author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM T. FRITZ, Defendant-Appellant.
    Third District
    No. 3-90-0578
    Opinion filed January 24, 1992.
    Rehearing denied March 25, 1992.
    Lawrence Bapst, of State Appellate Defender’s Office, of Springfield, and Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, William T. Fritz, was convicted of seven counts of theft of over $300 (Ill. Rev. Stat. 1989, ch. 38, par. 16—1). He appeals. We affirm.

The record shows that on December 1, 1989, the defendant was charged with six counts of theft of over $300. Each count alleged that by the use of deception, the defendant had obtained control over the property of Carol Nisly. On December 12, 1989, the State filed a notice to the defendant to appear in court on December 18,1989.

On December 18, the defendant appeared and stated that he intended to hire his own attorney. The court continued the cause until December 27 for a status hearing on the defendant’s efforts to obtain counsel. The court also set the preliminary hearing for January 4, 1990.

On December 27, the defendant told the court that he had still not hired a lawyer. The court continued the cause until January 3, 1990, for another status hearing on the defendant’s legal representation.

On January 3, the defendant told the court that although he had funds to hire an attorney, he had not yet retained one. He stated that he was willing to proceed pro se at the preliminary hearing. Because of the seriousness of the charges and the court’s belief that the defendant needed an attorney, the court appointed the public defender to sit by the defendant at the preliminary hearing as standby counsel.

The defendant represented himself at the preliminary hearing while the public defender sat by his side. The court found that the charges were supported by probable cause. It also set the arraignment for January 10,1990.

On January 10, the defendant appeared without counsel. He stated that he still intended to hire counsel, and that he had an appointment with one on January 19. The defendant then testified to his attempts to obtain counsel. He admitted that he had not contacted any local attorneys. He said he had contacted four or five attorneys in other cities, but the only one he could name was Paul Gazino.

The defendant then asked the court if the State’s Attorney’s signature on the information meant that he would be a witness against . him. The prosecutor pointed out that the defendant needed counsel to answer such questions. The defendant also asked if the State’s Attorney was a witness against him at the preliminary hearing.

The judge continued the cause to January 22 for a status hearing. He also ordered the defendant to either appear with counsel or bring a list of the attorneys he had contacted.

On January 22, the defendant appeared without counsel and said he had an appointment with Paul Gazino on January 25. He was willing to represent himself at the hearing. He also stated that three insurance companies he worked for were interested in the results of the proceedings and were willing to provide counsel for him. The prosecutor stated, however, that no insurance companies were involved in any of the charges.

The judge stated that the cause had to proceed and the defendant needed counsel. He therefore appointed the public defender to represent the defendant at the hearing. He also stated that if the defendant later hired private counsel, the public defender would withdraw. The court then conducted the arraignment.

The defendant made no more requests to represent himself, and the public defender represented him through the rest of the proceedings. The State later amended the information to state a seventh count of theft from Carol Nisly.

At trial, Carol Nisly testified that the defendant committed theft against her on the following dates: March 12, 1986; April 16, 1986; October 8, 1986; June 8, 1987; November 9, 1987; December 28, 1987; and April 11, 1988. Following the presentation of further testimony, the jury found the defendant guilty on all counts.

At the sentencing hearing, the court found it was necessary to sentence the defendant to consecutive terms in order to protect the public from further criminal conduct (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b)). The judge adopted the prosecutor’s argument as part of the basis for his finding. He also noted that the defendant continued his criminal activity even as he was being investigated. Thereafter, the court imposed three consecutive five-year terms of imprisonment and four concurrent five-year terms of imprisonment.

The defendant first argues on appeal that the trial court denied him his right to self-representation by appointing the public defender to assist him at the January 3 hearing and to represent him at the January 22 hearing.

A defendant has the right to represent himself in criminal proceedings. (People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415.) However, he may lose that right by engaging in serious and obstructionist misconduct, or if he cannot make a knowing and intelligent waiver. (People v. Ward (1991), 208 Ill. App. 3d 1073, 567 N.E.2d 642.) If there is some question about his ability to represent himself, it is also proper for the trial court to appoint the public defender as standby counsel. (People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165.) The trial court’s decision on the defendant’s self-representation will only be reversed if it was an abuse of discretion. See People v. Holmes (1987), 155 Ill. App. 3d 562, 508 N.E.2d 405.

The record shows that the defendant engaged in obstructionist misconduct before trial. Although he stated at five hearings that he would hire counsel, he never did so. As a result, the proceedings were delayed. This conduct, as well as his questions and comments about legal matters, also raised a serious question about his ability to make a knowing and intelligent waiver of counsel. Further, we note that he was allowed to proceed pro se at the January 3 hearing, and the public defender was merely standby counsel. Based on the foregoing, we find that the trial court did not abuse its discretion in appointing the public defender.

The defendant next argues that the trial court erred in imposing consecutive terms of imprisonment. He contends that consecutive terms were prohibited under section 5—8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(a)), because his offenses were committed as part of a single course of conduct and there was no substantial change in the nature of his criminal objective.

The State argues that section 5—8—4(b) sets forth an exception to section 5—8—4(a) if the court finds that consecutive sentences are necessary for the protection of the public. It further argues that the court properly made such a finding in this case.

Section 5—8—4 states:

“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective ***. ***
(b) The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4.

Reading the sections together, we find that section 5—8—4(b) does not allow the imposition of consecutive sentences if they are prohibited under the quoted language in section 5—8—4(a). Prior to its amendment by Public Act 85—1030, effective July 1, 1988, subsection (b) served to limit the application of subsection (a). The amendment altered section 5—8—4 in several ways. First, in amending subsection (a), the legislature added criminal sexual assault and aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12—13, 12—14) to those crimes which are punishable by consecutive sentences even though they were committed as part of a single course of conduct. Second, the legislature changed “may” to “shall,” indicating that when these specified crimes are committed, even though as part of a single course of conduct, consecutive sentences are mandatory.

After providing for mandatory consecutive sentencing for certain crimes in subsection (a), the amendment changed subsection (b) to avoid any inconsistency in the statutory language. Prior to amendment, subsection (b) provided that a court shall not impose a consecutive sentence in any case unless it was of the opinion that such a sentence was required to protect the public. After amendment of subsection (a), if consecutive sentences were mandatory in certain cases, it made no sense to forbid consecutive sentences in the absence of the special finding required by subsection (b). The legislature, in its amending act, therefore inserted the phrase “except as provided for in subsection (a)” into the language of subsection (b), thus saying that consecutive sentences may not be imposed unless the court finds they are required to protect the public, except where they have been made mandatory in subsection (a). Thus, it is our opinion that the legislature did not intend to convert subsection (b) from a limitation on consecutive sentences to an alternative means of imposing consecutive sentences.

At the sentencing hearing, the trial judge stated:

“The court does specifically find that the provisions of section 1005 —8—4(b) [sic], I think that it applies in this case and the court incorporates the arguments of the State in this sentencing hearing as the court’s findings in that regard ***.”

The State’s argument had seemed to indicate that section 5—8—4(b) was an exception to the language of section 5—8—4(a) and that section 5—8—4(b) could be used even where 5—8—4(a) ruled out consecutive sentences.

To the extent that the trial court’s sentence reflects an opinion that section 5—8—4(b) could be used to impose a consecutive sentence where barred by section 5—8—4(a), we believe the court was in error. We are of the opinion that if consecutive sentences are barred by section 5—8—4(a), then they cannot be imposed under section 5—8—4(b).

However, we are further of the opinion that the offenses of which the defendant was convicted in this case were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. We are of the opinion that the imposition of consecutive sentences was appropriate under section 5—8—4(a).

Section 5—8—4(a) was passed to eliminate the prejudicial effect of double punishment for multiple offenses that were motivated by the same criminal objective. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) In deciding whether consecutive sentences are prohibited by the section, we must determine which acts were independently motivated and which were merely part of a course of conduct guided by an overarching criminal objective. People v. Miller (1983), 115 Ill. App. 3d 592, 450 N.E.2d 767.

The defendant in Miller made two narcotics deliveries on different dates to the same undercover officer at the same location. The court upheld the imposition of consecutive sentences, noting that the second delivery was not motivated by the first, the defendant’s conduct and objectives differed in each delivery, and the criminal objective in each was satisfied upon the delivery of the agreed-upon consideration. Similarly, in People v. Shaw (1985), 133 Ill. App. 3d 391, 478 N.E.2d 1142, the court found that the defendant’s two theft offenses did not constitute a single course of conduct, even though each offense was part of a larger scheme of financial fraud.

