source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. M.D., Defendant-Appellant.
    Second District
    No. 2—90—0878
    Opinion filed June 30, 1992.

      G. Joseph Weller, Beth Katz, and Ingrid L. Moller, all of State Appellate Defender’s Office, of Elgin, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, M.D., was convicted of committing aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14) by placing his fist into the vagina of his wife, L.D. We refer to defendant and the victim by their initials in order to protect the victim’s identity. Defendant was sentenced to a 12-year term of imprisonment. On appeal, defendant contends as follows: (1) that the statutory sex offense scheme is unconstitutional because a marital exemption exists for certain sex offenses but not for others; (2) that the trial court erred by refusing to allow evidence concerning certain alleged past sexual practices of defendant and L.D.; (3) that the prosecuting attorney impermissibly laid a foundation to impeach defendant during cross-examination but failed to do so; and (4) the prosecuting attorney asked various improper questions and made improper comments during the trial. We affirm.

Defendant and L.D. were married in August 1978 and had two children. At trial, L.D. testified as follows. Defendant arrived home at 5:30 p.m. on January 10, 1990. He had to leave shortly thereafter to call on a client. Defendant asked if L.D. would be awake later on so they could have sex. They argued for awhile, and defendant then left to meet the client.

Defendant returned home after midnight. L.D. was in bed at the time. Defendant went into the bedroom and asked if L.D. had something for him. After L.D. failed to respond defendant went downstairs. About 20 minutes later, defendant went back to the bedroom, removed his clothes, and lay down next to L.D. He accused L.D. of having an affair with a man who belonged to her church group. Defendant then jumped out of the bed and said that he was not going to wait any longer. He punched L.D. in the back four times, jumped back onto the bed, and began choking her.

L.D. tried to get away, but was unable to do so. Defendant took her pants off, held her down with his forearm, and started to pry her legs apart. He inserted his penis into L.D.’s vagina and asked her to talk dirty. After about 10 minutes, L.D. was able to push defendant away. She went into the bathroom and then went downstairs to the living room. Defendant followed her.

At about 3 a.m., L.D., who normally left for work at 5:30 a.m., phoned her employer and stated that she would not be in that morning. She then returned to the living room and sat down. Defendant sat next to her. He asked how often L.D. felt they should have sex. When she responded by saying once a week, he became enraged because he felt they should have sex four times a week. Defendant pulled L.D. off the chair by her legs, dragged her across the living room floor, and forced her to go upstairs. He told L.D. that she had better do it right this time.

After L.D. got into bed, defendant grabbed a bedpost, banged it against the end of the bed a few times, and threatened to kill her. He got into bed and told L.D. to perform oral sex on him. Defendant then pried her legs apart and inserted his penis into her vagina. After about 15 minutes, defendant withdrew his penis. He went downstairs while L.D. remained in bed. L.D. looked at a clock and noticed that it was about five o’clock in the morning.

Defendant returned to the bedroom shortly thereafter and sat on the end of the bed. He grabbed L.D.’s legs, and she felt something cold. Defendant then placed his weight on top of her and jammed his fist into her vagina. According to L.D., all of defendant’s hand entered her vagina up to his wrist. L.D. screamed and tried to get away. Defendant removed his fist, continued to hold L.D. down, and then jammed the fist into her vagina again.

Defendant then pulled L.D. off the bed, took her into the bathroom, and forced her to go into the shower with him. Defendant began masturbating and told her to perform oral sex on him. He left the shower after L.D. told him to get away from her. L.D. then put a sanitary napkin inside her panties because she was bleeding heavily. After L.D. left the bathroom, defendant went inside it. L.D. took this opportunity to run downstairs to call the police. She reached the operator and asked to be connected to the police. Defendant went downstairs, however, and took the phone away. L.D. and defendant then returned upstairs.

The operator sent the police to L.D.’s home, where they arrived a few minutes later. When L.D. saw flashing lights outside, she turned on the interior lights of the house. Defendant flipped the lights off, placed his hands over L.D.’s mouth, and pushed her into the bedroom. L.D. then ran downstairs to open the door. She told the three officers that defendant had jammed his fist into her private area. L.D. took one officer upstairs and showed her the bloodstain on the mattress. L.D. noticed that the bed sheets had been removed. The sheets were downstairs in the washing machine.

The police arrested defendant. L.D. went to the emergency room of a Rockford hospital. A doctor performed surgery on her and placed sutures inside her vagina. L.D. was released from the hospital on the afternoon of January 11. Because of defendant’s actions on January 11, L.D. will suffer from urinary incontinence for the rest of her life and will need to take medication daily to prevent her from urinating uncontrollably.

L.D. further testified that defendant sent her 13 letters after his arrest. Three of those letters were introduced into evidence. In one, postmarked January 26, 1990, defendant stated, “I have done a terrible wrong to you and I just feel so sick inside because of it.” In another, postmarked January 31, 1990, he stated, “My heart is so full of pitint [sic] grief. I wish I could go back to that terrible night.” In the third letter, which was postmarked February 22, 1990, defendant said, “The worst day of my life was Jan. 11, 1990.” He also said, “I love you very much *** and wish I never hurt you.” In each of the above letters defendant asked L.D. to attempt to get the charges dropped so he would not be faced with a long prison sentence.

The three Rockford police officers who went to the home of defendant and L.D. on the morning of January 11, 1990, basically agreed with L.D.’s version of what happened upon their arrival. Each testified that they saw a light in the house go on and then off after they arrived. L.D. opened the front door for them. She was hysterical at the time, and she told the officers that defendant had jammed his fist into her private area. Defendant first told the officers that there was no problem and then said that L.D. had caused the trouble.

Two of the officers went upstairs. They saw a bloodstain on the mattress and saw eggshell fragments on the mattress, the bedroom floor, and in the hallway. L.D. told one of them that defendant had jammed his fist and an egg into her vagina. The officers went downstairs and saw the bed sheets in the washing machine. Defendant was placed under arrest and taken to the police station.

Detective Anthony Piccirilli of the Rockford police department interviewed defendant in a holding room at the Rockford police station at about 8:45 a.m. on January 11, 1990. Detective William Doner was also present. Piccirilli and Doner testified that defendant signed a form which stated that he agreed to waive his Miranda rights and talk to the detectives. The form also explained to defendant what his rights were. Piccirilli then questioned defendant, who gave a verbal statement concerning what had happened. As defendant did this, Piccirilli typed a written statement.

According to Piccirilli and Doner, when the two-page written statement was completed, they asked him to read it out loud. Defendant did so. They also asked him if there were any corrections which should be made. The only corrections were a few minor typographical errors. Defendant initialled each of these corrections, wrote his initials at the end of each paragraph, and signed the bottom of both pages of the statement. He initialled the statement in 14 separate places.

The written statement contains the following version of the events of January 10 to 11, 1990. Defendant was home with L.D. at about 4:30 in the afternoon on January 10. He had a business appointment that evening. Defendant told L.D. that he would be home from the appointment at about 10:30 p.m., and asked if she would be up. L.D. knew this meant that defendant wished to have sex with her after he came home from the appointment. L.D. said she would be tired.

Defendant returned home from the meeting at about 11:30 p.m. He went upstairs and said in a rude manner, “you better now.” L.D. did not respond. Defendant then went downstairs and had something to eat. He returned upstairs about 20 minutes later and asked L.D. about a church activity. He also asked if L.D. was “feeling frisky.” L.D. became angry and stated that was all defendant could think about. Defendant started to remove L.D.’s shirt, but L.D. said she would take it off. L.D. and defendant then took off all their clothes.

At this point, L.D. told defendant to lie down if he wanted it rough. Defendant tried to touch her, and L.D. tried to avoid him. L.D. twice grabbed defendant’s testicles and squeezed them. After the first time, defendant told her that it hurt. After the second time, he grabbed her by the neck, and she relented. Defendant and L.D. then engaged in sexual intercourse for about 20 minutes. Defendant then went into the bathroom.

When defendant returned to the bedroom, he was angry and screamed at L.D. about the way she had treated him. L.D. then punched him. Defendant grabbed L.D.’s hair and told her to stop because things were getting out of control. Defendant then went downstairs for a few minutes.

