the State to impeach Sifuentes with his post-arrest silence. Gil argues that the admission of the post-arrest silence violates Illinois evidentiary law. As Gil did not assert the foundational defect at trial, the issue could be deemed waived. See People v. Coleman (1989), 129 Ill. 2d 321, 340, 544 N.E.2d 330, 339.

Even if the issue had been preserved, it would not have persuaded this court. In People v. Godsey (1978), 74 Ill. 2d 64, 72-73, 383 N.E.2d 988, 992, the Illinois Supreme Court indicated that impeaching a defense witness with his or her post-arrest silence regarding an incident in which the witness and defendant were involved may unfairly prejudice a defendant because a jury may infer guilt on the part of the witness and transfer that inference to the defendant. (Godsey, 74 Ill. 2d at 75-76, 383 N.E.2d at 993-94.) Nevertheless, a witness may be impeached with his or her failure to offer an exculpatory explanation when his or her exculpatory trial testimony is manifestly inconsistent with statements made after arrest. (See, e.g., People v. Nolan (1987), 152 Ill. App. 3d 260, 267, 504 N.E.2d 205, 211 (defendant as witness).) The latter situation is more impeachment by prior inconsistent statement than by post-arrest silence.

The record here indicates that Sifuentes gave statements to the police and the assistant State’s Attorney following his arrest. Sifuentes did not mention that the Grenada had been fired upon in those statements, which is manifestly inconsistent with his trial testimony. The record indicates that the State failed to lay a foundation at trial establishing that Sifuentes gave statements to the police and assistant State’s Attorney. This could be considered error. (Godsey, 74 Ill. 2d at 72, 383 N.E.2d at 992.) However, as Sifuentes’ testimony on cross-examination and the State’s rebuttal evidence indicate that Sifuentes made statements after his arrest, the error, if it had been preserved for review, would have been deemed harmless.

III

Next, Gil and Perez both contend that the trial court erred by granting the State’s motion in limine, which precluded defendants from cross-examining Dr. An on a statement in the medical examiner’s report. Generally, wide latitude is allowed in the cross-examination of an expert witness. (People v. Buggs (1986), 112 Ill. 2d 284, 290, 493 N.E.2d 332, 334.) Nevertheless, rulings regarding the scope of cross-examination, including rulings on motions in limine, will not be reversed unless there is a clear abuse of discretion by the trial court. (See People v. Ortiz (1990), 207 Ill. App. 3d 1, 9, 565 N.E.2d 228, 233; People v. Escobar (1988), 168 Ill. App. 3d 30, 43, 522 N.E.2d 191, 199.) Section 115 — 5.1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5.1) provides, in relevant part:

“In any civil or criminal action the records of the coroner’s medical or laboratory examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business of the coroner’s office, duly certified by the county coroner or chief supervisory coroner’s pathologist or medical examiner, shall be received as competent evidence in any court of this State, to the extent permitted by this Section. These reports, specifically including but not limited to the pathologist’s protocol, autopsy reports and toxicological reports, shall be public documents and thereby may be admissible as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein.
A duly certified coroner’s protocol, or autopsy report, or both, complying with the requirements of this Section may be duly admitted into evidence as an exception to the hearsay rule as prima facie proof of the cause of death of the person to whom it relates. The records referred to in this Section shall be limited to the results of post-mortem examinations of the findings of autopsy and toxicological laboratory examinations.”

In this case, the report of the post-mortem examination concludes with the following:

“OPINION:
The subject was reportedly shot on the street, during exchange of gunfire. Death is considered to be related to gunshot wound of the back lacerating inferior vena cava, intestine, and mesentery.”

An offer of proof made during consideration of the State’s motion in limine indicates that the medical examiner’s information regarding the circumstances of death is usually obtained from the medical investigators, who in turn get their information from witnesses and the police. However, Dr. An was not sure of the source of the information regarding an “exchange of gunfire” in this case. The trial court also noted the statement of one of the defense attorneys that Dr. An did not rely on the disputed statement in reaching any of his findings.

