author: JUSTICE GOLDENHERSH

text:
    BI-STATE DISPOSAL, INC., Petitioner-Appellant, v. THE ENVIRONMENTAL PROTECTION AGENCY et al., Respondents-Appellees.
    Fifth District
    No. 5 — 89—0442
    Opinion filed October 2, 1990.

      Immel, Zelle, Ogren, McClain, Germeraad & Costello, of Springfield (Thomas J. Immel, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Christine Zeman, Assistant Attorney General, and John J. Kim, law graduate, of counsel), for respondents.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Bi-State Disposal, Inc., appeals from an order of respondent, the Illinois Environmental Protection Agency (Agency), affirmed by the Illinois Pollution Control Board (Board), holding that a proposed modification of the landfill in question constitutes a new regional pollution control facility, and that petitioner must seek local site location suitability approval pursuant to section 39.2 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1039.2) before applying to the Agency for modification. We affirm.

On September 5, 1975, the former site operator received a developmental permit to develop the site in question. On March 10, 1978, an operating permit was issued. This permit allowed the 40-acre site to be developed in two phases. The second phase was to include the filling of a mine cut, which bisected the site, with nonputrescible waste. On November 12, 1981, Public Act 82 — 682 became effective, amending the Act. The additional language requires new regional pollution control facilities to submit proof of local siting approval before applying for permits from the Agency. Ill. Rev. Stat. 1989, ch. 1111/2, pars. 1003.32,1039(c).

On April 20, 1982, the operating permit was transferred to petitioner. Later in 1982, petitioner’s consulting engineers proposed a modification of the facility which eliminated the mine cut from use. Agency regulations required petitioner to apply for a new permit reflecting the change, and on November 1, 1982, such a supplemental permit was issued to petitioner. An additional supplemental permit was issued on August 29, 1985, approving further modifications. Restoration of the mine cut’s use was not at issue in that modification.

On January 13, 1989, petitioner applied for another supplemental permit seeking to reopen the mine cut for use. The Agency denied the permit application on February 15, 1989, holding that the requisite proof of local siting approval was not submitted. The Agency further held that petitioner failed to send out proper notices of filing as required by section 807.205(f) of the Board’s Rules and Regulations. (35 Ill. Admin. Code §807.205(f) (1985).) Petitioner appealed, and the Board in an opinion dated June 8, 1989, found against petitioner, holding that the proposed permit modification constitutes a new regional pollution control facility and petitioner must seek local site suitability approval under section 39.2 of the Act. (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1039.2.) As the siting issue was dispositive, the Board did not discuss the notice issue.

The sole issue on appeal is whether petitioner sought to establish a new regional pollution control facility or merely to use a portion of its existing facility. Petitioner specifically argues that the words “beyond the boundary of a currently permitted” facility of section 3.32 of the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1003.32) should be interpreted to mean “a facility for which a permit was held on July 1, 1981.” Under petitioner’s interpretation, a request to use an area within the geographical boundaries of the permitted area does not comprise a request for a new facility with its siting approval requirement. The Agency and Board respond that the purpose of the section was to require the approval of local authorities in the permit process. Moreover, the Agency argues that the word “currently” in the statute means “as of the present time” and not “as of the effective date.”

Section 39(c) of the Act states, in pertinent part:

“[N]o permit for the development or construction of a new regional pollution control facility may be granted by the Agency unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located in accordance with Section 39.2 of this Act.” (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1039(c).)

A “new regional pollution control facility” is defined by section 3.32(b) of the Act:

“(b) A new regional pollution control facility is:
(1) a regional pollution control facility initially permitted for development or construction after July 1, 1981; or
(2) the area of expansion beyond the boundary of a currently permitted regional pollution control facility; or
(3) a permitted regional pollution control facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste.” Ill. Rev. Stat. 1989, ch. 1111/2, pars. 1003.32 (b)(1), (b)(2), (b)(3).

Basic tenets of statutory construction guide our consideration of this issue. This court must determine and give effect to the intent of the General Assembly in enacting the subject legislation. The language used is the primary source for determining this intent. (United, States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 43, 380 N.E.2d 909, 915.) If the plain language of the statute makes clear the legislative intent, the court need inquire no further. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585, 587.) Words used in a statute are to be given their ordinary and popularly understood meaning. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 423, 519 N.E.2d 459, 461; Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194, 381 N.E.2d 222, 224.) Although courts generally accord great deference to the interpretation placed on a statute by an agency charged with its administration, that interpretation will be rejected if erroneous. Carson Pirie Scott & Co. v. Department of Employment Security (1989), 131 Ill. 2d 23, 34, 544 N.E.2d 772, 777; City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.

In M.I.G. Investments, Inc. v. Environmental Protection Agency (1988), 122 Ill. 2d 392, 523 N.E.2d 1, the supreme court applied these tenets of statutory construction in considering this same statute. The court found that the General Assembly amended the Act to give local governmental authorities a voice in landfill decisions that affect them.

The court stated:

“From the language of section 3(x)(2) [Ill. Rev. Stat. 1985, ch. 1111/2, par. 1003(x)(2) (now section 3.32(2) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1003.32))], it is clear that the legislature intended to invest local governments with the right to assess not merely the location of proposed landfills, but also the impact of alterations in the scope and nature of previously permitted landfill facilities.” 122 Ill. 2d at 400, 523 N.E.2d at 4.

In M.I.G., the supreme court impliedly considered the “currently” debate in the instant case. In that case, the petitioners operated a landfill permitted since 1972. (M.I.G. Investments, Inc. v. Environmental Protection Agency (1986), 151 Ill. App. 3d 488, 489, 502 N.E.2d 1042, 1043.) In 1985, they submitted an application for a supplementary permit seeking to increase the vertical contour levels of the landfill. The supreme court noted that expanding the boundaries of a landfill increases its capacity to accept and dispose of waste. The court held that this increase impacts on the criteria local governmental authorities consider in assessing the propriety of establishing a new regional pollution control facility.

“To expand the boundaries of a landfill, whether vertically or laterally, in effect, increases its capacity to accept and dispose of waste. An increase in the amount of waste contained in a facility will surely have an impact on the criteria set out in section 39.2(a), which local governmental authorities are to consider in assessing the propriety of establishing a new pollution control facility. Indeed, adjusting the dimensions of a landfill facility to increase the amount of waste stored will surely have an impact on ‘the danger to the surrounding area from fire, spills or other operational accidents’ and ‘the character of the surrounding area.’ Ill. Rev. Stat. 1985, ch. 1111/2, pars. 1039.2(a)(v), (iii).” (122 Ill. 2d at 401, 523 N.E.2d at 5.)

As the facility was permitted in 1972, the court seems to have adopted the Agency’s definition of currently — -“as of the present time” and not “as of the effective date.”

Although in M.I.G. the vertical increase would have been above, not below, ground level, the same standards apply in this case. Here, reinstating the mine cut will increase the capacity of the landfill to accept and dispose of waste. This increased capacity impacts on the criteria local governmental authorities consider in assessing the propriety of establishing a new regional pollution control facility.

In its opinion, the Board stated that it was bound by the interpretation of the term “currently” found in Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394, in which the supreme court construed a statute that provided for the payment of a pension to widows of firemen dying in the line of duty. The statute called for a payment equal to a percentage of the “current annual salary” of the fireman’s classified position at the time of his death. The supreme court interpreted the word to mean “at the present time.” In light of our discussion above, the Board’s reliance on Kozak is not erroneous.

The application for a supplemental permit constitutes a proposed expansion and thus a new regional pollution control facility. Petitioners seek to vertically expand, although into a ditch instead of above the ground, the boundaries of the landfill in question. Therefore, it is a new regional pollution control facility under the definition of section 3.32(2). (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1003.32.) Petitioners must seek local siting approval before applying to the EPA for a permit.

For the foregoing reasons, the order of the Illinois Pollution Control Board is affirmed.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH JUSTICE WELCH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN C. STORK et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0068
    Opinion filed October 2, 1990.