After defendant returned upstairs, he and L.D. engaged in sexual intercourse again. Defendant was upset, however, because L.D. seemed disinterested. After they stopped, defendant went downstairs where he stayed for 20 minutes. While he was downstairs, defendant decided to get an egg from the refrigerator, take it upstairs, and place it in L.D.’s vagina. He brought an egg into the bedroom and put the egg along with his fist into L.D.’s vagina. L.D. started screaming. Defendant then made her get into the shower with him. L.D. was bleeding. Defendant said to her, “now, how’s that feel?” L.D. ran downstairs and called the police, who arrived about 20 minutes later.

Defendant’s trial testimony was generally consistent with the above written statement with the following exceptions. He and L.D. did not engage in sexual intercourse twice during the early morning hours of January 11; instead, they had sexual intercourse once, and he later performed oral sex on her. Defendant felt that L.D. was cold and “standoffish” while they had sex. After he performed oral sex on her, defendant decided to stimulate her by using an egg. He had seen this done in pornographic films.

Defendant got an egg from the refrigerator and brought it up to the bedroom. He tried to stimulate L.D. by placing fingers from one hand into her vagina. He was holding the egg in the same hand. While he was doing this, L.D. grabbed his testicles. As a result, his entire hand accidentally went into her vagina, and the egg broke outside her vagina. L.D. screamed. Defendant saw a lot of blood and was scared. Defendant suggested that they go to a hospital. He then took L.D. into the shower. L.D. told defendant not to touch her, and he did not. When L.D. left the shower, she went downstairs and called the police, who arrived shortly thereafter.

Defendant testified that he did not read the written statement bearing his signature and was never told by Detectives Piccirilli or Doner to read the statement out loud. Instead, the detectives merely instructed defendant to sign or initial the statement in certain places, and he did so. He acknowledged signing the statement and writing the initials “M.D.” on it at each place where those initials were on the statement.

Defendant denied telling the detectives that he put his fist and the egg into L.D.’s vagina. Defendant also denied telling the detectives that he said “now how’s that feel” to L.D. while she was in the shower after the alleged incident. He admitted, however, that L.D. did not consent to having the egg placed in her vagina.

Mary Buzzell, an emergency room nurse at SwedishAmerican Hospital, spoke to L.D. and examined her when she arrived at the hospital’s emergency room on January 11, 1990. According to Buzzell, L.D. stated that her husband had forcibly assaulted her and he had tried to strangle her. L.D. also stated that she had suffered injuries to her vagina because her husband had inserted his fist and an egg into it. Buzzell saw bruises on L.D.’s neck, bruises on her upper arms, a bite mark on her abdomen, and injuries to her vaginal area. She attempted to insert a catheter into L.D.’s vagina but was unable to do so because of the injuries to L.D.’s vaginal area. Buzzell testified that L.D.’s blood pressure was very low upon her arrival at the hospital and L.D. could have been in a life-threatening situation because of the amount of blood she had lost had she not been treated.

Dr. Robert Eichmann, who treated L.D. at the SwedishAmerican Hospital emergency room on January 11, 1990, testified that he attempted to examine her vagina but was not able to do so because of the tenderness and swelling in the area. Dr. Eichmann noticed a fair amount of bleeding. He decided to perform surgery in order to determine the extent of L.D.’s injuries. Dr. Eichmann found lacerations inside L.D.’s vagina and sutured them. He did not find any eggshell fragments inside her vagina, although he found one in her anus. In Dr. Eichmann’s opinion, the injuries suffered by L.D. could have been caused by a number of things, including having a fist placed in her vagina, or a person’s fingernails.

Defendant had been charged with one count of battery, two counts of criminal sexual assault, and three counts of aggravated criminal sexual assault. The jury acquitted him of both counts of criminal sexual assault. These counts involved the two alleged incidents of forcible intercourse. It also acquitted defendant of the aggravated criminal sexual assault count which alleged that defendant had placed his fist and an egg into his wife’s vagina and the count which alleged that he had endangered L.D.’s life. The jury found defendant guilty of the aggravated sexual assault count which alleged that he had placed his fist in L.D.’s vagina, and it found him guilty of battery. The trial court sentenced defendant to a 12-year term of imprisonment. Defendant now appeals.

Under section 12 — 18(c) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 18(c)), a person may not be charged by his or her spouse with the offenses of criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 15), or aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16). This exemption does not apply to aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14), the offense of which defendant was convicted, or criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13). Defendant argues that applying the marital exemption only to the former two offenses violates the equal protection and due process clauses of the United States and Illinois Constitutions (U.S. Const., amend XIV; Ill. Const. 1970, art. I, §2).

Illinois courts employ the same analysis in considering equal protection claims under the Federal and State constitutions. (People v. Reed (1992), 148 Ill. 2d 1.) The guarantee of equal protection does not deny the State the power when it enacts legislation to draw lines which result in different treatment for different classes of individuals. (Reed, 148 Ill. 2d at 7.) It does, however, prohibit the State from providing unequal treatment to individuals who are placed into different statutory classifications for reasons entirely unrelated to the purpose of the legislation. (Eisenstadt v. Baird (1972), 405 U.S. 438, 447, 31 L. Ed. 2d 349, 358-59, 92 S. Ct. 1029, 1035; Reed, 148 Ill. 2d at 7.) Statutory classifications must therefore be reasonable rather than arbitrary, and must result from some basis of difference having a fair and substantial relation to the objective of the legislation. Eisenstadt, 405 U.S. at 447, 31 L. Ed. 2d at 358-59, 92 S. Ct. at 1035.

Two standards are applied to review equal protection arguments. Strict scrutiny is applied if the statute contains a suspect classification such as one based on race or if it infringes upon a fundamental right. (Reed, 148 Ill. 2d at 7.) A law will not be upheld under this standard unless it is necessary to promote a compelling State interest and is narrowly tailored to serve that interest. Reed, 148 Ill. 2d at 7.

Defendant concedes that the strict scrutiny standard does not apply here, and the applicable standard is the rational basis test. When this standard is employed a statutory classification will be upheld if it bears a rational relationship to a legitimate statutory objective. {Reed, 148 Ill. 2d at 7-8.) If, as in the case at bar, a party contends that a statute violates his or her substantive due process rights and no fundamental right is implicated, that party must show that the statute is not rationally related to a legitimate governmental interest. (People v. Lindner (1989), 127 Ill. 2d 174, 188.) Thus, the standards for statutory validity under the due process and equal protection clauses are identical in the absence of a suspect classification or the infringement of a fundamental right. Reed, 148 Ill. 2d at 9-10; People v. Adams (1991), 144 Ill. 2d 381, 391.

Although the State does not contest defendant’s standing to raise the above constitutional claim, we will briefly address this issue. Even if a party does not contend that it would be unconstitutional under any circumstances to apply the challenged statutory burden to him or her, that party has standing to raise a claim that the burden violates the equal protection clause when applied to him or her but not others. (People v. Liberta (1984), 64 N.Y.2d 152, 161-62, 474 N.E.2d 567, 571, 485 N.Y.S.2d 207, 211; see also Williams v. State (Ala. Crim. App. 1986), 494 So. 2d 819, 826.) Defendant contends here that it is irrational to prosecute him for committing an act of forcible sexual conduct involving penetration against his spouse when individuals who commit acts of forcible sexual conduct which do not involve penetration against their spouses cannot be prosecuted under the current statutory sex offense scheme. He has standing to raise this claim that the current sex offense scheme violates the equal protection clause because it burdens him but does not burden others who are similarly situated.

Section 12 — 13(a)(1) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13(aXl)) states that a person commits the offense of criminal sexual assault if he or she commits an act of sexual penetration by the use or threat of force. Sexual penetration is defined as any contact between the sex organ of one person and the sex organ, mouth or anus of another person, or the intrusion of any part of a person or animal’s body or any object into the sex organ or anus of another person. Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(f).

Defendant was convicted of violating section 12 — 14(a) of the Code, which states that a person commits the offense of aggravated criminal sexual assault if he or she commits the offense of criminal sexual assault and one or more of the specified aggravating circumstances are present. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(a).) With respect to the charge of which defendant was convicted, the indictment alleged that he placed his fist in L.D.’s vagina by use of force. The alleged aggravating circumstance was that this caused bodily harm to L.D. See Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(a)(2).