In the instant case, each of the offenses was committed at different times and under different circumstances. In each instance, the criminal objective was satisfied when the victim turned the proceeds over to the defendant. Consequently, each offense was independently motivated. We therefore find that consecutive sentences were not prohibited under section 5—8—4(a), and that the trial judge could have properly imposed consecutive sentences under section 5—8—4(a).

We have reviewed the record in this case and find that the sentences imposed were not prohibited under section 5—8—4(a). Having so found, we also find that the trial judge’s finding that consecutive sentences were warranted under section 5—8—4(b) is also proper.

Under Supreme Court Rule 615(a), “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” (134 Ill. 2d R. 615(a).) As we have stated above, we believe the trial judge’s view of section 5—8—4(b) as an exception to 5—8— 4(a) was erroneous. However, because, in our view, consecutive sentences were proper under section 5—8—4(a), and thus the trial judge’s finding under section 5—8—4(b) is also correct, we find any error resulting from the trial judge’s interpretation of the statute to be harmless. We exercise our power under Supreme Court Rule 615 (b)(l) (134 Ill. 2d R. 615(b)(l)) to affirm the sentence based on our finding that consecutive sentences were not barred by section 5—8—4(a) and the trial judge’s finding that the consecutive sentences were necessary under section 5—8—4(b).

The judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    SCOTT P. GRANDON et al., Plaintiffs-Appellants, v. AMCORE TRUST COMPANY et al., Defendant-Appellee.
    Third District
    No. 3 — 91—0333
    Opinion filed January 30, 1992.
    Rehearing denied March 30, 1992.
    Conde, Stoner & Killoren, of Rochelle (Alan H. Cooper and Rodolphe J.A. de Seife, of counsel), for appellants.
    Ludens, Potter & Burch, of Morrison (Thomas J. Potter, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs are the majority shareholders of the Sterling Gazette Company. The plaintiffs brought suit to enforce a restrictive legend contained on 33 shares of company stock owned by the defendant trusts. The restrictive legend printed on the face of the disputed shares recites that they must be sold back to the company for $250 per share upon certain conditions. The plaintiffs claim the conditions for sale have been met. The defendants claim the restrictions are invalid. The trial court ruled that the plaintiffs failed to prove the validity of the restrictions. The plaintiffs appeal. We affirm.

The Sterling Gazette Company (SGC) is an Illinois corporation formed in 1903. SGC publishes the Sterling Daily Gazette, a daily newspaper. Majority ownership of SGC came into the Grandon family in the early part of this century. Each plaintiff acquired his or her shares in SGC from his or her paternal grandfather, Preston Grandon (Preston). Preston was the majority shareholder and publisher of the paper from 1943 until he died in 1968. After Preston’s death, SGC was run by David Grandon, Preston’s only child.

The defendant trusts acquired their shares from Marie Grandon (Marie), Preston’s third wife. Marie created the defendant trusts for the benefit of her children by a prior marriage, Robert Moncelle and Marjorie Taylor. Marie obtained the disputed shares during her marriage to Preston. The shares had been the property of Donald Dickinson, a director of SGC. When Dickinson died in 1964, the corporation authorized Preston, as president, to exercise its right to purchase Dickinson’s shares for $250 per share. The shares were then surrendered to SGC and reissued to Marie. The shares issued to Marie contained the same restrictive legend that had been printed on Dickinson’s shares. The restriction provided that the purchaser of the stock agreed to resell the stock to SGC for $250 per share upon the shareholder’s death or severance of his or her connection with the company.

When Marie died on July 16, 1978, included among her assets were the 33 shares of SGC stock she obtained in 1964. On November 15, 1978, Stephan Jablonsky, SGC’s business manager, wrote to the Central National Bank advising the bank that SGC wanted to acquire the 33 shares for the price of $250 per share. The bank responded that it would honor the restrictive legend “[b]ut feel we are obligated to request some form of documentation regarding the agreement.” Apparently, SGC made no reply to the bank’s request. In a letter dated April 16, 1979, SGC again offered to purchase the 33 restricted shares at $250 per share. The record does not contain a response to SGC’s offer.

On September 15, 1980, John Kuczynski, a trust officer at the bank, contacted Mr. Jablonsky concerning the 33 shares. Kuczynski informed Jablonsky that two trusts had been created by Marie Gran-don for the benefit of her children. According to the trust documents, the shares were to be divided equally among her two children and placed in trust. The bank then delivered the 33 shares to SGC and SGC issued new shares. SGC issued 16.5 shares designated for the Robert Moncelle Trust and 16.5 shares for the Marjorie Taylor Trust. These new shares contained the same restrictive legend printed on the original 33 shares.

On July, 10, 1986, SGC’s attorney wrote the bank’s trust department and informed them that the SGC board of directors had passed a resolution that the shares be redeemed at $250 per share. The bank refused to relinquish the shares. The present action then ensued.

After a bench trial, the court entered judgment in favor of the defendants. The court ruled that the plaintiffs failed to prove that the original 33 shares of stock were subject to a valid restriction. The court based its ruling on the fact SGC’s articles of incorporation did not authorize a second class of stock nor did the plaintiffs prove that Marie Grandon and SGC had entered into a separate contract for the issuance of the restricted shares.

In Illinois, the Close Corporation Act provides that a close corporation may place reasonable restrictions on the transfer of its stock if the restriction is conspicuously stated upon the face or back of the stock certificates. (Ill. Rev. Stat. 1985, ch. 32, par. 1201 et seq.) The Close Corporation Act also requires that any corporation desiring to be covered under the Act must register with the Secretary of State as a close corporation. (Ill. Rev. Stat. 1985, ch. 32, par. 1205.) Failure to register does not preclude a corporation from being treated as a close corporation. Instead, the nonregistered corporation must look to the common law if it desires close corporation treatment.

In the case at bar, SGC asserts it should be treated as a close corporation even though it failed to register. A review of the common law reveals that SGC meets the classic definition of a close corporation. A close corporation is defined as a corporation in which the stock is held in a few hands, or in a few families, and wherein it is not at all, or only rarely, dealt in by buying or selling. (Galler v. Galler (1964), 32 Ill. 2d 16, 26.) The reason SGC’s corporate status is important lies in the fundamental differences between the close corporation and the public issue corporation.

In general, the close corporation is not required to comply with the strict corporate formalities imposed upon the public-issue corporation and the close corporation is allowed greater control over the disposition of its stock than a public-issue corporation. The reason the two are treated differently is due to the fact the shareholder of a public-issue Corporation and his counterpart in the close corporation are not similarly situated. For example, the public-issue shareholder is normally not involved in the daily operations of the corporation and may freely sell his shares on the open market if he feels the management has failed to exercise sound business judgment.

In contrast, the close corporation shareholder often has a large total of his entire capital invested in the business and is intimately involved with the daily operations of the business. With no open market in which to sell his shares and only a small number of shares issued, the shareholders of the close corporation, in effect, become partners with the other shareholders. As one commentator noted:

“Since the success of a small corporation may depend on the business acumen of the participants, the shareholders may wish to make certain that they will not have to deal with possibly untalented or uncongenial associates in the future. Thus they may wish to limit the group to whom shares may be sold ***.” Hornstein, Stockholders’ Agreements in the Closely Held Corporation, 59 Yale L.J. 1040,1047-48 (1950).

The method most close corporations use to keep control of their stock is through stock transfer restrictions, normally contained in buy and sell agreements. (See 12 W. Fletcher, Cyclopedia of the Law of Private Corporations, at 5461.1 (1985).) Such restrictions usually require that upon the withdrawal or death of a stockholder, his or her shares will be sold or transferred only to the remaining stockholders or to the corporation or at least will be offered first to this group before being sold to outsiders. (See Annot., 54 A.L.R.3d 790, 796 (1974).) Such agreements usually contain a provision on the price at which the stock will be sold. This is true because there is generally no easy way in a close corporation to ascertain the stock’s fair market value. See Allen v. Biltmore Tissue Corp. (1957), 2 N.Y.2d 534, 161 N.Y.S.2d 418, 141 N.E.2d 812.

Transfer restrictions are usually contained in a corporation’s articles of incorporation, bylaws or in a shareholders buy-sell agreement. Since SGC’s articles of incorporation state its shares are freely transferable, and there is no evidence of a restrictive bylaw, our analysis is limited to shareholders agreements.