      WELCH, J., dissenting.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James J. Gomric, of Belleville, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court of Randolph County granting the motion to suppress as evidence a quantity of cannabis seized following a search of the house and surrounding area owned and occupied by defendants, John C. Stork and Sonya M. Stork, husband and wife. In this cause, the People raise the issue whether the trial court erred in finding that the area in which the cannabis was initially observed was within the classic curtilage of the dwelling and, therefore, protected from official intrusion. This court affirms.

The facts in this case are undisputed. On August 13, 1988, while at the Randolph County jail, Trooper James Spier of the Illinois State Police received an anonymous telephone call informing him that marijuana was being grown on defendants’ property behind defendants’ residence. Trooper Spier then notified Deputy Theis of the Randolph County sheriff’s department, and the two of them went without a warrant to defendants’ property in an attempt to verify the anonymous tip. The officers drove past the front of defendants’ residence, but were unable to observe anything improper or illegal. The officers then drove about three miles east of defendants’ property and parked their car. They walked through a wooded area until they came upon defendants’ property. Both officers testified at the suppression hearing that while in the woods they smelled the odor of growing cannabis and continued to follow the scent. The officers continued toward defendants’ residence until they were approximately 50 feet from defendants’ garage, at which time they observed several marijuana plants. Defendants’ home was located approximately 50 feet on the other side of the garage. The officers also observed a well-worn path and a hose running from defendants’ property to the plants. Both officers testified that they knew they were on defendants’ property at the time they observed the marijuana plants. The area in question was not visible from the public road in front of defendants’ residence because of the garage and a brush pile on one side and surrounding woods on the other three sides.

On the following day, August 14, 1988, Deputy Theis filed a sworn complaint for a search warrant in which he explained the anonymous tip and the officers’ walk in the wooded area which led to the discovery of the cannabis. The complaint did not mention that the officers had entered onto defendants’ property, nor did it mention the odor of growing cannabis. On the basis of the complaint, a search warrant was issued. Deputy Theis returned to the area and met with Trooper Spier and MEG Agent Akins, who were waiting for him at defendants’ residence. All three proceeded to search the residence and other areas authorized by the search warrant. The officers seized over 50 cannabis plants growing outside defendants’' home. A search of defendants’ home netted various drug paraphernalia and several more cannabis plants which were found growing in the basement. A warrant was then issued for defendants’ arrest, after which both defendants voluntarily surrendered. Both defendants were charged with unlawful possession of cannabis in violation of section 4(e) of the Cannabis Control Act (the Act) (Ill. Rev. Stat. 1987, ch. 561/2, par. 704(e)), unlawful manufacture of cannabis in violation of section 5(e) of the Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 705(e)), and unlawful production of Cannabis sativa plant in violation of section 8(d) of the Act (111. Rev. Stat. 1987, ch. 56V2, par. 708(d)).

On January 10, 1989, defendants filed a motion to suppress the evidence obtained under the search warrant on the basis that the information on which the search warrant was issued was obtained during an illegal search of defendants’ property. After a hearing on the motion, the trial court found that the officers had conducted an illegal, warrantless search on August 13, 1988, by entering the curtilage of defendants’ home to observe the plants. The trial court refused to apply the open fields doctrine to this case because of its belief that the officers had traveled too close to defendants’ home to fall within that category. Defendants’ motion to suppress was, therefore, granted. The State subsequently filed a motion to reconsider, which was denied. This appeal followed.

The State challenges the trial court’s ruling as manifestly erroneous and argues that the area in which the plants were initially observed was not within the curtilage of defendants’ home and, therefore, was not protected from official intrusion. The State specifically argues that the cannabis was in plain view in an open field.

Under the open fields doctrine, incriminating evidence in plain view in an open field is not constitutionally protected under the fourth amendment. (Hester v. United States (1924), 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445.) As Justice Holmes pointed out in Hester, “the special protection accorded by the 4th Amendment to the people in their ‘persons, houses, papers and effects’ is not extended to the open fields.” (265 U.S. at 59, 68 L. Ed. at 900, 44 S. Ct. at 446.) Illinois has recognized the validity of the open fields doctrine and plain view search and seizure cases. (City of Decatur v. Kushmer (1969), 43 Ill. 2d 334, 253 N.E.2d 425.) However, the protection of privacy afforded by the fourth amendment includes not only the interior of a person’s house, but has extended to open areas immediately adjacent thereto. (Wattenburg v. United States (1968), 388 E2d 853, 857.) The difference between an immediately adjacent protected area and an unprotected open field has usually been analyzed as a problem of determining the extent of the “curtilage.” (388 F.2d at 857.) Whether the place searched lies within the curtilage is to be determined from the facts. (388 F.2d at 857.) In United States v. Dunn (1987), 480 U.S. 294, 94 L. Ed. 2d 326, 107 S. Ct. 1134, the Supreme Court set out four factors to be used in determining whether in search and seizure cases an area in question falls within the curtilage. The Dunn court stated that such questions should be resolved with a particular reference to

“the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” (480 U.S. at 301, 94 L. Ed. 2d at 334-35, 107 S. Ct. at 1139.)

The Dunn court noted that these four factors do not produce a finely tuned formula, but rather, should be considered as useful analytical tools with the primary focus in such cases being whether the area in question harbors those intimate activities associated with domestic life and privacies of the home and, thereby, protected by the fourth amendment. (480 U.S. at 300, 94 L. Ed. 2d at 334, 107 S. Ct. at 1139.) Applying these factors to the instant case, we cannot say that the trial court erred in determining that the area where the cannabis was found growing fell within the curtilage of defendants’ home.

First, the record discloses that the garage is located approximately 50 feet behind defendants’ house. The plants were growing in an area starting approximately 50 feet behind defendants’ garage and ending approximately 75 feet behind defendants’ garage. We believe that this relatively short distance supports an inference that the area was within defendants’ own backyard and not in open fields. Second, while there was no fence enclosing the area, the State itself admitted in its brief that the area in question was not visible from the public road by virtue of the garage and a brush pile on one side and the woods on the other three sides. Third, an area 50 feet behind a person’s garage and home is close enough to be considered one’s own backyard which could be used for a number of family activities, including recreation or gardening. Fourth, defendants posted a “No Trespassing” sign at the front of their property near the driveway. The record discloses that nothing more should be necessary to prevent persons from observing what was in defendants’ backyard, as it was hidden from view due to a garage and brush pile on one side and the surrounding woods on the other three sides.

In addition to this four-prong test, the facts also indicate that the officers only gained entry to defendants’ property by parking approximately three miles down the road from defendants’ property and hiking back through woods owned by another individual. The officers admitted that they were unable to see any cannabis prior to their entry on defendants’ own land, only 50 to 75 feet behind defendants’ garage. The officers claim to have smelled growing cannabis prior to their entry on defendants’ land, but this fact was not made known to the judge who issued the warrant. The judge who issued the warrant was also not made aware of the fact that the officers had entered onto defendants’ property before seeing the cannabis.

The facts of the present case establish that defendants expected their backyard to be private and free from outside intrusion. We do not believe that the trial court erred in finding that the officers conducted an illegal, warrantless search on August 13, 1988, by entering the curtilage of defendants’ home which was the basis for the warrant issued on August 14, 1988. Therefore, the trial court properly granted defendants’ motion to suppress the cannabis seized.

For the foregoing reasons, the order of the circuit court of Randolph County is affirmed.

Affirmed.

HOWERTON, J., concurs.

JUSTICE WELCH,

dissenting:

I dissent from the majority opinion because I do not agree that the area in which the cannabis was initially observed was within the curtilage of the dwelling. Instead, I believe the marijuana was observed in an “open field” and that the search warrant was properly issued based upon the officers’ lawful observance of cannabis growing in an open field.

The extent of a dwelling’s curtilage is determined by factors which bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. (United States v. Dunn (1987), 480 U.S. 294, 300, 94 L. Ed. 2d 326, 334, 107 S. Ct. 1134, 1139.) As the majority points out, the question should be determined with particular reference to four factors: the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-35,107 S. Ct. at 1139.