Section 12 — 15(a)(1) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 15(a)(1)) states that a person commits the offense of criminal sexual abuse if he or she commits an act of sexual conduct by the use or threat of force. Sexual conduct is defined as the intentional or knowing touching or fondling by either the accused or the victim of the other’s sex organ, anus, breast, or any part of the body of a child under the age of 13 for the purpose of sexual gratification. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(e).) A person is guilty of the offense of aggravated criminal sexual abuse if he or she violates section 12— 15(a) of the Code and one or more specified aggravating circumstances is present. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(a).) One of these aggravating circumstances is causing great bodily harm to the victim. See Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(a).

Under the above statutes, if defendant had committed an act of sexual conduct against L.D. which did not involve sexual penetration, he would have committed the offense of aggravated criminal sexual abuse. Because the marital exemption set forth in section 12 — 18(c) of the Act (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 18(c)) applies to this offense, however, defendant could not have been prosecuted. We note further that each of the above four statutes prohibits acts of sexual conduct or penetration under certain circumstances even if force or threat of force is not involved. Because this case involves allegations of forcible conduct involving penetration, however, we need only consider the constitutionality of the marital exemption as applied to the provisions outlawing forcible sexual assaults.

The purpose of the statutory scheme we are considering is to protect the personal dignity of potential victims of sex offenses. (See People v. Terrell (1989), 132 Ill. 2d 178, 210.) Sexual assaults are generally violent, degrading acts which cause severe physical and emotional damage to the victims. (Coker v. Georgia (1977), 433 U.S. 584, 597-98, 53 L. Ed. 2d 982, 993, 97 S. Ct. 2861, 2868-69; People v. Liberta (1984), 64 N.Y.2d 152, 164, 474 N.E.2d 567, 573, 485 N.Y.S.2d 207, 213.) Perpetrators of sexual assaults exhibit an utter contempt for the personal integrity of their victims and the right of those individuals to decide with whom they will establish intimate relationships. (Coker, 433 U.S. at 597, 53 L. Ed. 2d at 992, 97 S. Ct. at 2868-69.) The four statutes in question are designed to protect individuals from the physical and emotional harm resulting from sexual assaults and to preserve their personal bodily integrity.

Equal protection challenges have been brought in several States to statutes banning forcible sexual assaults and containing marital exemptions similar to the one we are considering. The Colorado Supreme Court held that a marital exemption to the State’s first degree sexual assault statute did not violate the equal protection or due process clauses. (People v. Brown (Colo. 1981), 632 P.2d 1025, 1027.) Other States have held, however, that marital exemptions in similar statutes violated the equal protection clause. (See, e.g., Merton v. State (Ala. Crim. App. 1986), 500 So. 2d 1301, 1302-05 (marital exemption to forcible rape statute unconstitutional); Williams v. State (Ala. Crim. App. 1986), 494 So. 2d 819, 830 (marital exemption to forcible sodomy statute unconstitutional); People v. Liberta (1984), 64 N.Y.2d 152, 167, 474 N.E.2d 567, 575, 485 N.Y.S.2d 207, 215 (marital exemption to rape and sodomy statutes unconstitutional).) The statutes in each of the above cases proscribed conduct that is prohibited in Illinois under the criminal sexual assault or aggravated criminal sexual assault statute.

We recognize that the above out-of-State cases are arguably distinguishable from the one at bar because, as we have seen, there is no marital exemption for aggravated criminal sexual assault or criminal sexual assault, offenses for which the legislature provided greater punishment than criminal sexual abuse or aggravated criminal sexual abuse. Our supreme court has held that the legislature could have rationally concluded that aggravated criminal sexual assault is a more serious crime and a greater affront to the personal dignity of the individual than the offense of aggravated criminal sexual abuse because it involves sexual penetration; therefore, providing more severe punishment for the former offense does not violate due process. (People v. Terrell (1989), 132 Ill. 2d 178, 210.) Thus, it could be argued that the situation is not the same as the ones present in Brown, Merton, Williams, and Liberta because Illinois does not recognize a marital exemption for its most serious sex offenses.

Nevertheless, we believe the above cases are of significant value because they discuss the source of marital exemptions in sexual offense statutes and analyze possible justifications for the continued existence of such exemptions. Although the State has offered no rationales to justify the existence of the marital exemption at issue here, we will examine the justifications which were discussed in the above cases. A marital exemption for the offense of rape existed at common law. (Williams, 494 So. 2d at 827.) The idea of recognizing this exemption originated with Lord Hale, the 17th century jurist, who, without citing any authority, wrote as follows:

“[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” (1 Hale, History of the Pleas of the Crown, at 629 (1800), quoted in Liberta, 64 N.Y.2d at 162, 474 N.E.2d at 572, 485 N.Y.S.2d at 212.)

Other traditional justifications for the marital exemption were the common-law doctrines that a woman was her husband’s property and that her legal existence was consolidated into her husband’s existence. 64 N.Y.2d at 164, 474 N.E.2d at 573, 485 N.Y.S.2d at 213.

The above archaic doctrines simply have no place in modem society, where the notions that a woman should be regarded as her husband’s chattel and deprived of her dignity and recognition as a whole human being through the denial of a separate legal identity have been thoroughly rejected. (64 N.Y.2d at 164, 474 N.E.2d at 573, 485 N.Y.S.2d at 213; see also Trammel v. United States (1980), 445 U.S. 40, 52, 63 L. Ed. 2d 186, 196, 100 S. Ct. 906, 913.) Lord Hale’s implied consent theory appears to be based largely upon the other two doctrines and is equally objectionable as it leads to the same result, depriving women of their dignity by refusing to recognize them as whole human beings who are entitled to decide whether or when they will engage in sexual relations.

The above doctrines were employed to justify the subjugation of women in English and American law and society during the past. Modem American law and society, however, have rejected these doctrines and have begun taking steps to recognize the rights of women, including their right to equal protection under the law. (See, e.g., Frontiero v. Richardson (1973), 411 U.S. 677, 687-88, 36 L. Ed. 2d 583, 592, 93 S. Ct. 1764, 1770-71; Reed v. Reed (1971), 404 U.S. 71, 76-77, 30 L. Ed. 2d 225, 230, 92 S. Ct. 251, 254.) Furthermore, as other courts have pointed out with respect to Lord Hale’s theory, it is irrational to imply consent to a sexual assault, which is generally a violent, degrading act that results in severe physical and psychological harm. (Williams, 494 So. 2d at 828; Liberta, 64 N.Y.2d at 164, 474 N.E.2d at 573, 485 N.Y.S.2d at 213.) A marriage license should not be viewed as a license to forcibly sexually assault one’s spouse with impunity. (64 N.Y.2d at 164, 474 N.E.2d at 573, 485 N.Y.S.2d at 213.) A married individual has the same right to control his or her body as does an unmarried person. (Williams, 494 So. 2d at 828; Liberta, 64 N.Y.2d at 164, 474 N.E.2d at 573, 485 N.Y.S.2d at 213.) For these reasons, we conclude that the above traditional justifications do not provide a rational basis for marital exemptions in sexual assault statutes.

As the court pointed out in Liberta, other justifications have been raised in recent times for marital exemptions in sexual assault statutes, including the arguments that such exemptions protect against governmental intrusion into marital privacy and promote reconciliation between spouses. (64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.) The right to marital privacy was first recognized by the United States Supreme Court in Griswold v. Connecticut (1965), 381 U.S. 479, 485, 14 L. Ed. 2d 510, 515-16, 85 S. Ct. 1678, 1682, in which the Court held that a Connecticut statute banning the use of contraceptives was unconstitutional because of its effect upon the rights of married persons. There is no suggestion in Griswold that the right to marital privacy was meant to apply outside the context of consensual marital relations, and other courts have concluded that it does not. See Cotner v. Henry (7th Cir. 1968), 394 F.2d 873, 875; Williams, 494 So. 2d at 828-29; Liberta, 64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.