A shareholders agreement is a contractual arrangement in which the shareholders agree among themselves, or with the corporation, not to transfer or sell their stock to outsiders without first giving the shareholders or the corporation the opportunity to purchase their shares. As the Illinois Supreme Court noted in Vogel v. Melish (1964), 31 Ill. 2d 620: “The essence of the stockholder’s agreement is the granting of reciprocal options on the other party’s shares, or right of first refusal on those shares, as it is sometimes called.” (31 Ill. 2d at 624.) Being contractual in nature, the requirements for a valid contract (i.e., offer, acceptance, and consideration) must be established if the agreement is to be upheld.

The plaintiffs argue that Marie’s acceptance of the restricted shares constituted sufficient consideration to bind her and her successors. In support of this contention, the plaintiffs rely on Douglas v. Aurora Daily News Co. (1911), 160 Ill. App. 506.

In Douglas, the plaintiff’s employer, the Aurora Daily News, issued to the plaintiff stock bearing a restrictive legend. When the plaintiff severed his employment with the company, the company sought to enforce the stocks’ restrictive provision. The plaintiff argued that the provision was contractually invalid for lack of consideration. Even though the stock was transferred to the plaintiff as a “gratuity,” the court ruled the restriction was legally enforceable. The court based its ruling on the fact that even though the stock was given gratuitously, each side received a benefit from the transaction:

“[T]he original certificate was issued to Douglas, an employee of the Aurora Daily News, as a gratuity, with the object of making the employees of the paper feel a personal interest in the welfare of the Company.” 160 Ill. App. at 509.

Since the Douglas decision, numerous scholars and business experts have encouraged the use of employee stock option plans as a method of increasing employee productivity. (See Jensen & Meckling, Theory of the Firm: Managerial Behavior, Agency Costs & Ownership Structure, 3 J. Fin. Econ. 305 (1976); Demsetz, The Structure of Ownership & Theory of the Firm, 26 J.L. & Econ. 375 (1983); Coffee, Shareholders Versus Managers: The Strain in the Corporate Web, 85 Mich. L. Rev. 1 (1986).) The fundamental premise of these stock plans is that when an employer “gives” an employee stock, or the right to purchase stock, the employer receives a harder working employee and the employee receives a part of the company in return, a definite quid pro quo.

In contrast, the law presumes that exchanges of property or services between family members are truly gratuitous. For example, services rendered to family members, without a contract or agreement to pay therefor, are presumed to be gratuitous and do not constitute sufficient consideration to support a contract. (Meyer v. Meyer (1942), 379 Ill. 97, 39 N.E.2d 311.) Likewise, the law presumes a gift occurs when one spouse delivers property to the other. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) This presumption can be overcome by clear and convincing evidence that no gift was intended (Lawyer v. Lawyer (1974), 19 Ill. App. 3d 571, 312 N.E.2d 7), but the person seeking to overcome this presumption carries the burden of proof.

In the case at bar, the evidence indicates the disputed shares were issued to Marie Grandon as a gift from her husband, Preston Gran-don. As the trial court noted, “Mr. Jablonsky said Mr. Preston Gran-don gave the Stock to Marie. No party presented evidence of payment for those shares.” Because no evidence was presented to rebut the presumption that the shares were transferred to Marie as a gratuity, the trial court correctly ruled that the plaintiffs had failed to prove the validity of the restriction. There was no proof of any consideration which passed between the parties to support a finding of a contract in the nature of a buy and sell agreement.

The parties agree that Marie could only transfer to the defendant trusts the interest in the stock that she possessed. Likewise, any restriction on the stock which Marie transferred could only be valid if it was a valid restriction at the time Marie owned the stock. Since we have determined that Marie owned the stock unencumbered by any restriction, there was no such restriction which passed to the trust at the time of the assignment.

Furthermore, it is clear that no consideration passed between the trusts and the corporation which would support a buy and sell agreement. Therefore, we hold that there was no restriction against transfer of the shares at the time that Marie obtained the shares and there was no valid restriction on transfer of shares at the time that the trusts obtained a reissue of Marie’s shares by SGC.

The order of the circuit court of Whiteside County is hereby affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. ANDERSON, Defendant-Appellant.
    Third District
    No. 3 — 90—0807
    Opinion filed January 24, 1992.
    Rehearing denied March 24, 1992.

      Arthur J. Inman, of Peoria, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Donald R. Anderson, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14) after a jury trial and sentenced to a 15-year term of imprisonment. Defendant raises the following issues on appeal: (1) whether the trial court erred in denying defendant’s motion to suppress certain statements he allegedly made to investigators; (2) whether defendant was proved guilty beyond a reasonable doubt; (3) whether the trial court erred in admitting evidence of other crimes; (4) whether the court erred in admitting hearsay testimony of statements attributed to the victim; and (5) whether defendant’s sentence is arbitrary and excessive. We affirm defendant’s conviction and sentence.

SUPPRESSION HEARING

Defendant filed a motion to suppress certain statements he allegedly made in the presence of William St. Arnold, an investigator for the Department of Children and Family Services (DCFS), and John Pate, a special agent for the Division of Criminal Investigation of the Illinois State Police. The testimony presented at the suppression hearing indicated that St. Arnold, Pate and Janelle Beltramini, director of the State’s Attorney’s child protection services division, went to the clothing store owned by defendant on May 31, 1990, to interview him regarding complaints by defendant’s adopted 10-year-old son, J.A., of sexual abuse. The investigators arrived at the store at approximately 2:40 p.m. The store was open for business but the defendant was alone. St. Arnold told the defendant why they had come, that he did not have to talk to them, and that he could ask them to leave at any time. No Miranda warnings were given to defendant.

According to St. Arnold, defendant agreed to talk to the investigators and they interviewed him for about an hour before being interrupted by a telephone call from defendant’s wife. Shortly thereafter, Mrs. Anderson entered the store and told the defendant that he shouldn’t talk to the investigators unless his attorney was present. The defendant responded that he wanted to get the matter cleared up and Mrs. Anderson left. The investigators continued to interview the defendant, although there were several interruptions while defendant spoke briefly to people who entered the store. St. Arnold testified that after Beltramini left for an appointment, the defendant admitted that he had kissed J.A.’s penis on three or four occasions. Shortly thereafter Mrs. Anderson returned to the store and defendant then twice repeated the statement that he had kissed J.A.’s penis. Mrs. Anderson telephoned an attorney, and St. Arnold and Pate left the store. St. Arnold testified that at no time during the interview did the defendant ask the investigators to leave the store or seek to end the interview.

On cross-examination, St. Arnold acknowledged that the reason for interviewing the defendant was to gather evidence regarding J.A.’s claims of sexual abuse. St. Arnold denied shouting at the defendant and also denied shaking his fist at Mrs. Anderson and telling her to leave the store. Beltramini’s testimony was substantially in accord with St. Arnold’s, although she did not hear defendant’s alleged admissions of kissing J.A.’s penis because she left for an appointment before the statements were made. Pate’s testimony concerning the interview of defendant was consistent with that related by St. Arnold, including that defendant had admitted kissing J.A.’s penis on three or four occasions and that defendant twice repeated the statement in Mrs. Anderson’s presence.

Robert Lautzenhiser testified that he visited the defendant’s store on the afternoon of May 31, 1990. Upon entering the store, Lautzenhiser saw the defendant and his wife and two or three men that he didn’t recognize. The defendant appeared to be very agitated and he and one of the men were “practically nose to nose” and talking in loud voices. Mrs. Anderson was very upset and she asked Lautzenhiser to leave the store because there was a problem with J.A.

William Nelson testified that he works at a drugstore near the defendant’s clothing store. On the afternoon of May 31, 1990, Mrs. Anderson entered the drugstore and was very upset. Nelson helped her telephone a lawyer and gave her a glass of water and a cigarette.

Defendant Donald Anderson testified that he was 61 years old, the owner of Anderson Clothing and Shoes, and a lifelong resident of Princeton, Illinois. St. Arnold, Pate and Beltramini came to his store on the afternoon of May 31, 1990, and introduced themselves. According to the defendant, St. Arnold stated that he wanted to discuss J.A.’s allegations of sexual abuse and that he would like to be able to tell the State’s Attorney that defendant had cooperated so that the State’s Attorney would take it easy on him. St. Arnold told the defendant that they had a good case against him, that J.A.’s story remained constant, and that defendant was guilty of molesting him. Defendant said that these accusations frightened him and he asked what he was supposed to have done. St. Arnold replied that defendant and J.A. had engaged in oral sex at the defendant’s clothing store. Defendant stated that St. Arnold was screaming and very upset and defendant denied the allegations.