Although parties may be given latitude to cross-examine an expert witness, the evidence to be elicited must be relevant to be admissible. (Buggs, 112 Ill. 2d at 290, 493 N.E.2d at 334.) Evidence may be rejected as irrelevant if it is uncertain, remote or would possibly cause unfair prejudice. (People v. Castro (1989), 190 Ill. App. 3d 227, 239, 546 N.E.2d 662, 669.) Based on the record, the trial court may have concluded that the contested statement was too uncertain. Section 115 — 5.1 does not affect the relevancy analysis; it provides that such statements may be admitted, but does not mandate admission. Moreover, the statement at issue may fall outside the scope of “results” or “findings” referred to in the statute. Therefore, the trial court acted within its discretion.

IV

Perez contends that he was denied a fair trial because the trial court granted the State’s motion to excuse venireman Darryl Butler for cause. The decision to grant or deny a challenge for cause rests within the discretion of the trial court. People v. Seaman (1990), 203 Ill. App. 3d 871, 889, 561 N.E.2d 188, 200.

In this case, the State moved to strike Mr. Butler because he had denied that he had ever been an accused, a complainant or a witness in a criminal case on his juror information form. The record indicates that the State produced a “rap sheet” indicating that Mr. Butler had been charged in one case and a defendant in another. The trial court noted that it asked Mr. Butler about addresses on the “rap sheet” and that Mr. Butler smiled and understood “what was happening in terms of the Rap Sheet.”

A venireperson may be excused for cause where he or she has been previously charged with various crimes. (Seaman, 203 Ill. App. 3d at 889, 561 N.E.2d at 200.) Thus, we conclude that the trial court acted within its discretion, particularly considering the indicia of dishonesty appearing in the record.

V

Perez contends that the trial court erred by denying his motion in limine to preclude the State from mentioning that his prior felony conviction was for the unlawful use of a weapon. Perez did not testify at his trial, which waives the issue on appeal. See People v. Hartfield (1985), 137 Ill. App. 3d 679, 684, 484 N.E.2d 1136, 1139.

Even if the argument had been preserved, it would not have prevailed. A trial court may, in its discretion, permit impeachment by evidence of a prior conviction when: (1) the offense was punishable by more than one year of imprisonment or involved dishonesty; (2) the conviction or release from confinement occurred within the preceding 10 years; and (3) the prejudicial effect of admitting it does not outweigh its probative value. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Perez does not contend on appeal that the prior conviction in this case does not meet the first two criteria set forth in Montgomery. Instead, Perez notes that under certain circumstances, the trial court may limit the State to referring to the conviction as a felony without identifying the crime. (People v. Williams (1985), 137 Ill. App. 3d 736, 743, 484 N.E.2d 1191, 1197.) Indeed, Perez contends that the “mere fact” approach taken in Williams should always apply. (Cf. People v. Kunze (1990), 193 Ill. App. 3d 708, 728-36, 550 N.E.2d 284, 297-303 (Steigmann, J., specially concurring).) However, Justice Steigmann’s concurrence in Kunze itself suggests that this is not the law in Illinois. Thus, it appears that the trial court acted within its discretion in denying Perez’s motion in limine.

VI

Finally, Perez argues that he was denied a fair trial due to the State’s comments during closing arguments. Prosecutors have wide latitude to comment on evidence and draw reasonable inferences therefrom and, absent a clear abuse of discretion, a court’s rulings on the scope of such comments will not be reversed on appeal. (People v. Rockman (1986), 144 Ill. App. 3d 801, 813, 494 N.E.2d 688, 696.) Prosecutors may not, however, argue facts not in evidence. (See People v. Beier (1963), 29 Ill. 2d 511, 516, 194 N.E.2d 280, 283.) Even so, such remarks do not warrant reversal unless they are so prejudicial that they constitute a material factor in the defendant’s conviction. People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340, 347.

Perez argues that it was improper for the State to argue that the shooting was an act of retribution. Given the record in this case, we cannot say that characterizing the shooting as motivated by the hospitalization of Perez’s friend was an unreasonable inference from the evidence.