We are in complete accord with these holdings. In Griswold, the Court stated that the Connecticut statute at issue sought to achieve its goals “by means having a maximum destructive impact” upon the marital relationship. (Griswold, 381 U.S. at 485, 14 L. Ed. 2d at 515, 85 S. Ct. at 1682.) In our view, a sexual assault perpetrated by one spouse upon the other also has a maximum destructive impact upon the marital relationship. This would make it particularly inappropriate to interpret Griswold, a holding designed to protect the marital relationship, in such a manner as to prevent prosecution of persons who commit forcible sexual assaults against their spouses. As the court stated in Liberta, while protection of marital privacy is a legitimate State interest, there is no rational relationship between this interest and allowing an individual to commit a forcible sexual assault upon his or her spouse. (64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.) We therefore reject the marital privacy rationale as did the courts in Williams and Liberta.

The Colorado Supreme Court held in People v. Brown (Colo. 1981), 632 P.2d 1025, 1027, that the interest in promoting marital reconciliation and preserving family relationships provided a rational basis for the marital exception in that State’s first-degree sexual assault statute. The courts in Williams and Liberta concluded that this rationale was untenable, however (Williams, 494 So. 2d at 829; Liberta, 64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214), and we agree. It is the violent act of committing a forcible sexual assault which disrupts a marriage and not the injured spouse’s attempt to seek redress in the criminal justice system. (Williams, 494 So. 2d at 829; Liberta, 64 N.Y.2d at 167, 474 N.E.2d at 575, 485 N.Y.S.2d at 215.) Additionally, if a marriage has deteriorated to the point where one spouse commits a forcible sexual assault upon the other and the victim desires to see the perpetrator imprisoned, reconciliation is hardly a likely prospect. Williams, 494 So. 2d at 829; Liberta, 64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.

Equally untenable is the contention that forcible sexual assault is not as serious an offense if the victim and perpetrator are married and can therefore be addressed adequately by other statutes, such as the battery and aggravated battery statutes (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 3; Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4). It would seem that a forcible sexual assault committed by a person’s spouse would be even more traumatic than one committed by another individual as the perpetrator would be someone with whom the victim had once shared a loving, intimate relationship. (Williams, 494 So. 2d at 830; see also Liberta, 64 N.Y.2d at 167, 474 N.E.2d at 575, 485 N.Y.S.2d at 215.) As we have previously stated, a married person should have the same right to control his or her body as does an unmarried person. Moreover, the existence of the statutes outlawing criminal sexual abuse, criminal sexual assault, and the aggravated forms of these crimes results from a recognition that the nature of the harm resulting from a forcible sexual assault is different from that resulting from an ordinary assault. (Williams, 494 So. 2d at 829.) For these reasons we do not accept the theory that a sexual assault committed by a person against his or her spouse is a less serious offense than any other sexual assault or that other criminal statutes adequately address the problem of marital sexual assaults.

The final rationales that have been asserted in support of the marital exemption are that a marital sexual assault would be difficult to prove and that a possibility of fabricated complaints from vindictive spouses exists. (Liberta, 64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.) The former argument is based upon the problem of proving lack of consent. (64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.) What this argument fails to take into account is that the problem of proving lack of consent is likely to be present in most cases in which the alleged victim and perpetrator have had a prior consensual sexual relationship regardless of whether they were married or unmarried. (Williams, 494 So. 2d at 829; Liberta, 64 N.Y.2d at 165, 474 N.E.2d at 574, 485 N.Y.S.2d at 214.) With regard to the other contention, we find no basis for believing that a vindictive spouse is more likely to fabricate a sexual assault charge than a vindictive unmarried former lover. (64 N.Y.2d at 166, 474 N.E.2d at 575, 485 N.Y.S.2d at 215.) Accordingly, we conclude that these two rationales do not provide any rational basis for the marital exemption for acts of forcible sexual conduct.

As we have previously noted, the Illinois marital exemption does not apply to all sexual offenses and is arguably inapplicable to the most serious sexual offenses. The State’s primary contention in support of the marital exemption is that the legislature is not required to solve all of the evils associated with a particular problem in one fell swoop; instead, it may tailor a statute to the particular problem that it seeks to solve. (People v. Adams (1991), 144 Ill. 2d 381, 391; Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 371.) In the above two cases, however, our supreme court cited reasons why the legislature may rationally have chosen to address only the evils that it focused upon in the statutes at issue. (See Adams, 144 v. 2d at 392; Chicago National League Ball Club, Inc., 108 Ill. 2d at 371-72.) Here, there is no rational basis for a statutory scheme which protects an individual from acts of forcible sexual penetration committed by a spouse but does not protect the individual from other acts of forcible sexual exploitation by his or her spouse. The marital exemption is completely contrary to the statutory objectives of protecting people from the physical and emotional harm re-suiting from forcible sexual assaults and preserving their personal bodily integrity.

We therefore conclude that the marital exemption set forth in section 12 — 18(c) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 12— 18(c)) violates the equal protection and due process clauses of the United States and Illinois Constitutions when it is applied to section 12 — 15(a)(1) of the Code or to a violation of section 12 — 16 which is predicated upon a violation of section 12 — 15(a)(1). As Justice Oliver Wendell Holmes once wrote:

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” (Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897), quoted in Liberta, 64 N.Y.2d at 167, 474 N.E.2d at 575, 485 N.Y.S.2d at 215.)

We agree with the conclusion of the court in Liberta that the above statement is an apt characterization of the marital exemption in sexual assault statutes. 64 N.Y.2d at 167, 474 N.E.2d at 575, 485 N.Y.S.2d at 215.

Defendant argues that his conviction must be reversed because the statutory scheme under which he was convicted is unconstitutional. We disagree. The fact that a statute contains an unconstitutional provision does not render the entire enactment unconstitutional unless it is determined that the legislature would not have enacted the statute without the invalid portion. (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490; see also People ex rel. Chicago Bar Association v. State Board of Elections (1990), 136 Ill. 2d 513, 534.) The question of whether the remaining portions of an enactment are severable from the unconstitutional portion is thus a question of legislative intent. Springfield Rare Coin Galleries, Inc. v. Johnson (1986), 115 Ill. 2d 221, 237.

As we have previously indicated, the criminal sexual abuse and aggravated criminal sexual abuse statutes serve the important interests of protecting the personal bodily integrity of individuals and protecting them from the emotional and physical harm that results from sexual assaults. In light of the importance of these interests, we have no doubt that the legislature would have enacted sections 12 — 13 through 12 — 16 of the Code without a marital exemption applicable to sections 12 — 15(a), and, under certain circumstances, to section 12— 16(a). Accordingly, we conclude that the invalidity of the marital exemption provided in section 12 — 18(c) when applied to the above provisions does not affect the validity of the criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse or aggravated criminal sexual abuse statutes. We note that other courts which have concluded that marital exemptions to sexual assault statutes are unconstitutional have also determined that the remainder of the provision is valid because the exemption is severable. See, e.g., Merton, 500 So. 2d 1301; Williams, 494 So. 2d at 831; Liberta, 64 N.Y.2d at 172, 474 N.E.2d at 578-79, 485 N.Y.S.2d at 218-19.

Although our decision has the effect of expanding the scope of a criminal statute, this does not deprive defendant of due process of law. Defendant did not come within the marital exemption which we have held to be invalid in part, and he therefore had fair warning at the time of his alleged conduct that it was prohibited under the aggravated criminal sexual assault statute. (64 N.Y.2d at 172, 474 N.E.2d at 579, 485 N.Y.S.2d at 219.) The partial invalidity of section 12— 18(c) does not provide a basis for the reversal of defendant’s conviction.

Defendant next contends that the trial court erred by ruling that certain evidence he wished to introduce regarding past consensual sexual practices with L.D. was inadmissible. More specifically, defendant wished to introduce evidence that he had engaged in consensual sexual acts with L.D. during which he placed cucumbers, whipped cream, and peaches into her vagina in order to stimulate her. The State contends that this evidence was inadmissible under the rape-shield statute (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 7), and that it was not relevant.

Section 115 — 7(a) states as follows:

“In prosecutions for aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 7(a).)

Section 115 — 7(b) states in part as follows:

“No evidence admissible under this Section shall be introduced unless ruled admissible by the trial judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied.” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 7(b).)