I believe the instant case is remarkably similar to People v. Bechtel (1985), 137 Ill. App. 3d 810, 485 N.E.2d 474, cert, denied (1986), 476 U.S. 1143, 90 L. Ed. 2d 699, 106 S. Ct. 2254, in which the appellate court reversed a trial court’s finding that a garden, located approximately 120 to 150 feet from the house and behind a barn, was curtilage and therefore protected under the fourth amendment. The garden was surrounded on two sides by a plank fence four to six feet high, but on one side adjoined an open corn field. There was no common enclosure surrounding the various structures and the garden.

The appellate court found that the garden was not so closely adjacent to the house as to be within the dwelling’s immediate surroundings. It was separated from the house by a barn and a driveway and was not annexed to the residence. This court found that the open and comparatively accessible garden was not the type of area so fundamentally related to the householder’s private occupation of his dwelling as to fall within the concept of curtilage.

Similarly, in the instant case, I do not believe that the garden containing the marijuana was so closely adjacent to the house as to fall within its curtilage. The garden was approximately 100 to 125 feet behind the house and separated from the house by a garage. Thus, it was some distance from the house and cannot be said to be part of the householders’ backyard. There was no fence or enclosure around the house and garden. There is no evidence in the record that the garden was used for any purpose other than the growing of marijuana, such as the growing of vegetables for home consumption or recreating. Finally, defendants had taken no steps to protect the garden from observation by people passing by. The garden was surrounded by woods on three sides, and by a shed and brush pile on one side. While the garden was not visible from the public road in front of defendants’ house, it was visible from the woods behind the house and garden. Defendants do not argue that the woods behind the house also constituted curtilage, and the officers’ presence in the woods did not violate defendants’ fourth amendment rights under the “open fields” doctrine. Oliver v. United States (1984), 466 U.S. 170, 180, 80 L. Ed. 2d 214, 224, 104 S. Ct. 1735, 1742 (an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home).

Applying the four factors set forth in Dunn to the case at bar, I believe that the garden where the marijuana was found was not curtilage, but was an open field which was not protected by the fourth amendment. I believe the trial court’s finding to the contrary was manifestly erroneous, and I would reverse its judgment suppressing the cannabis as evidence.


author: JUSTICE HARRISON

text:
    LOLA BROWN et al, Plaintiffs-Appellants, v. THE CITY OF GREENVILLE, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0270
    Opinion filed October 3, 1990.
    Robert J. Selsor, of St. Louis, Missouri, for appellants.
    Meyer & Meyer, of Greenville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On April 16, 1990, plaintiffs, Frank Davis, Cornelia Davis and Louisa Randazzo, were allowed to withdraw their suit by order of the circuit court of Bond County. The remaining plaintiffs appeal the order of the trial court entered on April 5, 1990, denying plaintiffs’ request for preliminary injunction and ordering that the temporary restraining order previously entered be set aside.

The salient facts of this litigation may be stated briefly as the parties are in basic agreement with the trial court’s findings of fact. The defendant-appellee City of Greenville was negotiating for the purchase of 204 acres from private persons for a purchase price of $877,200. After obtaining title to the subject real estate, the City of Greenville intended to convey it, without legal consideration, to the United States of America for the use of the Department of Justice Bureau of Prisons with the understanding that a Federal prison facility would thereafter be constructed and operated thereon. The real estate was annexed to the City of Greenville, a non-home-rule municipality.

The plaintiffs filed their verified complaint on March 12, 1990, and a temporary restraining order was entered by the court on the same date enjoining the defendant and its officers from closing on the purchase of real property and disbursing any funds for such purpose. The gravamen of plaintiffs’ complaint was that defendant does not have authority to convey real estate to the Federal government and that any action by the city in furtherance of that purpose is illegal and void. The plaintiffs prayed in their complaint for a preliminary injunction enjoining the defendant from closing on the purchase of the subject real estate. As previously stated, the trial court entered an order denying the preliminary injunction and the plaintiffs appeal pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307).

The sole issue on appeal is whether the defendant, a non-home-rule municipality, has authority to purchase, hold and convey real estate to the United States so that a Federal correctional facility may be built thereon.

Article VII, section 7, of the Illinois Constitution provides that “[cjounties and municipalities which are not home rule units shall have only the powers granted to them by law.” (Ill. Const. 1970, art. VII, §7.) This means that .the Illinois Constitution provides that local governmental non-home-rule units as creatures of the State have only the powers that are affirmatively granted to them by the General Assembly. (See Arms v. City of Chicago (1924), 314 Ill. 316, 145 N.E. 407.) Because of this, the plaintiffs correctly argue in their brief that there must be express authority which would enable the City of Greenville to implement the plan to provide real estate for a prison facility. We must therefore determine if there is a statute providing such express authority.

The trial court in its order denying the preliminary injunction refers to at least one statute that does grant the required authority to the defendant City of Greenville. The trial court relied in part upon section 11 — 77—1(1) of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 77—1(1)), which provides:

“The corporate authorities in every municipality, incorporated under any law of this state, have the power, by ordinance:
(1) To convey, grant, transfer, or sell to the United States of America, or to any proper agency thereof, any real or personal property owned by the municipality, upon such terms as may be agreed upon by the corporate authorities, or in consideration of a grant or loan of money by the United States of America, or any agency thereof, for the construction, extension, or improvement of any public works project or municipal building.”

The term “public work” has been used in Illinois to describe the building of a jail. (County of Mercer v. Wolff (1908), 237 Ill. 74, 78.) In the context of a public work, we see no difference between a jail and any other prison facility because all such facilities are public necessities. Because the case sub judice thus involves a proposed grant to the United States of America of real property by a municipality upon its terms for the construction of a public works project, the statute fits this case.

The decision to grant or deny a preliminary injunction rests in the sound discretion of the trial judge, and appellate review is restricted to a determination of whether the trial court correctly exercised its broad discretionary powers. (Rao v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1986), 140 Ill. App. 3d 442, 456, 488 N.E.2d 685, 694.) We cannot say that the denial of the preliminary injunction on the facts and under the law in this case was an abuse of discretion.

For these reasons, the order of the circuit court of Bond County denying the preliminary injunction and terminating the temporary restraining order is affirmed.

Affirmed.

CHAPMAN and WELCH, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ART NELSON, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0687
    Opinion filed October 3, 1990.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Charles Garnati, Special Assistant State’s Attorney, and Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Art Nelson, was found guilty after a jury trial of aggravated criminal sexual assault and aggravated criminal sexual abuse and was sentenced by the circuit court of Jackson County to 10 years’ imprisonment for the aggravated criminal sexual assault. Defendant appeals his conviction, arguing the court improperly allowed the testimony of the State’s expert to be presented to the jury. We affirm.

According to the evidence presented at trial, the victim first became acquainted with defendant when he was in the third grade. The victim, his father, and defendant would all go fishing together. By the time the victim was in the fifth grade, he was allowed to go fishing alone with defendant. Defendant would buy him snack cakes for such trips and often stopped at a Dairy Queen for ice cream afterwards. Often defendant would allow the victim to drive the car if the victim sat on defendant’s lap while so doing. Eventually the victim noticed defendant frequently encouraged him to go to the bathroom and would try to get close to him while he was urinating. In the summer between the fifth and sixth grades, defendant’s encouragement culminated in touching the victim’s penis with both his hands and mouth. The last incident occurred sometime in February of 1987 while the victim was in sixth grade. The victim refused to go on any other fishing trips with defendant after the assault in February but did not tell anyone about defendant’s activities. Sometime in April, the victim’s mother, after hearing some rumors, questioned the victim about defendant and whether he ever had done anything “bad” to the victim. The victim eventually revealed the nature of the activities to his mother and a caseworker from the Department of Children and Family Services. The victim’s mother further testified the victim no longer wanted to go fishing with anyone, his grades in school had dropped and he often was afraid, sleeping on the floor of his parents’ bedroom. Defendant denied any abuse had occurred. He believed the accusations arose from ill-feelings between the two families. He further testified he had worked the first three Saturdays in February and on the fourth Saturday went fishing with some friends at another lake than where the alleged abuse occurred. The jury, however, chose to believe the victim.