Defendant further testified that he and St. Arnold discussed J.A.’s history of running away and other difficulties defendant had with J.A. Defendant denied admitting that he had kissed J.A.’s penis on three or four occasions. Several people, including Robert Lautzenhiser, entered the store while defendant was being questioned but defendant told them to come back at another time. Mrs. Anderson came to the store about an hour after the investigators arrived. According to defendant, St. Arnold shook his fist at Mrs. Anderson and told her to get out of the store. She tried to argue with St. Arnold and tried to use the telephone but was unable to because of the shouting. She then went to the drugstore to call an attorney.

Defendant testified that he did not receive any Miranda warnings, but he was told that he did not have to talk to the investigators and that they would leave at his request. However, defendant stated that he told the investigators three times that he wanted an attorney and also asked them to leave three times but they ignored his requests. Defendant again denied admitting that he kissed J.A.’s penis.

On cross-examination, defendant testified that the statement that the State’s Attorney would go easy on him if he cooperated frightened him. It did not, however, have any effect on his decision to cooperate or answer questions because he had made that decision before the statement was made. Although defendant responded negatively when asked whether he believed he was under arrest at any time during the interview, defendant also stated that when the investigators ignored his requests to leave he thought that he probably was not free to go. Defendant acknowledged that the investigators told him that he did not have to speak to them and that he could terminate the interview at any time and that he agreed to cooperate and answer their questions. The trial court denied defendant’s motion to suppress, finding that the interview was noncustodial and that the defendant’s statements were made voluntarily.

Defendant contends that the trial court erred in failing to suppress the statements in which he purportedly admitting kissing J.A.’s penis. Defendant first argues that the interview at his store was a custodial interrogation requiring Miranda warnings. We do not agree.

Miranda applies only to custodial interrogations. (People v. Finklea (1983), 119 Ill. App. 3d 448, 456 N.E.2d 680.) A defendant is in custody when, considering all the circumstances surrounding the questioning, a reasonable innocent person would have believed that he was not free to leave or was expressly or implicitly bound to remain in the presence of police. (People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) The factors to consider include: the location, time, length and mood of the interrogation; the number of interrogators and the presence or absence of friends or family of the defendant; any indication of formal arrest; whether the defendant voluntarily assisted in the investigation; whether the defendant was allowed to walk about the location of the questioning unaccompanied by his questioners; and the age, intelligence and mental makeup of the defendant. Finklea, 119 Ill. App. 3d 448, 456 N.E.2d 680; People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.

Based on the evidence presented at the suppression hearing, we find that the defendant was not in custody when he was questioned on May 31, 1990, and therefore no Miranda warnings were required. Defendant voluntarily submitted to questioning at his place of business. Although there was testimony that St. Arnold shouted at the defendant and told Mrs. Anderson to leave the store, the investigators testified to the contrary, and the resolution of such issues is the province of the trial court. Similarly, whether the defendant’s requests to terminate the interview were ignored was a question of fact for the trial judge. (See People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112 (whether defendant is in custody is a factual question determined on a case by case basis).) Defendant testified that he did not believe that he was under arrest at any time during the interview, that he was told that he did not have to answer any questions, and that he agreed to cooperate. Defendant also indicated that he briefly spoke with customers who entered the store during the questioning. Considering all the circumstances, we do not believe that defendant was in custody nor deprived of his freedom in any significant way.

Defendant also maintains that even if the interview was noncustodial, his statements should have been suppressed as involuntary. Although not entirely clear, defendant appears to argue that his statements were induced by the promise that the State’s Attorney would go easy on him if he cooperated or were coerced by the “accusatory, angry, and intense” mood of the questioning.

Whether a confession is voluntary depends upon an examination of the totality of the circumstances to determine whether the defendant’s will was overborne. (Foster, 195 Ill. App. 3d 926, 552 N.E.2d 1112.) A trial court’s finding of voluntariness will not be overturned unless it is against the manifest weight of the evidence. (People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949.) In this case the purported promise of leniency did not render defendant’s statement involuntary, since the defendant admitted that it had no effect on his decision to cooperate because he had made that decision prior to the promise. Nor do we believe that the angry and accusatory mood of the questioning as described by the defendant, even if believed by the trial judge, was sufficiently coercive to support a finding that the statements were made involuntarily.

TRIAL

Defendant’s next contention, that he was not proved guilty beyond a reasonable doubt, requires a review of the evidence presented at trial. Mary Lou Anderson, the defendant’s wife, described the clothing store as long and narrow with glass windows across the front and having a glass door. The shoe fitting area is in the back of the store and is visible from the street, even though there are waist-high counters in the store. Mrs. Anderson believed that even if someone was lying down behind the counters they could be seen from the street.

Mrs. Anderson told how she and the defendant adopted two girls and then adopted J.A., who was the brother or half-brother of one of the girls, when he was years old. J.A. had various medical problems, including a cleft palate, cleft lip, and club foot. He had been in several foster homes and exhibited behavioral problems such as punching and kicking his siblings and using profanity. J.A. would also frequently run away or stay away from home and the police would often have to be called to find him. Once he told police that he had been sleeping under the bleachers at a ballpark for three nights, although he had not. In June of 1989 the Andersons decided to relinquish custody of J.A. and he was placed in foster care. J.A. returned to the Andersons’ home in August of 1989 and shortly thereafter he began running away again. In November of 1989 J.A. was placed in the Zeller Mental Health Center for evaluation. J.A. was returned to the Andersons in January of 1990, but his behavioral problems resumed after a few weeks and he was removed from the Andersons’ home at their request on April 25, 1990, and placed in a foster home. Mrs. Anderson testified that J.A. and the defendant were not usually in the store alone together and J.A. had never expressed any fear of the defendant nor indicated that defendant was sexually abusing him.

J.A., who was 10 years old at the time of trial, testified that Mrs. Anderson usually took him to defendant’s store on Fridays to keep defendant company. J.A. related an incident that occurred at the store about a week before he was removed from the Andersons’ home in April of 1990. J.A. and the defendant were alone in the store on a Friday after the store had closed. According to J.A., after counting the day’s receipts, the defendant went to a comer area in the back of the store near the shoe chairs. Defendant lay down and pulled down his pants and underwear. Defendant then asked J.A. to lie down and lower his pants and underwear and he complied. Defendant put his hand on J.A.’s penis and moved it up and down for one or two minutes, asking J.A. if it felt good. J.A. did not reply, but at trial he testified that it felt “weird.” J.A. stated that he then stroked defendant’s penis at defendant’s request and defendant’s penis “got hard.” Defendant then sat up and bent over and put his mouth on J.A.’s penis for about a minute. J.A. described this as feeling “wrinkly” and “weird” and said that his penis got hard a little bit. The defendant then finished counting the day’s receipts and they went home.

J.A. further testified that similar incidents had taken place about once a week over the past two years, beginning when he was in second grade. On some of these occasions the defendant would say that his penis “was going to go off” and he would take out a handkerchief, put it over his penis, and wipe off the “yellowish white colored stuff” that came out of his penis. Defendant then washed out the handkerchief in a sink and put it on a line to dry. J.A. also testified that he sometimes put his mouth on defendant’s penis at his request and it was “wrinkly” and “after a while it got hard.”

J.A. testified that the reason that he often ran away or stayed out when he was not supposed to was because he was afraid of defendant. J.A. stated that he had not run away from his current foster home and that his school grades had improved from D’s and F’s to A’s and B’s. J.A. said that the reason he did not tell anyone about what was happening to him until a month after he left the Andersons was because he was living with defendant and was afraid defendant would hurt him.

Bruce Dannenberger, associate director of the Mental Health Center of La Salle County, testified that DCFS referred J.A. to him in June of 1989 for an assessment. Dannenberger met with J.A. 22 times in an attempt to determine why he repeatedly ran away, but he was unable to do so. Dannenberger asked J.A. a number of times if he was being sexually abused, but J.A. responded negatively. Because he was unable to discover the cause of J.A.’s behavioral problem, Dannenberger recommended an inpatient evaluation at Zeller Mental Health Center. J.A. was admitted to Zeller in November 1989 and remained there for about six weeks. Zeller was also unable to discover the nature of J.A.’s problems and he was returned to the Andersons in January 1990. J.A. continued to meet with Dannenberger. According to Dannenberger, on May 26, 1990, J.A. told him that defendant had been “playing with him.” In response to Dannenberger’s questions, J.A. explained that after defendant closed the store on Friday night they would go to the shoe department in the back of the store, where each would stroke the other’s penis and they would engage in oral sex. Dannenberger also noted that since leaving the Andersons’ home, J.A.’s attitude and school grades have improved markedly.