Perez argues that it was improper for the State to argue that the four suspects collaborated on a common defense while held together at the police station. The record indicates that when defense counsel objected to this argument, the trial court instructed the jury to disregard any argument not based upon the evidence. Thus, any error in this regard was cured. See People v. Cisewski (1987), 118 Ill. 2d 163, 178, 514 N.E.2d 970, 976.

Perez next argues that the State improperly referred to Sifuentes as a “hired liar.” The record shows that Sifuentes’ testimony was impeached on a number of points at trial, which might justify characterizing Sifuentes as a liar. (See People v. Tiller (1982), 94 Ill. 2d 303, 319, 447 N.E.2d 174, 182.) However, as the State conceded at oral argument, there was no evidence that Sifuentes was paid for his testimony. 'Thus, the characterization was improper.

Perez contends that it was improper for the State to argue in rebuttal that the police would have taken photographs of the Grenada if there had been bullet holes in the car. The trial court overruled defense counsel’s objection on this point.

The record indicates that Officer Koziol testified that he examined the Grenada and found no bullet holes. The record further indicates that Officer Koziol testified that he did not see anything unusual about the car that would require that it be photographed. Thus, we cannot conclude that the trial court abused its discretion on this point.

In sum, given the record on appeal, we cannot conclude that the impact of the single uncured improper argument was so prejudicial that Perez was denied a fair trial. People v. Faysom (1985), 131 Ill. App. 3d 517, 525, 475 N.E.2d 945, 952.

For all of the the aforementioned reasons, we affirm the judgment of the circuit court of Cook County. As part of our judgment, we grant the State’s request and assess the defendants $50 as costs for this appeal and $25 for the costs of oral argument.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LANDON SPRAWLS, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—1965
    Opinion filed December 9, 1992.
    Rita A. Fry, Public Defender, of Chicago (Henry L. Hams, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Jillian Cerone-Marisie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Landon Sprawls, was charged with murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1), armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2), and unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 3). Defendant was found guilty on all counts and sentenced to a term of natural life for murder; a 60-year extended term for armed robbery and three years’ imprisonment for unlawful restraint. Defendant appealed, and this court remanded the cause for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. (See People v. Sprawls (1990), 205 Ill. App. 3d 337, 562 N.E.2d 1065.) On remand, the trial court ruled that defendant failed to prove a prima facie case of racial discrimination. Defendant now appeals. We reverse and remand.

The sole issue for review is whether the trial court’s finding that defendant failed to establish a prima facie case of discrimination by the State in the exercise of its peremptory challenges was against the manifest weight of the evidence. During trial, the State exercised four peremptory challenges. The State used three of the four peremptory challenges to dismiss the following African-American venirepersons: Nancy McGee, Pierre Adams and Connie Cossi.

In the first appeal, defendant argued that the State improperly used its peremptory challenges to dismiss African-American venirepersons on the basis of their race. This court affirmed defendant’s conviction and sentence for murder, remanded the cause for an evidentiary hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, and ordered the trial court to determine whether the State had purposefully discriminated against African-American venirepersons in the exercise of its peremptory challenges. People v. Sprawls (1990), 205 Ill. App. 3d 337, 342-43, 562 N.E.2d 1065, 1069-70.

Prior to the Batson hearing on remand, a stipulation was drafted pertaining to the race of the venirepersons and witnesses who testified before the trial court. At the beginning of the hearing, this stipulation was read into the record. The parties stipulated to the following facts: that 10 of the 29 venirepersons were African-American; that one of the African-American venirepersons was excused from the jury due to a conflict with college final examinations; that five African-Americans served as jurors and one African-American was an alternate juror; and that 6 of the 13 witnesses who testified at trial were African-Americans.

Defendant later argued during the Batson hearing that 75% of the peremptory challenges exercised by the State were used against African-American venirepersons. Defense counsel maintained that the African-American venirepersons excused by the State were a heterogeneous group by virtue of their gender, age, occupation and marital status. Defense counsel further argued that the majority of the witnesses called at trial were white. In addition, defense counsel argued that race is an appropriate factor for the trial court to consider because defendant, who is an African-American, is a member of a cognizable racial group.