The remainder of section 115 — 7(b) states that the offer of proof must contain reasonably specific information as to the date, time, or place of the alleged past sexual activity or the evidence will not be admitted. Ill. Rev. Stat. 1991, ch. 38, par. 115 — 7(b).

According to the State, L.D. admitted to prior sexual conduct with defendant by testifying that he was the father of her two children. The State contends that under section 115 — 7(b) the evidence defendant sought to introduce was inadmissible because the alleged victim admitted to prior sexual activity with him, thus negating any need for impeachment.

The Appellate Court, Third District, rejected the same argument, holding that it was based upon “a misreading of the statute.” (People v. Schuldt (1991), 217 Ill. App. 3d 534, 541.) We agree. The test set forth in section 115 — 7(b) is whether the defense has evidence to impeach the alleged victim in the event he or she denies past sexual acts with the defendant and whether the evidence is reasonably specific as to the date, time, or place of these acts. Nowhere does section 115 — 7 state that such evidence is inadmissible if the alleged victim admits to prior sexual conduct with the defendant. We therefore reject the State’s contention.

Likewise, we reject defendant’s contention that evidence of past sexual conduct between defendant and the alleged victim which is not barred under section 115 — 7 is presumed relevant under the statute. The court in Schuldt held that such evidence “remainfs] subject to standards of relevancy” (Schuldt, 217 Ill. App. 3d at 541), and we agree with this conclusion. Section 115 — 7 refers to “evidence admissible under this Section” (Ill. Rev. Stat. 1991, ch. 38 par. 115 — 7(b)), but this language does not preclude the possibility that evidence admissible under the provision could be deemed inadmissible under the rules of evidence. There is no other language in section 115 — 7 suggesting any presumption of relevancy.

Defendant contends that the trial court’s refusal to admit the proffered evidence denied him an opportunity to develop a defense of consent. The evidence was relevant, according to defendant, because it related to sexual conduct involving food, thus tending to show that L.D. may have consented to having the egg placed in her vagina.

The problem with defendant’s argument is that the explanation he gave at trial for his conduct was that it was an accident, not that L.D. consented. Defendant stated during his testimony that L.D. did not consent to his use of the egg. He also testified that his hand accidentally slipped into her vagina after she squeezed his testicles. Therefore, consent was not an issue at trial; instead, the determinative issue was whether defendant’s conduct was deliberate or accidental. The trial court did not err by ruling that the proffered evidence was inadmissible as it shed no light on the above issue.

Defendant next contends that he should receive a new trial because the prosecuting attorney insinuated while cross-examining him that defendant had been fired from three jobs and failed to present evidence impeaching defendant when he denied this. Defendant acknowledges that he failed to raise this issue at trial. Ordinarily, this would result in a waiver of the above issue for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Defendant contends, however, that this issue should be reviewed under the plain-error exception in criminal cases to the waiver rule (see 134 Ill. 2d R. 615(a)). The plain-error rule will be applied in criminal cases if the evidence was closely balanced or if the error was so serious that it deprived the defendant of a fair trial. People v. Priola (1990), 203 Ill. App. 3d 401, 421.

Here, the evidence was not closely balanced. L.D.’s testimony that defendant placed his fist into her vagina was supported by her prompt complaint to the police and hospital personnel, the extent of her injuries, the physical evidence at the scene, including the eggshell fragments and the bloodstained mattress, defendant’s written confession, and the admission in defendant’s letter to L.D. that he had wronged her. Additionally, defendant’s original statement to the police officers who responded to L.D.’s phone call that nothing was wrong was evidence of his consciousness of guilt (see In re P.A.G. (1990), 193 Ill. App. 3d 601, 604 (false exculpatory statement was evidence of consciousness of guilt)), as was his apparent attempt to destroy evidence by washing the bed sheets right after L.D. was injured.

We note that in defendant’s written confession, he admitted placing his fist into L.D.’s vagina and then following her into the shower and asking, “now how’s that feel?” Defendant’s testimony that the two-page confession did not reflect what he told the police in some important respects and that he never read the confession is incredible in light of the fact that he admitted signing the bottom of both pages and initialling the confession in 14 separate places. Furthermore, defendant’s testimony that his entire hand accidentally slipped into L.D.’s vagina is extremely dubious. The State’s evidence against defendant was overwhelming.

Additionally, the alleged error would not have deprived defendant of a fair trial. The prosecuting attorney’s insinuations concerned a remote matter with little, if any relevance. We therefore decline to apply the plain-error rule.

Defendant also contends that he is entitled to a new trial because of certain allegedly improper questions asked during voir dire. The prosecuting attorney repeatedly advised prospective jurors that they would hear two versions of events and then asked if this would automatically create a reasonable doubt in the mind of the prospective juror. Defense objections to each of these questions were overruled by the trial court.

The prosecuting attorney also asked one prospective juror, “Could you find this defendant guilty based upon the victim’s testimony alone if you believe that the defendant was guilty of the offense?” The trial court sustained a defense objection to this question. The prosecuting attorney then asked similar questions, with minor changes, to two other prospective jurors. Defense objections to both questions were sustained by the trial court.

Even if error occurs at trial, a defendant’s conviction will be affirmed on appeal if a review of the entire record reveals that the error was harmless beyond a reasonable doubt. (People v. Arman (1989), 131 Ill. 2d 115, 127.) Error will be considered harmless beyond a reasonable doubt if evidence that was properly admitted was so overwhelming that no fair-minded trier of fact could have reasonably voted to acquit the defendant. People v. Carlson (1982), 92 Ill. 2d 440, 449.

We conclude that any error resulting from the prosecutor’s questioning during voir dire was harmless beyond a reasonable doubt. Ordinarily, we would be reluctant to reach such a conclusion in a case involving conflicting testimony. However, as we have stated, the case against defendant was overwhelming. L.D.’s testimony was corroborated by a great deal of evidence, including defendant’s written confession in which he admitted committing the offense. There was no evidence that the police used any improper coercive tactics to gain the confession. Defendant’s testimony that the brief written confession is inaccurate and that he never read it is belied by his admission that he signed or initialled it 16 times. Accordingly, we conclude that no fair-minded jury could have voted to acquit defendant. Any error in this context was harmless.

Defendant’s final contention is that certain comments made by the prosecuting attorney during closing argument were improper. At one point during his closing argument, the prosecutor stated as follows:

“Who’s going to say, well we have got to prove him guilty beyond a reasonable doubt, beyond all reasonable doubt, and that is not what we are here for. This isn’t perfect evidence. We didn’t scrape off every piece of blood and examine it. This is a marital relationship. If this is consensual of a marital relationship, well, maybe then it should read to [sic] death do us part or until my husband jams his fist in my vagina. Maybe that should be in the marriage contract then.”

Defendant asserts that the last two sentences of this remark were inflammatory and the initial sentence was an improper attempt to define the concept of reasonable doubt.

Defendant also contends that certain other remarks during the prosecutor’s closing statement were improper. In these remarks, the prosecutor stated that if defendant’s testimony was true, all of the police officers who testified were lying. The prosecutor also mentioned that Detectives Piccirilli and Doner had been on the police force for a total of 38 years and questioned whether they would sacrifice their careers for defendant’s case. He further stated that, if the detectives were going to draw up a phony confession, they could have done a better job. According to defendant, these remarks were improper because the prosecutor expressed his personal belief in the credibility of the police officers and implied that they were more credible because they were police officers.

Defendant did not object to these remarks at trial or in his post-trial motion. This issue is therefore waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) We must now decide whether to apply the plain-error rule. As we have previously indicated, the evidence at trial was not closely balanced.

Nor do we believe the alleged errors were serious enough to deprive defendant of a fair trial. We do not interpret the prosecutor’s remarks regarding the police officers’ credibility as opposed to defendant’s as stating that the detectives were more credible because they were police officers or that the prosecutor was personally vouching for their credibility. Instead, the prosecutor was stating that it was doubtful that the officers would have risked their careers by typing up a phony confession which was not based upon defendant’s comments. The prosecutor was also stating that experienced officers such as the two detectives would have come up with a better phony confession had they made it up.