On cross-examination Dannenberger agreed that while J.A. was at Zeller he had been told that he would not be returning to the Andersons’ home and that J.A. indicated that he did want to return there. Dannenberger also agreed that when J.A. was removed from the Andersons’ home in April of 1990, he did not exhibit the kind of reaction one might expect from a child who had been removed from an abusive environment. At the time that J.A. was admitted to Zeller, Dannenberger had reached a working hypothesis that he was suffering from reactive attachment disorder of infancy or early childhood. Such a condition is marked by a disturbed social relatedness resulting from grossly pathogenic care during childhood, with onset of the condition occurring before age five.

William St. Arnold testified concerning an interview with J.A. on May 29, 1990, at Dannenberger’s office. St. Arnold asked J.A. to tell him what he had told Dannenberger at the counseling session on May 26. J.A. related that he and the defendant would go to the back of the store near the shoe chairs after the store was closed and engage in acts of mutual masturbation and oral sex. This usually occurred on Friday nights and had been taking place for about two years. J.A. demonstrated some of these acts using anatomically correct dolls given to him by St. Arnold. On some occasions the defendant would use a handkerchief to wipe himself off, then take the handkerchief to a sink in the back of the store, rinse it out and hang it on a wire across the sink to dry. J.A. also stated that other sexual incidents had taken place at defendant’s residence. According to St. Arnold, J.A. related these events in a narrative fashion and he was not asked leading questions. On cross-examination, St. Arnold admitted that while J.A. told him that the last incident of sexual activity occurred during the week before he was placed in a foster home on April 25, J.A. did not state specifically what happened during that last incident.

In addition to the testimony related above, St. Arnold also testified regarding the interview with defendant at his store and the statements defendant made with respect to kissing J.A.’s penis. This testimony was substantially the same as that given at the hearing on the motion to suppress, except that St. Arnold admitted that both he and the defendant raised their voices several times during the course of the questioning.

John Pate testified to an interview with J.A. at the Bureau County sheriff’s department on May 31, 1990. St. Arnold and Janelle Beltramini were present along with Pate and J.A. According to Pate, J.A. told how he and the defendant had engaged in sexual activity about once a week for the past two years. The details of the incidents were consistent with those given by J.A. at the interview with St. Arnold. J.A. also described the final incident of sexual activity which occurred in April and this description was consistent with that given by J.A. at trial. Pate’s testimony regarding the statements made by the defendant during the interview at his store was consistent with that given at the suppression hearing. Both Pate and Beltramini testified that they did not think that a person standing outside the clothing store and looking in would be able to see someone lying down by the shoe chairs.

Clarence Taylor, a Princeton police officer, testified that J.A. had been reported missing by his parents on Friday, April 20, 1990, and that he found J.A. and returned him to the Andersons’ home at 4:35 p.m. Taylor had picked up J.A. and returned him to his home on other occasions and J.A. had never complained of being abused. Lonnie Jones, J.A.’s fourth-grade teacher, also testified that J.A. had never complained of sexual abuse.

Defendant’s wife, Mary Lou Anderson, testified that after J.A. was brought home by Officer Taylor on April 20, he was locked in his room until 9 or 10 that evening, by which time the defendant had returned home after closing the store. Mrs. Anderson also testified regarding the questioning of defendant at the clothing store on May 31. She called the store around 3 p.m. and learned that the defendant was being questioned about J.A.’s accusations. When she arrived at the store, she heard screaming and hollering and St. Arnold walked towards her, raised his fist, and told her to get out of the store. St. Arnold then went back to shouting and accusing the defendant of sexual attacks, and defendant tried to defend himself by shouting back. Mrs. Anderson was unable to use the phone to call an attorney because St. Arnold would not move or stop talking, so she went to a drug store to make the call. When she returned to the store, St. Arnold told her that defendant had confessed but she told him that she did not believe it. Mrs. Anderson denied that defendant had admitted to her that he had kissed J.A.’s penis or committed any sexual act with J.A.

Stanley Peterson, a friend of the Andersons, testified that he was in the store visiting with the Andersons on Friday, April 13, 1990, and that he left with them when they closed the store. Peterson was unsure if he was at the store on April 20, although he often stayed there on Friday nights until closing time and he had never witnessed any sexual abuse by the defendant.

Defendant testified regarding J.A.’s behavioral problems, including hitting and kicking his sisters, taking off his clothes and exposing himself to them, and his habit of running or staying away from home. Defendant’s testimony concerning the questioning by the investigators at the store was substantially the same as he gave at the suppression hearing. He again denied admitting that he had kissed J.A.’s penis.

Robert Lautzenhiser testified, as he had at the suppression hearing, that when he entered the store on May 31 he saw the defendant and another man “nose-to-nose” talking in loud voices. On cross-examination Lautzenhiser stated that he did not see Beltramini in the store, but if she had been sitting down he wouldn’t have seen her because the counters blocked the view of the shoe area.

Ilene Anderson (no relation to defendant) testified in rebuttal that she had seen the defendant and a little boy leaving the clothing store alone on Friday nights on two or three occasions over a three-month period. She had also seen them in the store when no one else was there. On those occasions J.A. appeared to be jolly and talkative, however, and not angry or upset.

Defendant’s argument that he was not proved guilty beyond a reasonable doubt is primarily based on the following factors: (1) J.A. did not report the sexual abuse promptly; (2) J.A. denied being sexually abused when specifically asked by Dannenberger; (3) J.A. did not report it to the personnel at Zeller Mental Health Center; (4) neither Dannenberger nor Zeller diagnosed J.A. as suffering from ongoing sexual abuse; (5) J.A. expressed no fear of returning to the Andersons’ home; (6) Peterson’s testimony indicated that defendant and J.A. were only rarely alone on Friday nights; and (7) Lautzenhiser’s description of the questioning of defendant at his store supported defendant’s testimony and undermined the credibility of the testimony of the investigators.

When presented with a challenge to the sufficiency of the evidence, the relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Wheeler (1991), 216 Ill. App. 3d 609, 575 N.E.2d 1326.) With respect to J.A.’s reluctance to disclose the sexual abuse and the resultant inability of Dannenberger and the Zeller Mental Health Center to discover it, we note that the failure of a young victim of sexual abuse to make a prompt complaint is understandable given the child’s natural sense of shame, fear, guilt and embarrassment. (Wheeler, 216 Ill. App. 3d 609, 575 N.E.2d 1326; People

v. Lybarger (1990), 198 Ill. App. 3d 700, 555 N.E.2d 1264.) Moreover, J.A. testified that he did not tell anyone about the abuse because he was afraid that defendant would hurt him. While J.A.’s apparent willingness to return to the Andersons’ home could be viewed as inconsistent with his claim of sexual abuse, it is the jury’s function to assess the credibility of the witnesses and the weight to be given their testimony, and minor inconsistencies do not in themselves create a reasonable doubt (People v. Brisbon (1985), 106 111. 2d 342, 478 N.E.2d 402; People v. Escobedo (1986), 151 111. App. 3d 69, 502 N.E.2d 1263). Similarly, to the extent that the testimony of Peterson or Lautzenhiser conflicted with that of the other witnesses, the resolution of such conflicts is the province of the trier of fact, which is in a superior position to determine the witnesses’ credibility (Wheeler, 216 111. App. 3d 609, 575 N.E.2d 1326). Given the detailed, straightforward and convincing testimony of J.A., along with the purported admissions by defendant to the investigators, we find that there was ample evidence to support the jury’s conclusion that defendant was guilty beyond a reasonable doubt.

Defendant next contends that the trial court erred in admitting testimony of sexual misconduct between the defendant and J.A. which was not charged in the indictment. Prior to trial, defendant filed a motion in limine seeking to exclude evidence of uncharged sexual misconduct, which was denied. Specifically, defendant argues that J.A. should not have been allowed to state that the defendant had been sexually abusing him almost every Friday night for two years. Defendant claims that the prejudicial effect of this evidence outweighed its probative value and that the repetition of this evidence by Dannenberger, St. Arnold and Pate was fundamentally unfair and resulted in a denial of due process. We disagree.