The State maintained that its use of peremptory challenges was proper. The State argued that 10 of the 29 prospective jurors were African-American, and that of the 10 African-American venirepersons, one was excused due to student obligations, leaving only nine African-American venirepersons available to the State. The State also argued that six of the venirepersons were accepted by the State and served on the jury, five on the regular jury and one as an alternate. The State further maintained that it exercised only four of its seven available challenges. In addition, the State argued that all six civilian witnesses were African-American, the victim was African-American and the State accepted twice as many African-American venirepersons as it excused. In response, defense counsel stated that at the time the Batson motion was made at trial, only one African-American venireperson had been accepted by the State.

In order to establish a prima facie case of racial discrimination by the prosecution in the exercise of its peremptory challenges, a defendant need now only prove relevant circumstances which raise a reasonable inference that the State used its peremptory challenges to exclude a member of the venire on the basis of race. (Powers v. Ohio (1991), 499 U.S. 400, 416, 113 L. Ed. 2d 411, 429, 111 S. Ct. 1364, 1373-74; People v. Kindelan (1991), 213 Ill. App. 3d 548, 552-55, 572 N.E.2d 1138, 1140-42.) The Illinois Supreme Court has identified a number of relevant circumstances for the trial court to consider when determining whether a defendant has established a prima facie case. Relevant circumstances include: a pattern of strikes against African-American venirepersons; the level of African-American representation in the venire as compared to the resulting jury; whether the African-Americans excluded from the venire were a heterogeneous group sharing race as their only common characteristic; and the race of the defendant, the victim, and the witnesses. Kindelan, 213 Ill. App. 3d at 553, 572 N.E.2d at 1140-41; People v. Mahaffey (1989), 128 Ill. 2d 388, 413, 539 N.E.2d 1172, 1184; People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351, 1357; People v. Evans (1988), 125 Ill. 2d 50, 63, 530 N.E.2d 1360, 1365.

A trial court’s determination as to whether a prima facie case of discrimination has been established will not be reversed unless it is against the manifest weight of the evidence. (Kindelan, 213 Ill. App. 3d at 553, 572 N.E.2d at 1141.) Here, it is significant that the venirepersons who were excused appear to be a heterogeneous group, sharing race as their only common characteristic. The African-Americans challenged by the State were of varying ages and marital status. The venirepersons ranged in ages from 20 to 55. Like the impaneled jurors, some of the venirepersons had children, some were male and others were female. One venireperson was divorced, one was single, and the third was married. All of the venirepersons had different occupations. These facts, coupled with all of the circumstances, are sufficient to raise a reasonable inference that the State used its peremptory challenges in a racially discriminatory manner.

The fact that some African-Americans were allowed to become jurors does not countervail an inference of racial discrimination as to the African-Americans who were excused. Accordingly, we conclude that defendant established a prima facie case of racial discrimination and that the trial court’s ruling was against the manifest weight of the evidence.

The trial court’s Batson ruling is therefore reversed, and the cause remanded in order that the State may present race-neutral justifications for excluding the relevant prospective jurors.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JESSE OWENS, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 92—2129
    Opinion filed December 11, 1992.

      Roland W. Burris, Attorney General, of Springfield, and Jack O’Malley, State’s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb and Donald J. Mizerk, Assistant State’s Attorneys, of counsel), for the People.
    Robert M. Hodge, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Jesse Owens, was charged with possession with intent to deliver between 15 and 100 grams of cocaine and possession with intent to deliver between 15 and 100 grams of cocaine on a public way within 1,000 feet of the real property comprising a school, namely Truman College, in violation of sections 401(a)(2) and 407(b)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56V2, pars. 1401(a)(2), 1407(b)(1), respectively). Section 407(b)(1) was added by Public Act 84 — 1075 (eff. December 2, 1985) as a sentence enhancement measure used to penalize more harshly drug trafficking that occurs near schools. Violation of this section is a Class X felony.