The prosecutor’s remarks regarding reasonable doubt did suggest that this standard was not applicable. However, the trial court instructed the jury that the reasonable doubt standard applied. Even if the prosecutor’s comment that the marriage contract should henceforth read till “death do us part or until my husband jams his fist into my vagina” was improper, we do not believe this would have deprived defendant of a fair trial. We decline to apply the plain-error rule to the prosecutor’s alleged improper comments during closing argument.

For the above reasons, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellee, v. GAWLICKI AND HUSSEY, INC., et al., Defendants (Richard Dolan, as Adm’r of the Estate of Anne Dolan, Deceased, Defendant-Appellant).
    Third District
    No. 3—91—0679
    Opinion filed June 30, 1992.
    Rehearing denied August 10, 1992.

      Jerome E. Boyle, of Alvin W. Block & Associates, of Chicago, for appellant.
    John P. McTigue and John C. Bartler, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff American States Insurance Company for a declaratory judgment that a van driven by an employee of defendant Gawlicki and Hussey, Inc., was not a “non-owned” vehicle under defendant’s policy. The trial court granted plaintiff’s motion for summary judgment. We reverse and remand.

From the pleadings, depositions, and affidavits, the following facts were established. In 1986, Edward Gawlicki bought a van. Title was held in the names of Gawlicki and his wife. Gawlicki made the payments on the van and paid the expenses for the van. Gawlicki used the vehicle in his flooring business and used it for personal matters as well. The Gawlickis owned other vehicles not used in the business and insured them through a different carrier.

Gawlicki later incorporated his business into defendant “Gawlicki and Hussey, Inc.” After this point, the corporation made the payments on the van and paid the gasoline, tire, and repair bills on it. The corporation also used a pickup truck of the other shareholder. The corporation listed the van on a policy issued to it by the Farmers Group. The Gawlickis also listed the van as a covered vehicle on their home auto insurance policy throughout 1988 and 1989.

In March 1989, the corporation bought $500,000 in “nonowned” auto coverage from plaintiff, which extra coverage was needed for a particular job. The policy provided the following:

“Non-owned ‘Autos’ only.
Only those ‘autos’ you lease, hire, rent, or borrow that are used in connection with your business. This includes ‘autos’ owned by your employees, or partners or members of their households but only while used in your business or your personal affairs.”

In June 1989 the van was involved in a collision which killed Anne Dolan. Dolan’s estate filed a wrongful death/survival suit against the corporation and against defendant Frank Gawlicki, an employee of the corporation who was driving the van at the time. Farmers Group issued a check to the corporation for the value of the van, which had been destroyed in the accident. Edward Gawlicki bought another van and took title to it jointly with his wife.

In September 1990, the circuit court entered an order authorizing the Dolan estate administrator to sign a covenant not to execute judgment against certain assets. Under the terms of the covenant, the estate agreed not to execute any judgment it may obtain against the defendant corporation and defendant Frank Gawlicki, except to the extent of insurance coverage, including the coverage issued by plaintiff here, in return for $492,900.99.

In December 1990, plaintiff filed a declaratory judgment action to construe the insurance contract. Before discovery commenced, Edward Gawlicki stated that he “contributed” the van to the defendant corporation. When deposed he stated that he “loaned” the vehicle to the corporation.

Plaintiff filed a motion for summary judgment in which it alleged that the van did not come within the “nonowned” coverage it issued and that an asserted delay in notice defeated coverage. The trial court granted plaintiffs motion, finding that no material issue of fact existed as to ownership of the van and that it was unnecessary to consider the notice issue.

Dolan’s estate now appeals.

Defendant first contends that the policy is ambiguous as to the word “own” and therefore should be construed against plaintiff insurer. The general rule is that the courts will not place an unreasonable construction on language in insurance policies to find an ambiguity. If the words of a policy can reasonably be given their plain, ordinary and popular meaning, the provisions should be applied as written and the parties should be bound to the agreement they made. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) We are unable to find any ambiguity in this policy. While the policy does not specifically define “own,” this word has a plain, dictionary definition which can reasonably be given to it in this contract.

The second issue for review is whether the van is a “non-owned” vehicle under the defendant-corporation’s insurance policy. The ownership of a vehicle for insurance purposes is governed by the intent of the parties at the time of the collision. (Sheary v. State Farm Mutual Automobile Insurance Co. (1991), 207 Ill. App. 3d 1067, 566 N.E.2d 794.) Where there is no genuine issue of material fact as to the question of ownership, summary judgment is in order. (State Farm Mutual Auto Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894, 365 N.E.2d 1329.) Where the facts are not in dispute, their legal effect, such as whether those facts fall within the provisions of an insurance policy, is a matter of law. United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 427 N.E.2d 127.

Here, the facts have been established regarding the corporation’s use of the van and the Gawlickis’ treatment of the van. Edward Gawlicki had bought the van with his own funds and placed title in himself and his wife. Edward and Arleen Gawlicki retained title to the vehicle from the date of its purchase until after it was destroyed in the collision. The van was covered on the Gawlickis’ home auto insurance policy throughout 1988 and 1989. Edward and Arleen Gawlicki entered into no legally binding agreement for the acquisition of the vehicle by defendant corporation. Edward Gawlicki stated that he made the van available for use in the corporation, but had no intent to make a gift of the van to the corporation. He purchased another van titled in the name of himself and his wife with the proceeds paid to the corporation for the loss of the van. Under these circumstances, it is clear that the van’s ownership remained in Edward and Arleen Gawlicki, regardless of the corporation’s having made payments on the vehicle and paying its operating expenses.

Therefore, we reverse the grant of summary judgment for plaintiff and enter judgment for defendant on the issue of ownership and remand to the trial court for consideration of the remaining issue regarding notice.

Reversed and remanded.

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


author: JUSTICE McNAMARA

text:
    ALICE HAYS, a Minor, by her Parent and Next of Friend, Eileen Hays, et al., Plaintiffs-Appellants, v. MYRON FABIAN, Defendant-Appellee.
    First District (6th Division)
    Nos. 1—91—0640, 1—91—0814 cons.
    Opinion filed June 5, 1992.
    Lawrence H. Hyman, of Chicago (Kocsis, Mohr & Gaertner, of Naperville, of counsel), for appellants Alice Hays and Eileen Hays.
    Christ S. Stacey, of Naperville, for appellants Allison Miller and William Miller.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Roger Leroy, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises from two consolidated cases. Plaintiffs, Eileen Hays, individually and as parent and next friend of Alice Hays, a minor (Hays), and William Miller, individually and as father and next friend of Allison Miller, a minor (Miller), filed suit in the circuit court of Cook County to recover damages sustained as a result of the alleged negligence of defendant Myron Fabian after he struck Hays and Miller while driving his automobile. At the conclusion of a jury trial, the trial court denied plaintiffs’ motion for summary judgment on the issue of liability. The jury then returned a verdict in favor of defendant, and the court entered judgment on the verdict. The court denied plaintiffs’ post-trial motion for judgment notwithstanding the verdict, or alternatively, for a new trial. On appeal, plaintiffs contend that the jury’s findings were not supported by the manifest weight of the evidence.

The collision occurred at approximately 5:15 p.m. on November 22, 1987, in Oak Park at the intersection of Garfield Boulevard, which runs in an easterly and westerly direction, and Ridgeland Avenue, a north and south street with one lane of traffic in each direction. A broken yellow line in the middle of Ridgeland marks its center line. Garfield was under construction, and stop signs controlled the traffic approaching Ridgeland. The weather was clear. Miller was a passenger on the Hays bicycle, which was travelling westward on Garfield. Defendant was travelling northbound on Ridgeland, which was a through street, as he approached the intersection and struck the bicycle.