Defendant argues on appeal he was denied a fair trial through the rebuttal testimony of the State’s expert, Dr. Hoffman, a psychologist. According to defendant, Dr. Hoffman, in relating to the jury the victim’s behavior and attitude not only was allowed to testify to hearsay statements of the victim, but also was allowed to place the weight of her opinion behind the credibility of the -victim. More importantly, she was permitted to explain to the jury the “child sexual abuse syndrome” and how the victim’s behavior coincided with such a syndrome when the field of psychology, according to defendant’s expert, has not recognized the term. In ruling on his post-trial motion, the trial court apparently agreed with defendant that the expert’s testimony pertaining to the child sexual abuse syndrome was improper but amounted to nothing more than harmless error in this instance. Defendant takes exception with this finding, arguing that when the only evidence against him came from the victim, the expert went too far in diagnosing the victim as suffering from the syndrome, being the equivalent of an assertion by a professional that the victim was being truthful when admittedly much of the victim’s behavior could have been caused by other factors.

We, like many other jurisdictions, are increasingly faced with cases of sexual abuse of children. And, like many other jurisdictions, we are now required to decide whether certain types of expert testimony pertaining to such abuse, particularly the child sexual abuse syndrome, are admissible to aid the prosecution in presenting its case. Given the nature of the crime and perceived inherent weaknesses of such cases, a young, often traumatized child pitted against a seemingly respectable adult, this is not a surprising development. (See generally Gardner, Prosecutors Should Think Twice Before Using Experts in Child Abuse Cases, 3 Crim. Just. 12, 12 (1988); Roe, Expert Testimony in Child Sexual Abuse Cases, 40 U. Miami L. Rev. 97, 97 (1985) ; Comment, The Admissibility of Expert Testimony in Intrafamily Child Sexual Abuse Cases, 34 U.C.L.A. L. Rev. 175, 175-76 (1986) (hereinafter cited as Intrafamily Child Sexual Abuse).) With this opinion, we choose to join the ranks of those jurisdictions which, in limited circumstances, allow expert testimony pertaining to the child sexual abuse syndrome.

In general, “syndrome” refers to a concurrence of symptoms or a group of signs tending to indicate a particular condition. (See Note, The Syndrome Syndrome: Problems Concerning the Admissibility of Expert Testimony on Psychological Profiles, 37 U. Fla. L. Rev. 1035, 1036 (1985); Comment, Syndrome Testimony in Child Abuse Prosecutions: The Wave of the Future?, 8 St. Louis U. Pub. L. Rev. 207, 208 (1989).) The child sexual abuse syndrome, also known as the child sexual abuse accommodation syndrome, then refers to that group of symptoms or behavior patterns typically manifested by young victims of sexual abuse. (See Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Int’l J. Child Abuse & Neglect 177 (1983).) One scholar, Dr. Ronald Summit, lists five such typical reactions or stages under the label of child sexual abuse accommodation syndrome, these being: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) retraction. (Summit, 7 Int’l J. Child Abuse & Neglect at 181-88.) Other researchers, on the other hand, believe the number of possible symptom constellations is infinite because of the various degrees of abuse committed upon children from various backgrounds and ages. (See McCord, Expert Psychological Testimony About Child Complaints in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J. Crim. L. & Criminology 1, 18-24 (1986); Comment, The Admissibility of Expert Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U. Miami L. Rev. 1033, 1048-50 (1988) (hereinafter cited as Expert Psychological Testimony).) What is certain, however, is that children who have been sexually abused behave differently from children who have not been abused. Explaining such differences is the critical element, not what label may be selected to aid in the explanations.

We are not unfamiliar with syndrome testimony in general. Our courts have previously found admissible evidence of rape trauma syndrome (see People v. Douglas (1989), 183 Ill. App. 3d 241, 256-57, 538 N.E.2d 1335, 1344), battered child syndrome (People v. Platter (1980), 89 Ill. App. 3d 803, 819, 412 N.E.2d 181, 193), and battered woman syndrome (see People v. Minnis (1983), 118 Ill. App. 3d 345, 356-57, 455 N.E.2d 209, 217-18). We have even gone so far as to allow experts to explain or testify with respect to the behavior of child victims being consistent with certain models for victims of child sexual assault under the guise of the rape trauma syndrome (People v. Server (1986), 148 Ill. App. 3d 888, 897-99, 499 N.E.2d 1019, 1025-26) (superseded in part by statute as stated in People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366, on unrelated issue), or under the label of post-traumatic stress syndrome (People v. Roy (1990), 201 Ill. App. 3d 166, 180; People v. Kelly (1989), 185 Ill. App. 3d 43, 50-51, 540 N.E.2d 1125, 1130-31). (See also People v. Ridgeway (1990), 194 Ill. App. 3d 881, 886-87, 551 N.E.2d 790, 792-93 (expert testimony admissible but not labeled under any particular syndrome although sexually abused child syndrome mentioned in passing).) The clear trend in Illinois is toward the admission of expert testimony pertaining to psychological syndromes where such evidence aids the trier of fact. Generally speaking, expert testimony will be admitted if the expert has some knowledge or experience, not common to the world, which will aid the finder of fact in arriving at a determination on the question or issue. (Douglas, 183 Ill. App. 3d at 256, 538 N.E.2d at 1344; Server, 148 Ill. App. 3d at 897-98, 499 N.E.2d at 1025-26.) Behavioral and psychological characteristics of child sexual abuse victims are proper subjects for expert testimony. Few jurors have sufficient familiarity with child sexual abuse to understand the dynamics of a sexually abusive relationship. (See Gardner, 3 Crim. Just, at 14; McCord, 77 J. Crim. L. & Criminology at 34-36; Serrato, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U.L. Rev. 155, 170-71 (1988).) Additionally, the behavior exhibited by sexually abused children is often contrary to what most adults would expect. (See Intrafamily Child Sexual Abuse, 34 U.C.L.A. L. Rev. at 203.) We therefore see no reason to withhold expert testimony from the jury explaining a child victim’s “unusual” behavior merely because the expert chooses to describe such behavior under a certain label.

Defendant argues, however, literature in the field of psychology does not recognize “child sexual abuse syndrome.” Our own research does not bear out defendant’s contention. It is true the syndrome is not listed in the Diagnostic and Statistical Manual of Mental Health III (D.S.M. III). This, however, is but one factor to consider in balancing the probative value of the testimony against possible prejudice to the defendant or confusion for the jury. Indeed, very few concepts are generally accepted by all behavioral scientists. (See McCord, 77 J. Crim. L. & Criminology at 24-34.) Similarly, the reality that many of the symptoms may be caused by factors other than sexual abuse goes only to the weight to be accorded such testimony, not its admissibility. (See, e.g., State v. Myers (Minn. 1984), 359 N.W.2d 604, 610-11.) The question really is not whether such testimony is admissible at all, but rather how much of it can be admitted and under what circumstances.