This appeal by the State arises from the trial court’s grant of defendant’s motion to dismiss the latter charge. Specifically, the trial court held that the “rule of lenity” prevented application of section 407(b)(1) in this case because Truman College was not the type of “school” the legislature intended to target when it added the sentence enhancement provision to section 407. Pursuant to Illinois Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)), the State has immediately appealed this ruling, prior to the trial court deciding the merits of the remaining charge. Thus, we are presented with a single issue for review, namely, whether the “rule of lenity” was properly applied in this case.

In view of the nature of the issue on appeal, only a brief recitation of the alleged facts is necessary. On April 13, 1991, police saw defendant and an associate engaging in numerous narcotics transactions on Wilson Avenue in Chicago across the street from Truman College. During these transactions, defendant’s associate approached several individuals, engaged in brief conversations, and accepted money from them. Each time he subsequently approached defendant, who took from his right pocket a small plastic bag and gave it to the associate in exchange for money. After observing three such transactions, the police arrested defendant. The officers recovered from his jacket pocket $415 and 82 plastic bags containing what appeared to be cocaine.

Section 407(b)(1) of the Act provides:

“(b) Any person who violates: (1) Subsection (b) of Section 401 in any school or residential property owned, operated and managed by a public housing agency or public park, on the real property comprising any school or residential property owned, operated and managed by a public housing agency or public park or on any public way within 1,000 feet of the real property comprising any school or residential property owned, operated and managed by a public housing agency or public park is guilty of a Class X felony, the fine for which shall not exceed $500,000.” (Emphasis added.) Ill. Rev. Stat. 1989, eh. SO1^, par. 1407(b)(1).

In reaching its decision that Truman College was not the sort of “school” to which the legislature intended section 407(b)(1) to apply, the trial court invoked the “rule of lenity.” The rule of lenity is a common law principle that seeks to benefit a defendant whenever the wording of a statute is ambiguous. Our supreme court has acknowledged that “a policy of lenity applies with respect to the interpretation of criminal statutes” where no legislative history exists to assist the court in determining whether the legislature intended an enhancement provision to apply to a given charge. (People v. Haron (1981), 85 Ill. 2d 261, 277-78, 422 N.E.2d 627, 634; see also People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48.) Where the intent of the legislature is “in any way clouded or uncertain,” the court must follow the established rules of construction relating to penal statutes. (People v. Carlock (1981), 102 Ill. App. 3d 1100, 1102, 430 N.E.2d 212, 214.) “A penal statute is to be construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute.” (Carlock, 102 Ill. App. 3d at 1102, 430 N.E.2d at 214.) If a statute enhancing a punishment is capable of two constructions, the one which works in favor of the accused should be adopted; “such a statute is highly penal and should not be extended in its application to cases which do not, by the strictest construction, fall within its terms.” (Carlock, 102 Ill. App. 3d at 1102, 430 N.E.2d at 214.) However, a reviewing court must construe a legislative enactment in such a way as to promote its essential purposes and must not read it so rigidly as to defeat the legislature’s intent. People v. Jordan (1984), 103 Ill. 2d 192, 205, 469 N.E.2d 569, 575.

In People v. Goldstein (1990), 204 Ill. App. 3d 1041, 562 N.E.2d 1183, this court examined the legislative history pertaining to Public Act 84 — 1075 and concluded that the legislature intended the term “any school,” as incorporated in the language of section 407(b) at issue here, to include “any public or private, elementary or secondary school, community college, college or university.” (Emphasis added.) (Goldstein, 204 Ill. App. 3d at 1048, 562 N.E.2d at 1187.) We reached this conclusion after noting the primary purpose of Public Act 84— 1075, which was to make Illinois schools a safer environment, one free from the pressures placed on students, primarily by gangs but also by others, to buy and sell firearms and drugs.

This court in Goldstein rejected the defendant’s argument that the legislature intended the meaning of “any school” to be confined to grade schools and high schools. In Goldstein, the defendant was convicted of carrying out various narcotics transactions on the campus of Southern Illinois University. This court held that application of section 407(b) extended to narcotics offenses committed on university grounds because of the large number of young persons of college age living and studying there.