Miller and Hays were each 15 years old at the time of the accident. The girls were both riding on a 10-speed bicycle that belonged to Hays’ brother. Hays was the pedaler of the bicycle, and Miller occupied the seat. Hays testified that she and Miller left the home of a classmate at approximately 5 p.m. As she approached the intersection of Ridgeland and Garfield, she noticed that Garfield was under construction. Hays and Miller dismounted from the bicycle just before the stop sign at Garfield, and Hays walked the bicycle through the construction area. The girls then mounted the bicycle again, and Hays looked both ways. She saw headlights approaching approximately one block away, but believed that she had sufficient time to cross the intersection. Hays gave the bicycle a good push and began pedaling through the intersection. As she approached the middle of the intersection, Hays noted that her front tire was across the center line. Hays then saw headlights directly upon them and heard a crash as the bicycle was struck by defendant’s automobile. At the time of the impact, the rear of the bicycle and Miller sitting on the seat were in the lane being travelled by defendant. Hays sustained a broken ankle, lacerations on her calf, bruises and abrasions on her back, and head and neck pain.

On cross-examination, Hays stated that she had a slight problem starting the bicycle across the intersection because of the weight of Miller on the seat. Hays did not know what gear the bicycle was in at the time of the accident, nor did she know how to shift its gears. There was no headlight on the bicycle.

Miller testified that she was sitting on the bicycle and that her hands were around Hays’ waist, who was standing up and pedaling. Upon getting back on the bicycle at the stop sign, Miller had seen an automobile on Ridgeland. The automobile was about two city blocks away. Miller did not warn Hays not to pull out in front of the automobile. Miller saw the automobile again when it was about five feet away. She did not hear a car horn or any other warning, nor any brakes skidding. At the time of the impact, the back portion of the bicycle was still in the lane being travelled by defendant. As a result of the accident, Miller sustained back injuries and headaches.

Defendant, who was 89 years old at the time of the accident, testified as an adverse witness that he was not supposed to drive after dark. (The accident occurred at dusk, and the streetlights were on.) As he approached the intersection with his headlights on, he did not see the bicyclists. Defendant did not apply his brakes until he saw something on his hood and heard the crack of the windshield.

James Doyle, a disinterested witness, testified for plaintiffs that he was travelling westbound on Garfield and that his automobile was at the northeast comer of Garfield and Ridgeland at the time of the accident. Doyle saw plaintiffs observe the stop at the stop sign and proceed along the curb line. Doyle stated that both vehicles reached the intersection at about the same time, a few seconds before the impact. However, plaintiffs entered the intersection first. At the time of impact, the front tire of the bicycle had crossed the center line of Ridgeland, with the rear part of the bicycle on the northbound half. Doyle further testified that defendant veered to the left just before impact. Doyle believed that if defendant had continued going straight instead of veering, “it would have been close” as to whether an impact would have occurred.

Doyle did not hear the automobile brake, nor did he hear any horn or warnings. Defendant was travelling within the speed limit.

On direct examination, defendant stated that he was driving approximately 25 miles per hour and that he was wearing his glasses at the time of the accident.

There was an Illinois statute in effect which provided that no bicycle shall be used to carry more persons at one time than the number for which is it designed and equipped. (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 1503.) An instruction on the statute was given to the jury.

On appeal, plaintiffs argue that the trial court erred in not granting their motion for a directed verdict on the issue of liability, and that the jury’s verdict was against the manifest weight of the evidence.

At the outset, we find that the trial court correctly ruled that the issue of negligence was a question of fact most appropriately decided by a jury. Whether a driver, in this case the bicyclist, is negligent in entering a controlled intersection on a preferential road is singularly a question of fact, since there are no precise standards, and the issue involves considerations of the relevant speed and distances of the vehicles. Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 380 N.E.2d 407; Garner v. Skafar (1977), 45 Ill. App. 3d 859, 360 N.E.2d 398.

As to the jury verdict, a court of review is empowered to reverse a jury verdict only if it is against the manifest weight of the evidence. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury’s findings are unreasonable, arbitrary and not based upon the evidence. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348; Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.) The credibility of witnesses and weight to be given their testimony are matters for the jury to determine, and unless the determination is manifestly against the weight of the evidence, it will not be disturbed on appeal. (Moran v. Lala (1989), 179 Ill. App. 3d 771, 534 N.E.2d 1319; Cratsley v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 55, 347 N.E.2d 496.) When considering whether a verdict was contrary to the manifest weight of the evidence, a reviewing court must view the evidence in the light most favorable to the appellee, defendant in the present case. (Kemper v. McDougal-Hartmann Co. (1984), 127 Ill. App. 3d 512, 468 N.E.2d 998.) In that regard, we observe that Doyle contradicted plaintiffs’ testimony as to the locations of the vehicles prior to the accident. While plaintiffs testified that defendant’s vehicle was a block or two away when they entered the intersection, Doyle testified that both vehicles entered the intersection at almost the same time.

Plaintiffs emphasize that Doyle testified they entered the intersection first, although admittedly as a matter of a few seconds, and that a portion of the bicycle had crossed over the center line. As such, they urge that those facts require judgment in favor of plaintiffs as a matter of law. (Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758.) However, the fact that one party’s vehicle crossed into the other party’s lane where the collision occurred does not establish negligence as a matter of law, if there is evidence explaining the circumstances from which reasonable inferences favorable to the crossing party could be drawn. Balfour v. Citgo Petroleum Corp. (1983), 116 Ill. App. 3d 140, 452 N.E.2d 46.

Plaintiffs also point to Doyle’s testimony that if defendant had not veered, the accident may not have occurred. However, even if the jury accepted Doyle’s testimony, it may have considered defendant’s veering as a natural reaction rather than a negligent act.

In this case, as in all similarly situated cases, there were conflicts in the evidence and questions of credibility of witnesses to be assessed, which are functions of the jury. (Hasty v. Kilpatrick (1985), 130 Ill. App. 3d 859, 474 N.E.2d 867.) Sufficient evidence was presented from which the jury could infer that defendant was not negligent in striking the bicycle riders. Plaintiffs were riding on a single bicycle in violation of the bicycle safety statute. In addition, Hays did not know how to shift gears on the bicycle. Hays also testified that she had a slight problem starting the bicycle in crossing the intersection because of the weight of Miller on the seat. We further note that defendant was not in violation of the speed limit. We find, therefore, that the jury verdict in favor of defendant cannot be said to be against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE MANNING

text:
    DONNA MARIE MORGAN, Plaintiff-Appellant, v. 253 EAST DELAWARE CONDOMINIUM ASSOCIATION et al., Defendants-Appellees (M.A. Snyder and Associates, Defendant).

    First District (1st Division)
    No. 1—90—0472
    Opinion filed May 18, 1992.

      Orner, Wasserman & Moore, Ltd., of Chicago, for appellant.
    Jobin & Flynn, of Chicago, for appellee 253 East Delaware Condominium Association.

      The notice of appeal inadvertently transposed the name of a defendant who is not a party on this appeal with the name of a defendant/appellee who is a party. To correct this error, we have changed the names on the face of the opinion to reflect the actual parties to the appeal as shown in the record below and the briefs.

   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff-appellant Donna Marie Morgan (hereafter Morgan) brought a four-count complaint against defendant-appellee 253 East Delaware Condominium Association, the building owner (hereafter Delaware); defendant-appellee Joseph Moss Realty, Inc., the building manager (hereafter Moss); and defendant M.A. Snyder & Associates, the leasing agent, for personal injuries sustained when Morgan was assaulted, battered and robbed at gunpoint by an unknown third person in a common area of the premises. Counts I and II of the complaint, sounding in negligence, were filed against Delaware and Moss, respectively. Counts III and IV were filed against Snyder and alleged breach of warranty and consumer fraud violations.

The trial court granted summary judgment in favor of Delaware and Moss on the negligence counts, finding that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. It is from that judgment Morgan appeals. The rulings with respect to counts III and IV have not been appealed; neither is defendant Snyder a party to this appeal.

The facts are summarized as follows. Plaintiff resided in an apartment in a building owned by Delaware and managed by Moss. On September 18, 1986, at about 8:30 p.m. Morgan walked from her class at Loyola University’s downtown campus to the building where she entered the lobby, checked her mail and entered the elevator at the lobby. The assailant, whom Morgan observed talking to the doorman when she first entered the building and as she checked her mail, although she did not hear the conversation between the two men, followed her onto the elevator.

When the elevator arrived at the tenth floor, the assailant poked a gun in Morgan’s back, forced her off the elevator and into the stairwell. He then pushed Morgan down to the ninth-floor landing and robbed and beat her in the face with the gun causing severe injuries.