Turning to other jurisdictions’ handling of this question, from our research of the issue we note several approaches. At one extreme is the stand taken by Hawaii, which permits a psychologist to testify as to the credibility of the child victim’s testimony, if adequately supported by comprehensible testimony which a jury could evaluate itself, pertaining to the occurrence of the abuse and the identity of the offender. (See State v. Kim, (1982), 64 Hawaii 598, 607-10, 645 P.2d 1330, 1338-39. Contra State v. Moran (1986), 151 Ariz. 378, 382-83, 728 P.2d 248, 252-53; People v. Ortega (Colo. App. 1983), 672 P.2d 215, 218; State v. Lash (1985), 237 Kan. 384, 386, 699 P.2d 49, 51; State v. Keen (1983), 309 N.C. 158, 162-64, 305 S.E.2d 535, 537-38.) Other jurisdictions permit the expert to testify regarding the results of a psychological evaluation of the child and to determine whether the results of such an examination are consistent with those expected for a child victim subjected to sexual abuse. (See Kruse v. State (Fla. App. 1986), 483 So. 2d 1383, 1387-88; Myers, 359 N.W.2d at 609-10; In re Nicole V. (1987), 123 A.D.2d 97, 106-09, 510 N.Y.S.2d 567, 573-74, aff’d (1987), 71 N.Y.2d 112, 518 N.E.2d 914, 524 N.Y.S.2d 19; State v. Middleton (1983), 294 Or. 427, 432-38, 657 P.2d 1215, 1217-21. See also Allison v. Georgia (1987), 256 Ga. 851, 353 S.E.2d 805; State v. Snapp (1986), 110 Idaho 269, 715 P.2d 939; People v. Beckley (1987), 161 Mich. App. 120, 409 N.W.2d 759, aff’d (1990), 434 Mich. 691, 456 N.W.2d 391; State v. Maule (1983), 35 Wash. App. 287, 667 P.2d 96.) Still other approaches permit experts who have not evaluated the particular victim to present testimony pertaining to general behavior patterns and psychological symptoms associated with sexual abuse and then to apply such knowledge to either hypothetical facts presented or to facts admitted into evidence. Others restrict the expert’s testimony to a discussion of general principles only, thereby leaving the application of these principles to the trier of fact. (See State v. Moran (1986), 151 Ariz. 378, 384-86, 728 P.2d 248, 254-56; People v. Gray (1986), 187 Cal. App. 3d 213, 217-20, 231 Cal. Rptr. 658, 660-62; People v. Roscoe (1985), 168 Cal. App. 3d 1093, 1099-1100, 215 Cal. Rptr. 45, 49-50; Commonwealth v. Baldwin (1985), 348 Pa. Super. 368, 373-79, 502 A.2d 253, 255-57, disapproved of in part by Commonwealth v. Davis (1988), 518 Pa. 77, 541 A.2d 315 (error for expert to give opinion regarding credibility of child sexual abuse victims).) Many of these same jurisdictions also allow the expert to refer specifically to the term “child sexual abuse syndrome” or one of its variants in their testimony to the jury. (See People v. Gray (1986), 187 Cal. App. 3d 213, 231 Cal. Rptr. 658; Wheat v. State (Del. 1987), 527 A.2d 269; Allison v. State (1987), 256 Ga. 851, 353 S.E.2d 805; State v. Snapp (1986), 110 Idaho 269, 715 P.2d 939; State v. Carlson (Minn. App. 1985), 360 N.W.2d 442; People v. Grady (1986), 133 Misc. 2d 211, 506 N.Y.S.2d 922.) Those jurisdictions, on the other hand, which do not allow the use of child sexual abuse syndrome testimony

include Kentucky (see Bussey v. Commonwealth (Ky. 1985), 697 S.W.2d 139 (syndrome testimony immaterial to establishing defendant’s guilt)), Mississippi (see Hosford v. State (Miss. 1990), 560 So. 2d 163 (syndrome testimony not sanctioned but general testimony admissible especially when elicited in direct response to assault on credibility of victim)), Ohio (see State v. Davis (Ohio Ct. App. Dec. 29, 1989), No. CA88 — 09—017 (available on Westlaw 1989 W.L. 157206) (syndrome testimony impermissible because it has no scientific reliability and improperly bolsters uncorroborated victim’s testimony)) and Tennessee (see State v. Schimpf (Tenn. Crim. App. 1989), 782 S.W.2d 186 (syndrome testimony invades jury’s province as to credibility of victim)). (See also State v. Rimmasch (Utah 1989), 775 P.2d 388 (testimony concerning typical child abuse profile inherently unreliable).) This lack of uniformity among the various jurisdictions is not surprising; attempts to expand testimony into new fields often result in judicial confusion and inconsistency. (See Werner v. State (Tex. Crim. App. 1986), 711 S.W.2d 639, 649 (Teague, J., dissenting).) We should not, however, be unduly prejudiced against the introduction of expert testimony based upon a theory in its relative infancy. We therefore choose to follow the reasoning of the majority of the jurisdictions which fall in the middle of the extremes of absolute rejection as represented by Ohio and absolute acceptance to the point of vouching for the credibility of the victim as represented by Hawaii. This middle position ensures that the trier of fact will be informed as to the general characteristics exhibited by victims of child abuse, which often are inexplicable or conflicting, but at the same time will not invade the province of that same trier of fact in weighing the credibility of witnesses. The mere fact an expert’s testimony, if believed, tends to bolster the victim’s credibility does not make such evidence inadmissible. The testimony of one witness often corroborates or enhances that of another. The jury, however, is still free to disregard such evidence. (See Server, 148 Ill. App. 3d at 897, 499 N.E.2d at 1026; Roe, 40 U. Miami L. Rev. at 109.) Nor should we hold expert testimony inadmissible merely because it may include an ultimate issue to be decided by the trier of fact, i.e., whether the victim had indeed been abused. (See People v. Harp (1990), 193 Ill. App. 3d 838, 845-46, 550 N.E.2d 1163, 1168.) Medical experts traditionally have been allowed to testify on numerous issues ultimately to be decided by a jury. (See Kruse v. State, 483 So. 2d at 1387. Contra Allison v. State, 256 Ga. at 853, 353 S.E.2d at 808.) We also do not believe that by allowing such testimony we are encouraging a battle of experts any different than those commonly found in any case involving expert testimony. Again, the jury ultimately must choose which group of experts to believe. (See Serrato, 68 B.U.L. Rev. at 184.) This does not mean, however, we are wholeheartedly accepting child sexual abuse syndrome testimony under all circumstances. At this time, we choose to limit the admissibility of such testimony to rebuttal after the victim’s credibility has first been attacked. Under such circumstances, defendant’s own actions have necessitated the use of syndrome testimony, especially when defense counsel emphasizes some unusual aspect of the victim’s behavior such as recantation or delayed reporting. (See People v. Dunnahoo (1984), 152 Cal. App. 3d 561, 577, 199 Cal. Rptr. 796, 804; People v. Benjamin R. (1984), 103 A.D.2d 663, 669, 481 N.Y.S.2d 827, 832. See also Hosford, 560 So. 2d at 166 (even though syndrome testimony in general not allowed, expert allowed to explain victim’s behavior in response to assault on credibility). Cf People v. Bergschneider (1989), 211 Cal. App. 3d 144, 158-60, 259 Cal. Rptr. 219, 226-28 (prosecutor not limited to introducing expert testimony on rebuttal if misconceptions targeted during case in chief).) To prohibit syndrome testimony in these instances would, in effect, for example in the situation of recantation, allow powerful impeachment evidence to remain unrebutted when a plausible reason exists why the jury should not give such impeachment the same weight as most prior inconsistent statements. (See McCord, 77 J. Crim. L. & Criminology at 61-62.) At the same time, however, admission of syndrome testimony on rebuttal, even if believed, would not be dispositive of the case, thereby ensuring defendant a fair trial.

Turning back to the specifics of this case, we initially note section 115 — 7.2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2) provides:

“In a prosecution for an illegal sexual act perpetrated upon a victim, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, expert testimony by a behavioral psychologist, psychiatrist or physician relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.”

Effective January 1, 1989, the legislature amended this same section

to allow testimony from persons other than those in the medical field. (See Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2.) Such an amendment reiterates the legislature’s intention to grant the trial court broad discretion in the admission of evidence of post-traumatic syndromes from a qualified source. (See Kelly, 185 Ill. App. 3d at 51, 540 N.E.2d at 1130.) We believe such discretion is broad enough to include child sexual abuse syndrome testimony under the general label of post-traumatic stress syndrome. See Roy, 201 Ill. App. 3d at 180; Server, 148 Ill. App. 3d at 897-99, 499 N.E.2d at 1025-26.