In the present case, the trial judge found that Truman College was a “school” under section 407(b) for offenses occurring on Truman College grounds and for those occurring on the same side of the street as the college. However, he held that because of the school’s urban setting, it could not have been the intent of the legislature to include narcotics offenses occurring within 1,000 feet of the school’s northern boundary. Consequently, relying on the rule of lenity, he refused to apply section 407(b) because defendant was allegedly committing drug offenses across the street from the college. We hold that this was error.

As in Goldstein, we decline to apply a policy of lenity here. We reject defendant’s contention that the “safe school zone provision of section 407(b) is sufficiently ambiguous to invoke the ‘rule of [lenity].’ ” Following Goldstein, we conclude, as the trial court did here, that Truman College is a “school” under section 407(b). Furthermore, we believe that the legislature intended to create safe school zones around schools in addition to protecting the actual school grounds. While Truman College may be situated in an area populated by distinct groups of people apart from those attending Truman College, the fact remains that many of the students who attend there are “young persons of college age” who are part of the population which the legislature sought to protect when it enacted the statute at issue here. (Goldstein, 204 Ill. App. 3d at 1048, 562 N.E.2d at 1187.) We do not accept the contention that drug transactions which occur in the neighborhood surrounding Truman College have no negative impact on students who attend there. On the contrary, the mere risk that drugs may be readily available to students within close proximity to the college is an evil which we can reasonably conclude the legislature contemplated as one sought to be prevented by the statute at issue.

Furthermore, we find no evidence that the legislature intended to protect only rural school zones and not urban ones when it enacted the “1,000 feet” safe school boundary under section 407(b), and we are not free to “read a limitation into a statute that the legislature has not seen fit to enact.” Goldstein, 204 Ill. App. 3d at 1044, 562 N.E.2d at 1185; see also People v. Cochran (1988), 167 Ill. App. 3d 830, 522 N.E.2d 261.

In summary, we hold that section 407(b)(1) of the Act, in its entirety, is applicable to Truman College. Accordingly, the trial court’s dismissal of the charge is reversed and the cause is remanded for trial.

Reversed and remanded.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    HANOVER INSURANCE COMPANY, as subrogee of Mar-Lu Masonry, Inc., et al., Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 92—0626
    Opinion filed December 14, 1992.
    William A. Morgan and Iris E. Sholder, both of Board of Education of City of Chicago, of Chicago, for appellant.
    Crystal, Heytow & Warnick, P.C., of Chicago (Michael S. Sherman and Robin Kaplan, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This case comes before this court as a permissive appeal filed by defendant Board of Education of the City of Chicago (Board), pursuant to Illinois Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)), and concerns whether the Board is immune to a suit filed by plaintiff Hanover Insurance Company (Hanover) as subrogee of plaintiff Mar-Lu Masonry, Inc. (Mar-Lu), and plaintiff Tucker Pitts. On February 11, 1992, the circuit court of Cook County entered an order finding that there was a question of law for which a substantial difference of opinion exists, namely:

“Does §3 — 106 of the Tort Immunity Act bar a cause of action for negligence based on the condition of a school playground, where the injured party entered the property at the request of the property owner (Board) to make masonry repairs and did not enter the playground for recreational purposes!?]”

For the following reasons, we answer this question in the affirmative.

The record on appeal discloses the following facts. On or about April 30, 1987, the Board was the owner of the Johnson Elementary School in Chicago, Illinois. At this time, the Board had retained Mar-Lu to perform masonry work at the school. Tucker Pitts, a Mar-Lu employee, slipped and fell on cracked and uneven concrete located on the playground of the school while performing masonry repairs.

Hanover had issued an insurance policy to Mar-Lu wherein Hanover agreed to compensate Mar-Lu employees for injuries sustained in the course of their employment. Pursuant to this policy and the demand of Mar-Lu, Hanover paid $10,671.94 to indemnify Pitts for losses resulting from his injury.