Although evidence of other crimes is not admissible merely to show a defendant’s propensity to commit crimes, it is admissible when relevant for some other purpose such as to prove knowledge, intent, motive, absence of mistake or modus operandi. (People v. Lear (1991), 143 Ill. 2d 138, 572 N.E.2d 876; People v. Brown (1991), 214 Ill. App. 3d 836, 574 N.E.2d 190.) Furthermore, it is well established that in sexual offense cases evidence of a defendant’s prior sexual activity with the same child is admissible to show the defendant’s intent, design or course of conduct and to corroborate the victim’s testimony concerning the charged offense. (People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112; People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.) Limiting the complainant’s testimony to a single incident would make the incident appear isolated and would place an unfair strain on the credibility of the complainant’s testimony. (Tannahill, 152 Ill. App. 3d 882, 504 N.E.2d 1283.) We find no error.

We also find defendant’s argument that he was denied a fair trial by the repetition of J.A.’s statements by three witnesses to be unavailing. Dannenberger, St. Arnold and Pate testified pursuant to section 115— 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10), which permits testimony of out-of-court statements by victims of sexual offenses who are under 13 years of age. As the court explained in People v. Branch (1987), 158 Ill. App. 3d 338, 340-41, 511 N.E.2d 872, 873-74:

“The legislature by enacting section 115—10 obviously determined that a corroborative complaint is sufficiently reliable to enjoy an exemption from the rule against hearsay evidence. [Citation.] A second or third complaint is no less reliable or credible. True, there is opportunity for exaggeration or embellishment the longer the time between the incident and each successive complaint. This factor is remedied though through cross-examination (and possible impeachment of the victim from prior inconsistent statements). [Citations.] Once the victim testifies and is subject to cross-examination, the rationale for the rule against hearsay virtually disappears. [Citations.]
Youthful victims often suffer an inability to articulate on the witness stand or lack credibility in general. Their complaints obviously become more credible, reliable and understandable when supported by corroborative complaint testimony from adults. Those who are close to the victim or who have interviewed the victim and investigated the alleged incidents should not be curtailed from testifying and aiding the victim merely because of their numbers or order of talking with the victim.”

Assuming, for the purpose of resolving this issue, that the testimony of Dannenberger, St. Arnold and Pate was admissible under section 115 —10 or some other exception to the hearsay rule, we generally agree with the Branch court and find its analysis dispositive of defendant’s argument in this case. However, we caution that in some future case where the evidence is more closely balanced we would not hesitate to grant a defendant a new trial if it appears that the delicate scales of justice have been unfairly tilted by the sheer weight of repetition. We trust in the sound discretion of the trial courts to maintain the proper balance by limiting evidence which is unnecessarily cumulative.

Defendant next maintains that the court erred in admitting the testimony of Dannenberger, St. Arnold and Pate regarding J.A.’s statements under section 115—10 because: (1) J.A.’s complaint of sexual abuse was not promptly made and was therefore unreliable; (2) the statements J.A. made to St. Arnold and Pate were not “complaints”; and (3) the statements by J.A. concerning uncharged misconduct did not come within the statutory exception.

Section 115—10 provides in relevant part:

“§115—10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such an act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.

Defendant argues that because J.A. did not complain of sexual abuse until a month after he left the Andersons’ home and because he had denied any sexual abuse when interviewed by Dannenberger more than 20 times over the course of a year, his statements were unreliable. Section 115—10 does not codify the common law prompt complaint rule, and any evidence of delay in making the complaint affects the weight rather than the admissibility of the evidence. (People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125; People v. Bailey (1988), 177 Ill. App. 3d 679, 532 N.E.2d 587; People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376.) Here the trial court conducted the hearing required by section 115—10(b)(1) and found that the time, content and circumstances of J.A.’s statements provided sufficient safeguards of reliability. We find no error.

Defendant also contends that J.A.’s statements to St. Arnold and Pate were not “complaints” within the meaning of section 115—10 but were simply repetitions of the statements made to Dannenberger in response to the questions of the interviewers. However, the fact that the victim’s complaint was made in response to questions does not render it inadmissible under section 115—10. (People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366; Kelly, 185 Ill. App. 3d 43, 540 N.E.2d 1125; Branch, 158 Ill. App. 3d 338, 511 N.E.2d 872; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019.) This section “is applicable only when the declarant is a child, and the focus is on the fact a child would be unlikely to fabricate rather than that the declarant would be likely to be truthful only if the information is volunteered.” (Morton, 188 Ill. App. 3d at 104, 543 N.E.2d at 1372.) The testimony of St. Arnold and Pate concerning J.A.’s statements was admissible notwithstanding that those statements were the result of questioning.

The defendant’s last contention with regard to section 115—10 is that any testimony by Dannenberger, St. Arnold and Pate concerning J.A.’s account of uncharged sexual conduct by defendant was not within the statutory hearsay exception. Defendant focuses on the language contained in section 115—10 (a)(2), which permits testimony of hearsay statements made by the child “describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(a)(2).) Defendant argues that the emphasized language indicates that only statements which relate to the charged offense are admissible hearsay evidence under the statute. Therefore, statements regarding other acts, which are not the subject of a prosecution, are inadmissible under the general rule excluding hearsay statements. Defendant notes that each of the three witnesses related J.A.’s claims of sexual abuse occurring over a two-year period, rather than simply recounting the single incident in April of 1990 which was charged. Defendant thus maintains that any statements of uncharged misconduct should have been excluded as hearsay which did not fall within the exception carved out by section 115—10. We find this argument persuasive.

The testimony of Dannenberger, St. Arnold and Pate was clearly hearsay since it consisted of J.A.’s out-of-court statements and was used to show the truth of the matters asserted therein (see People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738). While section 115— 10 creates an exception to the hearsay rule, it does not abrogate the rule nor remove its effect other than in the area of the exception. The plain language of the statute limits the exception to complaints of, or details about, sexual acts which are the subject of a prosecution. While we believe that section 115—10 is broad enough to encompass some matters other than the sexual acts upon which the charge is based (see People v. Rushing (1989), 192 Ill. App. 3d 444, 548 N.E.2d 788 (hearsay testimony that defendant threatened to kill victim’s family if she told of sexual assault was admissible where it was spoken contemporaneously with the sexual acts)), to hold that testimony of uncharged misconduct spanning a two-year period falls within the statutory exception would distort the language of the statute beyond recognition. We hold, therefore, that such testimony should not have been admitted. However, the admission of impermissible details may be deemed harmless error when it is substantially corroborated by the testimony of the complainant or by other competent evidence and the complainant is present in court and available for cross-examination. (People v. Laremont (1988), 174 Ill. App. 3d 201, 528 N.E.2d 249; Branch, 158 Ill. App. 3d 338, 511 N.E.2d 872; Server, 148 Ill. App. 3d 888, 499 N.E.2d 1019.) In this case J.A.’s testimony with regard to uncharged acts of sexual misconduct and the ongoing nature of the sexual abuse paralleled that related by Dannenberger, St. Arnold and Pate. While the repetition of this evidence may have had some prejudicial effect, we do not believe it affected the outcome of defendant’s trial given the substantial evidence of guilt. (See People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612 (a conviction will not be reversed where it does not appear that justice has been denied or that a finding of guilt resulted from an error).) This evidence included not only J.A.’s detailed testimony, but also the highly inculpatory admissions purportedly made by defendant in the presence of two witnesses. After considering the entire record, we find that the admission of the improper hearsay testimony was harmless error.

SENTENCING

Defendant’s final contention is that his sentence of 15 years of imprisonment was excessive and arbitrary. Defendant points to his age, poor health and the fact that his children have been removed from his home as factors to indicate it is unlikely that he would pose any threat in the future. Defendant points out that he has no history of prior criminal activity and has led a law-abiding life. Defendant complains that the trial court failed to refer to these mitigating circumstances prior to imposing sentence and also notes that the court did not explicitly mention any statutory aggravating factors.