Here, Dr. Hoffman, a psychologist and expert in the field of child abuse, was called to testify only in rebuttal for a very limited purpose after the victim’s credibility already had been attacked by defendant. She explained how children act when they have been sexually abused, how offenders act when they are trying to lure children into a situation where they may be sexually abused and how the characteristics displayed by this particular victim were consistent with those which could be expected to be displayed by a victim of sexual abuse. She made no reference on direct examination to the person who may have abused the victim, nor did she testify the victim was sexually abused or that the victim was telling the truth. She also did not include descriptions of the actual acts related to her by the victim. Any limited references to the victim’s description of the offense were properly offered to explain the reason for the victim’s behavior. She did not attempt to inform the jury whose credibility was paramount nor did she try to bolster the victim’s testimony. Moreover, she herself pointed out the lack of recognition of child sexual abuse syndrome in D.S.M. III. She further informed the jury of the possibility that the “unusual” behaviors she observed in the victim could have been triggered by factors other than sexual abuse. Finally, at the conclusion of her testimony, the court admonished the jury that her testimony was admitted “for the limited purpose of giving testimony regarding child sexual abuse syndrome.” In addition, the jury heard testimony by defendant’s expert disputing Dr. Hoffman’s knowledge and testimony concerning child sexual abuse syndrome. Under such circumstances, we cannot say the court abused its discretion in allowing the testimony of Dr. Hoffman, even though the court, upon reflection, later indicated perhaps such testimony should not have been allowed. See Ridgeway, 194 Ill. App. 3d 881, 551 N.E.2d 790; Server, 148 Ill. App. 3d 888, 499 N.E.2d 1019. See also Kelley, 185 Ill. App. 3d 43, 540 N.E.2d 1125. But see People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916 (error to allow expert to testify on characteristics of child abuse perpetrators).

Defendant argues, however, the expert went too far by diagnosing the victim as suffering from child sexual abuse syndrome. Defendant misses the point. While in general it may be true that it is not proper medically to diagnose the existence of a syndrome (see McCord, 77 J. Crim. L. & Criminology at 67; Expert Psychological Testimony, 42 U. Miami L. Rev. at 1046-48), any possible confusion or error here was prompted by defendant himself. On cross-examination, defendant specifically asked Dr. Hoffman if she had diagnosed the victim as having the characteristics of a sexually abused child. Any “vouching” for the credibility of the victim therefore resulted from defendant’s own trial tactics. Under such circumstances, defendant cannot be heard to complain on appeal with respect to any error he created or caused. See Harp, 193 Ill. App. 3d at 844, 550 N.E.2d at 1167. See also Douglas, 183 Ill. App. 3d at 257, 538 N.E.2d at 1345.

In light of all the testimony and evidence on the record before us, we believe the verdict of the jury was not so improbable that it had no reasonable basis. (See People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732.) Even though there were minor inconsistencies in the victim’s testimony, that testimony was certain regarding the offense and the manner in which it occurred. See Ridgeway, 194 Ill. App. 3d at 887, 551 N.E.2d at 793; Server, 148 Ill. App. 3d at 895, 499 N.E.2d at 1024. See also Douglas, 183 Ill. App. 3d at 251-53, 538 N.E.2d at 1341-42.

For the aforementioned reasons, we affirm the judgment of the circuit court of Jackson County.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.

      One commentator also notes that an expert testifying as to general facts obtained through the application of traditional research methods is not applying new scientific techniques but rather is testifying as to facts within either personal knowledge or contained in learned treatises reasonably relied upon by experts in the field. See Expert Psychological Testimony, 42 U. Miami L. Rev. at 1060. See also People v. Beckley (1990), 434 Mich. 691, 717-21, 456 N.W.2d 391, 402-04.

      We note the expert called to testify here, while not diagnosing the victim as suffering from post-traumatic stress, did state she could have justified such a diagnosis. The expert further stated a syndrome relating to sexually abused children would be included under post-traumatic stress syndrome.


author: JUSTICE CHAPMAN

text:
    POPATLAL PATEL et al., Plaintiffs-Appellees, v. PAMELA S. LACEY, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0262
    Opinion filed October 4, 1990.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, William F. Kopis, and Kathryn A. Spalding, of counsel), for appellant.
    Charles C. Hines and Charles Cavaness, both of Carbondale, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Pamela S. Lacey (Lacey), brings this interlocutory appeal pursuant to Supreme Court Rule 306 (107 Ill. 2d R. 306(a)(l)(iv)) from an order of the circuit court of Jackson County denying her motion to transfer venue from Jackson County to Franklin County. Lacey contends that no part of the transaction out of which the cause of action arose occurred in Jackson County.

Plaintiffs, Popatlal and Savita Patel (Patels), filed a complaint against Lacey, the escrow agent under a contract between the Patels and Frank Parrish (Parrish), alleging that Lacey breached a fiduciary duty owed to them. Lacey is an attorney with her office and residence located in Franklin County.

In August of 1981 the Patels and Parrish entered into a contract for the purchase and sale of real estate located in Jackson County, Illinois. A modification of this contract was drawn up by Lacey on behalf of Parrish and executed by the Patels and Parrish on February 26, 1988. The Patels signed this agreement in Jackson County.

This second agreement contained, among other things, a provision requiring the Patels to deliver a quitclaim deed to the property with Parrish named as grantee to an undesignated person as escrow agent. Additionally the agreement provided that if the Patels defaulted, Parrish could pursue various remedies, including:

(1) maintaining an action for possession under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1987, ch. 110, par. 9 — 101 et seq.), and

(2) directing the escrow agent holding the deed executed by the Patels to deliver said deed to Parrish.

Pursuant to the 1988 agreement, the Patels executed the quitclaim deed in Jackson County. After appointing Lacey as the escrow agent, Parrish delivered the deed to Lacey in Franklin County. Thereafter, Parrish declared the Patels in default under the contract terms and asked Lacey to deliver the deed to him. Lacey complied with this request, and Parrish then recorded the deed in Jackson County. The Patels instituted an action against Parrish to set aside the deed, and Parrish filed a forcible entry and detainer action against the Patels. Both actions were filed in Jackson County. The suits were consolidated and litigated with Lacey representing Parrish.

On January 23, 1989, the Patels filed a complaint against Lacey in Jackson County claiming that Lacey violated her fiduciary duties as escrow agent by, among other things:

1. preparing the modified contract without a provision requiring notice to the defaulting party;

2. acting as escrow for the deed she prepared as Parrish’s counsel without the Patels’ consent;

3. advising Parrish as to whether the Patels defaulted on the contract;

4. delivering the quitclaim deed to Parrish;

5. failing to give notice to the Patels of default before delivering the deed to Parrish;

6. advising Parrish to record the deed; and

7. representing Parrish in the litigation between the Patels and Parrish which took place in Jackson County.

The Patels do not allege that any of the activities listed in 1 through 6 occurred in Jackson County.

Lacey moved to transfer venue from Jackson to Franklin County. The trial court denied her motion and she appealed. The issue presented on this appeal is whether the trial court erred in finding that some part of the transaction out of which the cause of action arose occurred in Jackson County.

Venue is properly fixed in the county of residence of any defendant joined in good faith or in the county in which the transaction or some part thereof occurred out of which the cause of action arose. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101.) A defendant moving to transfer venue must prove that the plaintiff’s selection of venue was improper. (Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 285, 507 N.E.2d 838.) In addition, venue may properly lie in more than one jurisdiction. ServiceMaster Co. v. Mary Thompson Hospital (1988), 177 Ill. App. 3d 885, 532 N.E.2d 1009.

Lacey in essence contends that the term “transaction” used in section 2 — 101 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101(2)) should be narrowly construed. Lacey argues that if there was a breach of duty it occurred in Franklin County and therefore venue elsewhere is improper. She contends that, in this tort action, the fact that the contract was entered into between the Patels and Parrish in Jackson County is irrelevant for venue purposes. We disagree.

In People ex rel. Carpentier v. Lange (1956), 8 Ill. 2d 437, 134 N.E.2d 266, the court when considering the “transaction” phrase of what is now section 2 — 101 (Ill. Rev. Stat. 1987, ch. 110, par. 2— 101(2)) stated:

“[T]he italicized phrase of the section has been interpreted to mean that, for purposes of venue, the places where the transaction, or a part thereof, occurred out of which the cause of action arose include *** where matters occurred that plaintiff has the burden of proving.” Carpentier, 8 Ill. 2d at 441, 134 N.E.2d at 267-68.