Hanover, as subrogee of Mar-Lu and Pitts, then filed suit against the Board. Hanover alleged that Pitts’ injuries were caused by the Board’s negligent maintenance of the playground. The Board moved to dismiss the complaint under section 2 — 619(a)(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)). The Board asserted that it was immune from suit under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, pars. 1 — 101 through 9 — 107 (Tort Immunity Act or Act).

On January 23, 1992, the trial court entered an order denying the Board’s motion to dismiss. Subsequently, the Board asked the trial court to certify the question for interlocutory appeal. The trial court entered an order posing the certified question on February 11, 1992. The Board then applied for leave to appeal to this court, which was allowed on April 20, 1992.

The certified question is one of statutory construction. “The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent.” (Annen v. Village of McNabb (1990), 192 Ill. App. 3d 711, 713, 548 N.E.2d 1383, 1384.) The best indicator of that intent is the language of the statute itself; when the language is clear and unambiguous, courts will not read exceptions into the statute. (Beghr Willowbrook Venture v. Village of Willowbrook (1991), 217 Ill. App. 3d 614, 617, 576 N.E.2d 853, 855.) The express purpose of the Tort Immunity Act is “to protect local public entities *** from liabilities arising from the operation of government.” Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101.1(a).

Section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106) provides:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.”

It is undisputed that the Board is a local public entity and that the playground in this case is public property within the meaning of the Act. (Ill. Rev. Stat. 1987, ch. 85, pars. 1 — 206, 3 — 101.) The issue is whether the phrase “intended or permitted to be used for recreational purposes” refers to the character of the property or to the use of the property by the injured party.

When construing a statute, a court should consider each section in connection with every other section, rather than in isolation. (See Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318, 547 N.E.2d 437, 443.) Plaintiff points to the title of section 3 — 106, “Property Used for a Recreational Purpose,” as evidence that the trial court’s ruling was correct. Titles or captions provided by the compiler or publisher of Illinois Revised Statutes are not part of the official title of the statute and cannot limit the statute’s plain meaning. (People v. Jones (1991), 217 Ill. App. 3d 175, 177, 576 N.E.2d 1138, 1138, rev’d on other grounds (1992), 149 Ill. 2d 288, 595 N.E.2d 1071, citing People v. Flaherty (1947), 396 Ill. 304, 313-14, 71 N.E.2d 779, 784; People v. Trigg (1968), 97 Ill. App. 2d 261, 269-70, 240 N.E.2d 130, 134.) Moreover, the title says nothing about whether the individual use of the property controls over the general or common use of the property.

Construing the language of the Act as a whole, we note that section 3 — 102(a) provides in part:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 3— 102(a).)

Section 3 — 102(a) addresses “intended and permitted” users of property of a local public entity. (See, e.g., Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, 567 N.E.2d 592.) Section 3-106 addresses “public property intended or permitted to be used for recreational purposes.” (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106.) In this latter context, the phrase “intended or permitted” modifies “public property” rather than “people.” Had the legislature intended to refer to intended or permitted users of public property in section 3 — 106, it could have used language identical to that used in section 3 — 102(a). Thus, we conclude that the scope of section 3 — 106, when viewed in the context of the entire Act, is determined by the character of the property, rather than the injured party’s use of that property.

Even if section 3 — 106 were deemed ambiguous in this respect, the rules of statutory construction would support our conclusion. Turning to the purpose of the Act, plaintiff argues in its brief that “when enacting [sjection 3 — 106, the legislature was attempting to make certain that public entities would not need to serve as insurers against all injuries which may occur on property used for recreational purposes.” Plaintiff relies on Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409, for this proposition, but no such statement appears there. Even if it did, it would not answer the certified question in this case. This court has held that the purpose of section 3 — 106 is to encourage the development and maintenance of parks, playgrounds and similar areas. (Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 86, 491 N.E.2d 165, 168.) We note that this description does not focus on the use of those areas.