In the complaint, Morgan alleged that Delaware and Moss were negligent for failing to protect her from the criminal acts of an unknown third party because they voluntarily undertook to provide security but performed in a negligent manner. They filed an answer and amended answer to the complaint denying any allegations of negligence.

Delaware and Moss then filed a motion for summary judgment asserting that they owed no duty to protect Morgan from the criminal acts of an unknown third party. Even so, there was no proximate cause between any alleged negligent act or omission by them and Morgan’s injury.

On June 28, 1989, the trial court heard and granted Delaware and Moss’ motion for summary judgment, without comment on the specific basis for the ruling. However, the court had before it affidavits, discovery depositions, and memoranda in support and opposition to the motion. Similarly, the hearing on Morgan’s motion for reconsideration was held and the motion denied wthout comment by the trial court on January 18, 1990. Morgan has timely filed a notice of appeal from the June 28, 1989, order. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 442, 490 N.E.2d 1252.

On appeal, Morgan first contends the trial court erred in granting the motion for summary judgment, by implicitly finding, as a matter of law, that Delaware and Moss did not owe her any duty for injuries caused by the criminal acts of a third party. She urges that Delaware and Moss voluntarily undertook certain measures to provide security for the benefit of the residents of the building. She further argues that a duty on the part of the landlord to protect tenants and occupants of the building arose out of the voluntary undertaking to protect and that Delaware and Moss negligently performed such undertaking proximately causing her injuries and damages. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.) Morgan asserts that Illinois recognizes two bases to impose liability on a landlord for harm done by a criminal and that the second basis, which involves action on the landlord’s part that materially increases the risk of criminal activity, applies here. (Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433.) Minimally, Morgan contends it is a material question of fact whether Delaware and Moss performed their voluntary undertaking to protect in a nonnegligent manner.

As a general rule, Illinois does not impose a duty to protect others from criminal attacks by third persons; however, an exception is recognized where the criminal attack was reasonably foreseeable and the parties had a special relationship such as carrier-passenger, innkeeper-guest, business inviter-invitee, or voluntary custodian-protectee. (Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427; Rowe v. State Bank of Lombard (1988), 125 Ill. 2d 203, 531 N.E.2d 1358.) The landlord-tenant relationship is not the sort of “special relationship” which renders the landlord responsible and liable for criminal acts of a third person. Thus, the general rule is that at common law, a landlord did not owe a tenant or social guest a duty to protect the tenant or guest from criminal acts. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Carrigan v. New World Enterprises, Ltd. (1983), 112 Ill. App. 3d 970, 446 N.E.2d 265.) This rule is based upon the principle that the landlord is not an insurer and cannot be held liable to the tenant for harm done by every criminal intruder. Duncavage v. Allen, 147 Ill. App. 3d 88.

However, our supreme court has determined that liability will be imposed on a landlord who voluntarily undertakes to provide security measures, but performs the undertaking negligently, if the negligence is the proximate cause of the injury to the plaintiff. (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038.) It is generally recognized that to state a legally sufficient claim for negligence, plaintiff must allege the existence of a duty owed by defendant to plaintiff, breach of that duty, and injury proximately caused by that breach. (McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499.) Thus, a negligence complaint against a landlord must set forth the existence of a duty owed by the landlord to the tenant, breach of that duty and an injury resulting from the breach. (Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 514 N.E.2d 552.) However, if the owner assumes a duty to protect tenants against some criminal acts of third parties, its duty is limited by the extent of the undertaking and the injuries sustained must be reasonably foreseeable. Rowe v. State Bank (1988), 125 Ill. 2d 203.

Whether there exists, any legal duty owed by defendant to the plaintiff who seeks to bring a negligence action must be determined by the courts as a matter of law. (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088.) Stated another way, Illinois law mandates that the determination of whether defendant and plaintiff stand in such a relationship to one another that the law imposes upon defendant the obligation of reasonable conduct for the benefit of the plaintiff is a question of law (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387), and such question is properly addressed by the court on a motion for summary judgment. Laco v. City of Chicago (1987), 154 Ill. App. 3d 498, 507 N.E.2d 64.

Based upon the foregoing principles of law, we find that a review of the facts of this case supports the trial court’s grant of summary judgment on behalf of defendants on the ground that, as a matter of law, there was no legal duty owed by defendants to Morgan to protect her from the criminal acts of third persons. Because there was no special relationship between Delaware, Moss and Morgan here, defendants were under no legal duty to protect Morgan from the criminal acts of the assailant.

Even assuming arguendo that Delaware and Moss did voluntarily undertake certain security precautions, any duty which arises out of that undertaking is limited by the extent of the undertaking. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769.) A review of the complaint and other pleadings, depositions and affidavits in the record below reveals that defendants did undertake to secure the building. However, the extent of that undertaking was limited to screening of guests; there was no security force or private police, nor was there an undertaking by defendants to become absolute insurers for harm done to tenants by criminal attacks of third persons.

Specifically, the extent of the undertaking here involved providing a doorman to stop all visitors to the building and to make sure that a tenant authorized the visitors’ entry, which was done in the instant case. The doorman, Gillespie, testified that Morgan was at the mailboxes when the purported assailant entered the lobby through the revolving door and approached the desk. Gillespie noticed nothing unusual about the man and inquired of him, “Excuse me, can I help you?” to which the man responded “Unit 13G.” Gillespie then turned and using the in-house phone system told the tenant in 13G that his guest was downstairs, and the tenant in 13G said “Let him up.” Gillespie also testified that he knew the tenant in unit 13G, whose name was Daniel Mueller, that he recognized Mueller on the phone from previous conversations and that Mueller had told Gillespie earlier that evening he was expecting guests. GiHespie further stated that prior to this incident, he was unaware of any incidents involving robbery, beatings, mugging or vandalism in the building.

Additionally, Morgan’s own testimony revealed that she observed the doorman talking to the assailant minutes before he entered the elevator with her. She also corroborates Gillespie’s testimony and that of the engineer, Mr. Gliebe, who was in the lobby during this time, that the doorman was on the phone. There was no testimony that anyone else was in the lobby during this time. Morgan also stated that when she first spoke with Ms. Stewart at the leasing agent’s office, she was assured that the neighborhood was safe and that the building had security, including a 24-hour doorman on duty in the lobby. There was also testimony that all the doors in the building remained locked except the front door entrance, which was locked from 10 p.m. until 7 a.m.

Furthermore, the facts show that the proximate cause of Morgan’s injuries was the independent intervening criminal acts of the assailant, rather than a condition created by Delaware and Moss, such as providing a doorman. The evidence reflects that defendants took measures to decrease the risk of criminal activity by providing a 24-hour doorman and a system whereby any nontenant or unauthorized person entering the building first had to be cleared for entry into the building by a tenant. As stated, the record reflects that Mr. Gillespie followed the building procedures by inquiring of the presumed assailant the tenant he was there to see and by using the in-house phone system to inform the tenant in that apartment that his guest had arrived.

The housing authority’s voluntary undertaking in Pippin (78 Ill. 2d 204, 399 N.E.2d 596) was to hire a security firm to provide guard services for its building, and in Phillips (89 Ill. 2d 123, 431 N.E.2d 1038), the housing authority also had voluntarily undertaken steps to close off and secure certain floors to prevent the commission of crimes thereon. In each one of the cases, our supreme court viewed the query as whether the defendants had performed their undertaking in a negligent manner. Having already answered that query in the negative here, we hold that the trial court’s grant of summary judgment in favor of Delaware and Moss was proper.

Morgan also contends that the trial court erred when it granted the summary judgment because the defendants’ amended answer, wherein Delaware and Moss denied certain factual allegations that had been purportedly admitted in the original answer, presented contradictory admissions and inconsistent pleadings before the trial court sufficient to defeat the summary judgment motion. We hold that the amendment of the answer in question here is irrelevant to the disposition of the summary judgment motion. The portion of the answer that was amended concerns a question of duty, which is a matter of law for the court, and not the jury. Bence v. Crawford Savings & Loan Association (1980), 80 Ill. App. 3d 491, 400 N.E.2d 39.

For the reasons given, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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