In addition, in Schmelzle v. Transportation Investment Corp. (1950), 341 Ill. App. 639, 94 N.E.2d 682, the court stated:

“In the instant case plaintiff and defendant had no personal or direct dealings in any county, however, certain acts, which were integral parts of plaintiff’s cause of action, and which he would have to establish in order to assert any right on the instrument, occurred in Freeport, in Stephenson County. *** Under these circumstances, it would appear that a substantial part of the ‘transaction’ out of which plaintiff’s individual cause of action arose, did occur in Stephenson County, hence it was not error for the circuit court to deny the motion for change of venue.” (Schmelzle, 341 Ill. App. at 642, 94 N.E.2d at 683.)

From an examination of Lacey’s brief, it appears that she agrees with the above statement of law; however, she asserts that all acts which comprise the elements of the Patels’ cause of action occurred in Franklin County.

An escrow agent has a duty to act impartially toward all parties. (Comtrade, Inc. v. First National Bank (1986), 146 Ill. App. 3d 1069, 497 N.E.2d 527.) However, logic dictates that there can be no duty to act impartially unless there is in fact an escrow relationship. Therefore, in order to eventually prevail on the merits of this case, the Patels must prove, among other things, that an escrow relationship existed which created a duty. In addition, they will obviously have to prove that a breach of said duty occurred.

In this case the escrow relationship and the corresponding duty to act impartially were created by the execution of the 1988 contract in Jackson County. Lacey contends that she was appointed escrow agent by Parrish in Franklin County and therefore no part of the transaction took place in Jackson County. This overlooks the fact that the Patels were also involved in the transaction. In Consolidated Gasoline Co. v. Lexow (1942), 316 Ill. App. 257, 44 N.E.2d 927, the court was faced with a situation where one party signed a lease in St. Clair County and the other party signed in Madison County. In reversing the trial court’s decision that venue in St. Clair County was improper, it stated:

“If one party to the lease signed in Madison County and another party thereto signed in St. Clair [C]ounty, certainly the transaction would occur partly in one and partly in the other.” Lexow, 316 Ill. App. at 260, 44 N.E.2d at 928.

In this case the Patels signed the agreement creating the escrow relationship in Jackson County. The fact that Lacey was in Franklin County when she was appointed escrow agent indicates only that Franklin County may also be a proper venue. It does not prove that Jackson County is improper.

In addition, we note that Lacey’s representation of Parrish in the Jackson County litigation was also an event integral to the Patels’ cause of action. (Sehmelze v. Transportation Investment Corp. (1950), 341 Ill. App. 639, 94 N.E.2d 682.) This fact has a direct bearing on whether or not Lacey breached her fiduciary duty to act impartially. We are of the opinion that part of the transaction occurred in Jackson County, and therefore the trial court’s denial of Lacey’s motion to transfer venue was proper.

Affirmed.

WELCH and RARICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALMA McLEMORE, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0494
    Opinion filed October 9, 1990.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Alma McLemore was convicted by a jury of failing to report to a penal institution and possession of a controlled substance with the intent to deliver. The trial court granted her motion for a new trial on the first charge. The State subsequently moved to nol-pros that charge, and the court allowed the motion on September 2, 1988. Defendant was fined $330 and was sentenced to 12 years in the Department of Corrections on the possession with intent to deliver with the sentence to be served consecutively to the sentence she was already serving.

Defendant raises five issues on appeal:

1. Whether the State failed to prove the defendant guilty beyond a reasonable doubt of possession of a controlled substance with the intent to deliver, because it failed to prove that defendant knew the substance was cocaine or that she had the intent to deliver.

2. Whether the defendant was denied the effective assistance of counsel when trial counsel failed to move to sever the charges, did not object to irrelevant evidence, and did not object to the State’s improper closing argument.

3. Whether a sentence of 12 years’ incarceration is excessive since it fails to reflect the defendant’s drug and alcohol abuse problems, and no proper aggravating factors support the sentence.

4. Whether the street value fine must be vacated because the evidence was insufficient to establish the value of the substance in question in this case.

5. Whether the defendant is entitled to credit of 146 days against her sentence for time spent in custody while awaiting trial.

In view of the trial court’s disposition of the failure to report charge, the evidence relating to it will be discussed only briefly, but a more complete recitation of the evidence on the second charge is necessary since the defendant claims the State failed to prove her guilt beyond a reasonable doubt.

Shortly after noon on February 17, 1988, Trooper David Crackle stopped a car containing the defendant and three young males on Interstate Highway 57 at approximately milepost 134, which is near Farina in Fayette County. Trooper Crackle stopped the car because of a radio dispatch he had received concerning the defendant’s failure to appear at a penal institution. After backup officers arrived, the defendant was arrested and handcuffed. Trooper Marla Sapp conducted a pat-down search of the defendant during which the defendant leaned over the hood of the squad car. Four or five $100 bills were found on defendant during this search. The defendant testified that she leaned over the car during the search because she was hyperventilating due to an angina problem and that Trooper Sapp told her it was all right to do so. Trooper Sapp denied that she gave the defendant permission to lean over the car and testified that she had instead told the defendant to stand up so that she could be searched. After the search the defendant requested permission to lie on the ground and this was granted. She lay on the ground on her left side for approximately 10 or 15 minutes and was then placed in the police car. While sitting in the police car the defendant asked the troopers to check her handcuffs because they were too tight. While Trooper Sapp was checking the handcuffs, she found a Newport cigarette box with no top in the left front pocket of the defendant’s bluejean vest. Trooper Sapp examined the cigarette box and found 15 packets containing a white substance. The packets were subsequently analyzed and found to contain a total of 3.3 grams (approximately one-eighth ounce) of cocaine. Defendant testified that she smoked Kool cigarettes and that one of the other occupants of the car, Darrell Williamson, had given her the Newport box during the trip. She also stated that she had placed the Newport box in her vest pocket without looking at it and she had no knowledge that it contained cocaine.

Vergil Derrick Carson, another occupant of the car, testified that he had seen Darrell Williamson with a Newport cigarette pack before they started their trip although he did not actually see Williamson give the Newport box to defendant.

The defendant first argues that the State failed to prove her guilty beyond a reasonable doubt of either possession of cocaine or of possession with the intent to deliver the cocaine. We have examined the record and find that the evidence supports the jury’s finding of guilt of possession, but we further find that the State failed to prove intent to deliver. The evidence established that the defendant had 3.3 grams of cocaine on her person, which establishes possession. (People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.) While defendant denied any knowledge that there was cocaine in the Newport box, the jury was not required to accept her testimony. (People v. Lahori (1973), 13 Ill. App. 3d 572, 300 N.E.2d 761.) Knowledge regarding possession may be proved by circumstantial evidence. (People v. McNeely (1981), 99 Ill. App. 3d 1021, 426 N.E.2d 296.) Circumstantial evidence of knowledge was presented by the witnesses who testified that defendant leaned over the squad car during the pat-down search and lay down on her left side (the cocaine was in her left vest pocket) following the search. This testimony when coupled with the fact that defendant carried cocaine on her person in an open Newport cigarette box is sufficient to meet the State’s burden of proof on possession.

With regard to the attempt to deliver, however, the only “evidence” was supplied by the prosecutor during his closing argument:

“Fifteen packets is a little more than is used for a personal consumption.
* * *
It’s too much for personal consumption from the period that she says she has to turn herself back in at 6 o’clock, she can’t consume 15 packets of cocaine in that short a time in a six hour period and on the other hand she knew she was going to jail, she’s not going to take it into jail with her so she is going to be giving it to somebody. She possessed that with the intent to deliver that to somebody.”