This court may also compare the Act to other statutes upon related subjects, even if the other statutes are not strictly in pari materia. (Board of Trustees of Community College District No. 508 v. Taylor (1983), 114 Ill. App. 3d 318, 323, 448 N.E.2d 1171, 1174.) The Recreational Use of Land and Water Areas Act (Ill. Rev. Stat. 1987, ch. 70, pars. 31 through 37) (RULWAA) addresses both immunity and the recreational use of property. Under this statute, the general rule is that “an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 70, par. 33.) One of the exceptions to the rule is “[flor injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 70, par. 36(b).

Therefore, the scope of immunity under the RULWAA is based on the injured party’s intended use of the land. If the legislature intended that the scope of immunity afforded by section 3 — 106 be based on each individual’s use of the land, it could have employed language of the sort used in the RULWAA.

Aside from the language of section 3 — 106 and the language of the RULWAA, the case law interpreting section 3 — 106 further supports our conclusion. For example, in Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, the plaintiff sued for injuries she sustained while roller skating on a public sidewalk in a residential neighborhood. (Larson, 142 Ill. App. 3d at 83, 491 N.E.2d at 166.) On appeal, the City of Chicago asserted “that the scope of immunity granted by section 3 — 106 should be determined by how the public property is used by the injured party.” (Larson, 142 Ill. App. 3d at 86, 491 N.E.2d at 168.) This court stated that “this would be an unwarranted interpretation of section 3 — 106.” (Larson, 142 Ill. App. 3d at 86, 491 N.E.2d at 168.) The Larson court explained that a public sidewalk in a residential neighborhood is not an area designated for recreational purposes, such as a park or playground. (Larson, 142 Ill. App. 3d at 87, 491 N.E.2d at 168.) Thus, the Larson court concluded that it is the character of the property, rather than the injured party’s use of that property, that triggers section 3 — 106.

Plaintiff argues that this court has looked to the plaintiff’s use of the property in cases after Larson. For example, in Ramos v. Waukegan Community School District No. 60 (1989), 188 Ill. App. 3d 1031, 544 N.E.2d 1302, this court upheld a ruling that a school district was immune where the plaintiff tripped while skipping rope on a cracked sidewalk on school property. The plaintiff argued that section 3 — 106 did not apply because she was not injured on the school playground. Although the Ramos court did note that plaintiff had been using the sidewalk for a recreational purpose at the time of her injury, the court extended the scope of immunity to the sidewalk “because of the common use of nonplayground school property to conduct such activities.” (Ramos, 188 Ill. App. 3d at 1037, 544 N.E.2d at 1306.) Therefore, like Larson, Ramos turns on the common use or character of the property, rather than the use of a specific person.

Similarly, in Annen, this court held that section 3 — 106 immunized a municipal corporation where the plaintiff was injured while using a rest room located in a park. Plaintiff notes that the Annen court stated:

“While a restroom building itself is not intended to be used for recreational purposes, it allows a park user to continue using the park without having to leave the park to use restroom facilities.” (Annen, 192 Ill. App. 3d at 713, 548 N.E.2d at 1384.)

Immediately prior to the above quotation, however, the Annen court stated: “A restroom facility located within a park is a part of the park.” (Annen, 192 Ill. App. 3d at 713, 548 N.E.2d at 1384.) Again, this court focused on the character of the area as a whole, rather than whether the injured person was engaged in a nonrecreational activity at the time of injury.

Finally, plaintiff contends that public policy dictates that the scope of section 3 — 106 should be determined by each person’s use of the property. Plaintiff relies on cases stating the general rule that a possessor of land owes a duty of reasonable care to business invitees. However, plaintiff offers no authority for the proposition that this court may disregard the statutory scheme of the Tort Immunity Act to apply that rule.

In sum, regardless of whether this court examines the plain language of section 3 — 106 by itself, in conjunction with the RULWAA or this court’s precedent, we conclude that the immunity afforded by section 3 — 106 arises from the character or common use of the property, not from the actual or intended use of that property by the injured party.

Accordingly, we answer the certified question in the affirmative, reverse the order of the circuit court of Cook County that denied the Board’s motion to dismiss and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

O’CONNOR and MANNING, JJ., concur.