The trial court is charged with the task of fashioning a sentence which strikes the appropriate balance between protection of society and rehabilitation of defendant (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541) and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The court is not obligated to recite and assign value to each fact presented at a sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9; People v. Goodman (1983), 116 Ill. App. 3d 125, 451 N.E.2d 607.) It is presumed that the court considered any mitigating evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, aff'd (1986), 115 Ill. 2d 184, 503 N.E.2d 331.) Prior to sentencing the defendant, the trial court made reference to the impact of the offense on the victim, deterrence, defendant’s potential for rehabilitation and defendant’s “exemplary record in public service.” It is clear from the court’s comments that it weighed and considered both the mitigating and aggravating factors, and we will not substitute our judgment for that of the trial court. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

Defendant also contends that the trial court erred in determining his sentence based on the sentencing decision in a prior unrelated case in which another defendant pleaded guilty. Our review of the record does not support defendant’s position. After first noting the defendant’s right to maintain his innocence even after conviction, the court went on to explain that it could consider in some situations the fact that a defendant had pleaded guilty and shown remorse. The court referred to a prior case in which the defendant pleaded guilty and the victim and family members testified in defendant’s behalf and where that defendant received a 15-year sentence. After discussing the impact of the present defendant’s crime on the victim and the negative impact that the defendant’s failure to admit to a problem might have on the success of counseling, the court stated that it was considering the defendant’s exemplary record in public service as a mitigating factor. The court then stated:

“[M]aybe that offsets the mitigation that I show that [the defendant in the prior case] pleaded guilty. That is the closest I can come in an effort to be even handed in these matters.”

Although a defendant may not be punished for exercising his constitutional right to trial (People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688; People v. Byrd (1986), 139 Ill. App. 3d 859, 487 N.E.2d 1275), a sentencing court may grant concessions or show leniency to a defendant who assumes responsibility for his conduct by pleading guilty (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. Sanchez (1989), 189 Ill. App. 3d 1011, 546 N.E.2d 268). In addition, a court may consider the defendant’s lack of remorse or denial of guilt as it affects his prospects for rehabilitation. Ward, 113 Ill. 2d 516, 499 N.E.2d 422; People v. Avila (1989), 180 Ill. App. 3d 345, 535 N.E.2d 1027.

It appears from the court’s comments that it considered the defendant’s participation in the Elk’s club and community service projects to be a mitigating factor equivalent to the remorse shown by the defendant in the prior case. In other words, the trial court viewed the defendant’s service to the community as warranting the same leniency shown to a defendant in an unrelated but similar case. While sentencing is an individualized proceeding which should be based on the particular circumstances of each case, a trial judge is not required to ignore his experience and create a tabula rasa before each sentencing determination is made. We find nothing improper in the court’s earnest “effort to be even handed.”

For the reasons stated above, the judgment and sentence of the circuit court are affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE GORMAN

text:
    CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Plaintiff-Appellant, v. CRYSTAL LAKE INDUSTRIAL PARK, INC., Defendant-Appellee (Kemper, Fisher, Faust, Lawrence and Company et al., Defendants).
    Third District
    No. 3 — 91—0261
    Opinion filed February 11, 1992.
    —Rehearing denied March 25, 1992.

      Janet L. Jannusch and Linda L. Laugges, both of Keck, Mahin & Cate, of Peoria (Robert M. Riffle, of counsel), for appellant.
    Rudolph J. Westphal, of Peoria, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff Chicago and Illinois Midland Railway to condemn approximately 42 acres of land. Following a jury trial, the defendant Crystal Lake Industrial Park, Inc., et al., was awarded $700,000 as just compensation for the taking of its property. Plaintiff appeals. We reverse and remand.

On May 10, 1990, plaintiff filed an amended complaint to acquire 41.625 acres on the Illinois River so that it could build an industrial harbor railroad port. The property includes a channel that accommodates barges of normal size, a lagoon, an area of some sand and gravel, adjacent railroad sidings, access to a State highway, and utilities.

Plaintiff hired two experts to appraise the property. They prepared written appraisal reports on the property approximately 10 months before trial. Of the three approaches to real estate appraisal, i.e., cost approach, income approach, and comparable sales approach, the appraisers chose the comparable sales approach on which to base their opinions of value. One found five and the other six comparable sales.

Defendant hired one expert appraiser, Robert McQuellon. Defendant disclosed the identity of its appraiser approximately one month before the March 18, 1991, trial. Plaintiff acquiesced in this late disclosure. Plaintiff scheduled a deposition with McQuellon, but this was rescheduled a number of times because he had not completed his appraisal. On March 8, 1991, plaintiff deposed McQuellon. McQuellon did not bring his written report as he was asked to do, but instead brought his handwritten notes. When deposed, McQuellon testified that he was still in the process of working on his appraisal. He promised to deliver a typewritten copy of the appraisal to plaintiff, which he did not do. He stated that he had decided to use the income approach to value the parcel and would not have taken the assignment if he could not have used this approach. He asserted that to use the comparable sales approach, one would need at least three good comparable sales and he believed he could not find any good comparable sales with the exception perhaps of one sale. McQuellon went on to say that he based his appraisal on a 1985 letter of intent to lease between defendant’s predecessor and another company. McQuellon stated that he had no independent knowledge of the litigation involving the letter of intent and no independent knowledge whether the amounts allegedly due under the letter of intent were collectible. Furthermore, he stated that he was aware of the gravel content but that he did not incorporate this into his appraisal because he had no way of calculating the amount of material present. He stated that to value the gravel content from an appraiser’s standpoint, one would have to have gotten an engineer to calculate exactly how much was there and then determine the cost to remove it and to sell it. Moreover, he stated that an appraiser would also have to have had a feasibility study performed.

Plaintiff and defendant both filed several motions in limine. Defendant moved to exclude evidence of the specific costs of demolishing buildings on the property and the specific cost estimates of work to remedy erosion problems required by the Corps of Engineers (Corps) and any reference to the suit filed by the Corps in regard to those problems. The court granted this motion.

Plaintiff moved to exclude McQuellon’s entire direct testimony because his opinion of value was based on a speculative income stream. The court denied the motion to exclude the testimony in toto but did exclude the testimony which was based on the income approach. Plaintiff also moved to exclude all of the owner’s, Merlin Gunderson’s, testimony because Gunderson based his opinion on a speculative income stream. As to the sand and gravel contents, he based his opinion of value on personal observation and on conversations with people in the gravel business. The court denied this motion.

Trial began on Monday, March 18, 1991. On Wednesday, March 20, in response to McQuellon’s written appraisal, which was completed Tuesday, March 19, and given to plaintiff on Wednesday, March 20, and which revealed that McQuellon had used a comparable sales approach and a cost approach in appraising the property and had factored in an adjustment for sand and gravel, plaintiff filed a motion in limine to bar the expert under Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)) from testifying to value based on these two approaches. Plaintiff also filed a motion in limine to exclude any of McQuellon’s testimony as to value based on sand and gravel content under Supreme Court Rule 220(d). The court granted plaintiff’s motion to exclude testimony as to value based on the cost approach and denied the motions to exclude valuation testimony based on the comparable sales approach and the sand and gravel content. The court also allowed plaintiff to redepose McQuellon on Thursday, March 21, 1991.

McQuellon stated that on Monday, March 18, the defendant’s attorney had discussed with him that the income approach would not be admissible. McQuellon then had suggested to the attorney that he could incorporate the other approaches to value. McQuellon stated that he finished his appraisal late on Tuesday, March 19, 1991. He also stated that between the first deposition and the present day, defendant’s attorney had apprised him of a letter from an engineering firm in which the firm estimated there to be 4½ million tons of sand and gravel on the property. Based on this estimate and based on a conversation with a friend who owned a sand and gravel pit, he adjusted the value of the property upward 10%. He stated that he had recently found three comparable sales on which to base his opinion of value.

On Thursday, March 21, and Friday, March 22, plaintiff’s and defendant’s appraisers testified, as did Merlin Gunderson. Plaintiff’s first appraiser testified that the property had a fair market value of $150,000. He arrived at this figure by considering five comparable sales transactions, the cost of demolishing the buildings on the property, and the cost of remedying some channel erosion problems. Plaintiff’s second appraiser testified that the property had a fair market value of $129,000. He based this opinion on six comparable sales, the sand and gravel content, and the cost of remedying the channel erosion problems.

Gunderson was allowed to testify in his capacity as owner as to the value of the property. He stated that he was a certified public accountant and had been involved in business for 20 years. He stated that he was generally familiar with area real estate. He opined that the parcel had a value of $1.25 million based on his knowledge of the premises, adjacent properties, and his knowledge of the sand and gravel on the property. He stated that he had observed a vein of sand and gravel about 60 feet deep and that he saw about 20 acres of sand and gravel on the surface. He stated over objection that he estimated the amount to be 4½ million tons.

On Friday, March 22, McQuellon testified that the fair market value of the property was $1.25 million. He based this figure on three comparable sales, personal observation of the sand and gravel, and on the letter estimate from the engineering firm that the property contained about 4½ million tons of sand and gravel. On cross-examination, McQuellon testified that he had used all three approaches in arriving at his valuation figure. Plaintiff then moved to strike his entire testimony based on the court’s ruling that evidence based on cost and income approaches was inadmissible. The court did not strike the entire testimony, but did strike that portion of the testimony concerning the cost and income approaches and the figure based on them. Defendant’s attorney was allowed to clarify the expert’s testimony. McQuellon then testified that his opinion based on the three comparable sales, inspection of the property, and the sand and gravel was $1.04 million. On further cross-examination, McQuellon testified that he had mistakenly doubled the sales price of two of his three comparables. He also declared that this did not affect his ultimate opinion of the value of this property.

The evidence was then concluded. The jury returned a verdict finding $700,000 to be just compensation. Plaintiff appeals, raising several issues for review.

First, plaintiff contends that the trial court erred in denying its motion to exclude McQuellon’s testimony in toto and allowing him to give an opinion as to value based on the comparable sales approach and sand and gravel content because these rulings resulted in a violation of Supreme Court Rule 220(d).

Supreme Court Rule 220 governs the testimony of expert witnesses. Section (d) specifically provides the following:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, deposition or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

The decision whether evidence in a condemnation case should be admitted rests in the discretion of the trial court, and the trial court’s ruling should not be reversed unless it has clearly abused its discretion. (City of Chicago v. Blanton (1958), 15 Ill. 2d 198, 154 N.E.2d 242.) It is necessary to point out that the conduct of the parties placed an able trial judge in a difficult and unnecessary position by their unwillingness to abide by the clear direction of Rule 220. The abuses discussed in this opinion as they relate to expert testimony are relics of another age. Rule 220 is not advisory and it must be followed. (Accord Wehmeier v. UNR Industries, Inc. (1991), 213 Ill. App. 3d 6, 572 N.E.2d 320.) To allow either side to ignore the time constraints imposed by the rule and to require a judge to make rulings on discovery matters during trial on matters clearly subject to the rule defeats its purpose and encourages tactical gamesmanship.

The trial court abused its discretion in admitting McQuellon’s testimony because Supreme Court Rule 220(d) barred this testimony. This court addressed the application of Rule 220(d) in Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770. We held that a violation of section (d) did occur in that personal injury and wrongful death case. There, plaintiff’s expert, a pathologist, had testified in his deposition that he could not opine whether decedent, who had been the victim of an explosion, had felt any conscious pain and suffering before he died. The trial court allowed the expert to testify at trial that the victim may have suffered such pain. On appeal, this admission was held to have been improper as a violation of Rule 220(d).

In Bart, the expert vacillated on critical testimony. The violation that occurred here was more egregious than that in Bart because the expert here completely changed the data underlying his appraisal several days into trial. The rules of evidence should be interpreted and applied to secure fairness in administration and to prevent unfair prejudice. As the Committee Comments point out, “[t]he purpose of the rule is to permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries.” (134 Ill. 2d R. 220, Committee Comments at 182.) The instant case was a condemnation proceeding, the outcome of which hinged on the testimony of the valuation witnesses. When deposed on March 8, prior to trial, McQuellon stated that he had used only the income approach to valuation. Further, he stated that he had not considered sand and gravel content in his appraisal. On March 22, at trial, McQuellon testified that he had used three comparable sales and had factored in the sand and gravel content to arrive at his appraisal. The March 21 deposition of McQuellon did not cure the prejudice to plaintiff, who had no opportunity to review and investigate McQuellon’s new appraisal and prepare accordingly.

The second issue in this case is whether the trial court erred in denying plaintiff's motion to strike all of McQuellon’s direct testimony since it was based on evidence previously excluded through plaintiff’s motions in limine.

The court should have stricken this testimony in its entirety. A motion in limine is a pretrial motion which seeks an order excluding certain evidence. The advantage of a motion in limine is that it lets a party get an order excluding inadmissible evidence without having to object to the evidence and thereby emphasize it in front of the jury. (Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 359 N.E.2d 752.) Further, “[t]he making of a motion in limine *** is an implicit statement that the movant believes he will suffer prejudice if he has to object to the evidence before the jury.” (Roehrig, 45 Ill. App. 3d at 197, 359 N.E.2d at 760.) The prejudice is not necessarily cured by a later admonition to the jury.

In Department of Public Works & Buildings v. Sun Oil Co. (1978), 66 Ill. App. 3d 64, 383 N.E.2d 634, a party to a condemnation proceeding was granted its motion in limine to exclude evidence of the parties’ prior negotiations as to the value of the subject property. The opponent’s attorney violated the ruling when he held aloft a letter (which was an offer of negotiation) and asked the property owner if he had previously put specified values on the property. The trial court ordered the testimony stricken and admonished the jury to disregard it. On appeal, the appellate court agreed that prejudice resulted from the introduction of the improper evidence which could not be cured by the admonition to the jury.

Here, McQuellon testified that the parcel was worth $1.25 million based on a combination of all three valuation approaches. The jury was admonished to disregard that figure. As in Sun Oil, this testimony was central to the issue to be decided by the jury. Given that the jury’s function here was to find a number value for the subject property, the introduction of impermissible figures was so prejudicial that the admonition was not sufficient.

The third issue is whether the trial court erred in allowing Merlin Gunderson and Robert McQuellon to testify about the sand and gravel content of the property as an element of market value.

Gunderson’s testimony was improperly admitted here. The general rule is that a landowner familiar with the facts which give the property value may testify to its value. (Department of Transportation v. Harper (1978), 64 Ill. App. 3d 732, 381 N.E.2d 843.) Thus, in Department of Transportation ex rel. People v. Central Stone Co. (1990), 200 Ill. App. 3d 841, 558 N.E.2d 742, the owner of a limestone quarry being taken in an eminent domain proceeding was allowed to give his opinion as to the value of his land. The appellate court upheld the admission of his testimony. It reasoned that the witness was giving lay opinion testimony in his capacity as an owner. However, in that case, the owner held a degree in mining engineering from the Massachusetts Institute of Technology

Here, Gunderson testified that he was the owner of the property, president of defendant corporation, and a certified public accountant. He testified he believed the property was worth $1.25 million based on his knowledge of the premises, adjacent property, and the sand and gravel content. He also testified that he saw the vein of sand and gravel, that it was approximately 60 feet deep, and that there were approximately 20 acres of sand and gravel on the surface. He asserted that, as a result of computations as to depth and area, the amount of reserve was 4.5 million tons.

Defendant did not present evidence to show that Gunderson was sufficiently familiar with the facts regarding the sand and gravel content or had competence to testify about such matters. This case is distinguishable from Stone because there the owner, a man with a mining engineering degree, merely testified that he believed his appraiser’s valuation was reasonable. Here, Gunderson, a certified public accountant, testified that based on his observations of the land, he calculated that the quantity of subsurface sand and gravel was 4.5 million tons.

McQuellon’s testimony regarding sand and gravel content was also improperly admitted. McQuellon’s testimony was governed by Rule 703 of the Federal Rules of Evidence dealing with expert testimony. (See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) Rule 703 permits an expert to state the facts on which he has relied in arriving at an opinion, but those facts must be of a type reasonably relied on by experts in forming opinions on the subject in question. Here, McQuellon relied on a letter from an engineering firm that contained an estimate of the property’s sand and gravel content. In his March 8 deposition, McQuellon admitted that a prudent appraiser would have requested that a separate feasibility study be performed before factoring the sand and gravel into an appraisal. The letter estimate alone thus was not the type of fact an appraiser would reasonably rely on to factor in the sand and gravel content.

The fourth issue is whether the trial court abused its discretion in granting defendant’s motions in limine to exclude plaintiff’s expert testimony on the channel remediation data and on the costs of demolishing the existing structures.

As to valuation, section 7—121 of the Code of Civil Procedure provides that “fair cash market value” is defined as follows:

“[T]he fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which amount of money shall be determined and ascertained as of the date of filing the complaint to condemn.” Ill. Rev. Stat. 1989, ch. 110, par. 7-121.

The trial court properly excluded the channel remediation data and the demolishing costs. The market value concept excludes any special value to the owner for his particular purpose or any special value to the condemnor for its special use. (City of Chicago v. Harrison-Halsted, Building Corp. (1957), 11 Ill. 2d 431.) The trial court determined to restrict valuation testimony to the property in an “as is” condition. It properly excluded specific and speculative costs of remedying the channel erosion problems and the specific, speculative costs of demolishing the existing structures.

For all of the foregoing reasons, we reverse the judgment of the circuit court of Tazewell County and remand the cause for a new trial.

Reversed and remanded.

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