We have examined this record, and there is no evidence to support the statement that the amount was greater than would be used for personal consumption. The State argues that the fact that there were 15 individually wrapped packages and that the defendant had either four or five $100 bills on her person would allow an inference of intent to deliver to be drawn, citing People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178, and People v. Munoz (1982), 103 Ill. App. 3d 1080, 432 N.E.2d 370. We point out that the amounts of illegal substances and cash involved in both of those cases were significantly greater than are involved here. Our own nonexhaustive review of other cases in Illinois reveals that all of them involved significantly greater amounts of either drugs, cash, guns or other paraphernalia. People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538 (13.88 grams of cocaine, various types of drug paraphernalia, a gun, other drugs, and $600); People v. Chrisos (1986), 151 Ill. App. 3d 142, 502 N.E.2d 1158 (90 grams of cocaine, other drugs and $4,650 in cash); People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082 (364 grams of cannabis and 638 grams of POP); People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659 (350 pills located in the trunk of the car and scattered on the front seat of the car, $90 in cash, and the police had seen known drug users approach the car and exchanges take place); People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282 (350 grams of cocaine, other drugs and several guns); People v. Atencia (1983), 113 Ill. App. 3d 247, 446 N.E.2d 1243 (over 3,906 grams of cocaine and $26,900 in cash); People v. Romero (1989), 189 Ill. App. 3d 749, 546 N.E.2d 7 (36.9 grams of cocaine, some marijuana, $2,900 in cash and chemicals used to cut or adulterate cocaine); People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409 (69.5 grams of cocaine, 333.2 grams of cannabis and $2,480 in cash); People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428 (21.9 grams of cocaine, 578.8 grams of cannabis, several guns and various types of drug paraphernalia); People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46 (4.55 grams of cocaine, 13.74 grams of LSD, 6,443.33 grams of marijuana, rollers for 3,200 joints and $5,650 in cash).

This court has no knowledge of what amount of cocaine might be consumed for personal use during the approximately six-hour interval arguably involved in this case. It may be that 3.3 grams are considerably more than could have been consumed by defendant during that interval, and if the State had introduced evidence to that effect, then the conviction could be affirmed, but the State did not.

The U.S. Supreme Court has discussed this issue in a slightly different context and stated:

“Would the jury automatically and unequivocally know that Turner was distributing cocaine simply from the fact that he had 14.68 grams of a cocaine and sugar mixture? True, his possession of heroin proved he was dealing in drugs, but having a small quantity of a cocaine and sugar mixture is itself consistent with Turner’s possessing the cocaine not for sale but exclusively for his personal use.” Turner v. United States (1970), 396 U.S. 398, 423, 24 L. Ed. 2d 610, 627, 90 S. Ct. 642, 655-56.

We therefore reverse the conviction for possession with intent to deliver, and pursuant to our authority under Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)), we reduce the degree of the offense, enter judgment for the lesser offense of possession of a controlled substance (cocaine), and remand for a new sentencing on the conviction for possession of cocaine. While we have reversed the conviction on possession with intent to deliver, it is still necessary for us to discuss other issues raised by the defendant.

The defendant’s claim of ineffective assistance of counsel is based on trial counsel’s failure to request a severance of the charges, failure to object to irrelevant evidence, and failure to object during the State’s closing argument.

In order to prevail on the claim of ineffective assistance of counsel the defendant must show both that counsel’s representation fell below an objective standpoint of reasonableness and that there was a reasonable probability that the result would have been different if the motion to sever had been filed. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The granting of a severance is a matter addressed to the sound discretion of the trial court. (People v. Marbley (1975), 34 Ill. App. 3d 434, 340 N.E.2d 247.) The joinder of the charges was reasonable since the testimony of the arresting officers was applicable to both defenses and to require an additional trial would have been judicially inefficient. While it would have been an easy matter for counsel to have filed a motion for severance, the defendant has not established that there was any reasonable probability that the result would have been different under the circumstances of this case.

The allegedly irrelevant evidence which was not objected to by trial counsel consisted of references to the $100 bills found on the defendant and the cross-examination of Carson about his given name. We have examined the record and conclude that the evidence of the cash was properly admitted (People v. Tovar (1988), 169 Ill. App. 3d 906, 523 N.E.2d 1178), and that the cross-examination of Carson was not unwarranted under the circumstances. Therefore, the defendant’s contention of ineffective assistance of counsel on this basis is unpersuasive.

The defendant’s final contention of ineffective assistance is based on the counsel’s failure to object to the closing argument of the prosecutor which is set forth earlier in this opinion. The failure to object to the unsupported argument is more troublesome, but we need not further discuss this isolated failure in view of our decision on the lack of proof with intent to deliver.

Defendant’s next claim of error is that the 12-year sentence was excessive. In view of the fact that we remand for resentencing based on the failure of the State to establish intent to deliver, this issue is moot.

With regard to the defendant’s argument that the evidence with regard to the street value of the cocaine was insufficient, we find that this issue was waived by the defendant’s failure to object at trial. People v. Carraro (1979), 77 Ill. 2d 75, 394 N.E.2d 1194.

The defendant’s last contention is that she is entitled to 146 days’ credit against her sentence for the period from February 17, 1988 (date of arrest on this offense), to August 11, 1988 (date of sentencing on this offense), relying upon People v. Higgerson (1987), 157 Ill. App. 3d 564, 510 N.E.2d 574. The State requests that we overrule Higgerson. We find Higgerson distinguishable under the facts of this case. First, two different counties were involved. (People v. Wiseman (1990), 195 Ill. App. 3d 1062, 553 N.E.2d 46.) Second, this case involves the imposition of a consecutive sentence. (People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777; People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) We find that defendant is not entitled to credit for time served in the Department of Corrections for the 146 days claimed.

The defendant’s conviction for possession with intent to deliver is reversed, the degree of the offense is reduced, judgment is entered for the offense of possession of a controlled substance (cocaine), and this cause is remanded to the trial court for sentencing on the defendant’s conviction of possession of cocaine. Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)); People v. Jackson (1989), 181 Ill. App. 3d 1048, 537 N.E.2d 1054.

Reversed, reduced and remanded with directions.

RARICK and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RUSTY L. SOWERS, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0813
    Opinion filed October 10, 1990.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The State appeals from a judgment of the circuit court of Effing-ham County granting defendant’s petition to rescind the statutory summary suspension of his license. Defendant has not filed a brief with this court. We proceed to address the merits of the State’s appeal. Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 472 N.E.2d 1228.

On October 6, 1988, defendant was arrested and charged by a verified complaint with driving under the influence of alcohol (DUI) (111. Rev. Stat. 1987, ch. 95^2, par. ll-501(a)(2)). A blood-alcohol test was requested by the arresting officer pursuant to section 11— 501.1(a) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1(a)). Defendant, after refusing to take the test, was given immediate notice by the arresting officer of the statutory suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1(f).) Confirmation of statutory summary suspension of driving privileges was sent to defendant by the Secretary of State stating that defendant’s suspension would begin on November 21, 1988, and end on November 21, 1989. Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.l(i).

Defendant’s first court date was set for November 7, 1988. On November 3, 1988, the defendant filed a petition for a summary suspension hearing pursuant to section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1). On December 9, 1988, the defendant filed a motion to rescind the statutory summary suspension based on the court’s failure to hold a rescission hearing within 30 days of defendant’s November 3, 1988, request for a hearing, as required under section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1). The motion was heard on December 12, 1988, and on December 13, 1988, defendant’s motion was granted. It is from this order that the State appeals.

The sole issue presented on appeal is whether the defendant’s statutory right to a hearing within 30 days begins to run upon the mere filing with the clerk of the circuit court of a petition for a rescission hearing. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) We are of the opinion that it does not, and we therefore reverse.

This very issue was discussed in People v. Grange (1989), 181 Ill.

App. 3d 981, 537 N.E.2d 1153. In that case the defendant filed his petition with the circuit clerk; however, he made no attempt to have the motion set for hearing. In reversing, the court stated, “the mere filing with the circuit court clerk of a petition requesting a hearing does not start the running of the 30-day time period in which a hearing is to be held but that, to be sufficient, such a request for a hearing must be brought to the attention of the court so that a hearing date can be set.” People v. Grange (1989), 181 Ill. App. 3d 981, 987, 537 N.E.2d 1153,1157.

In this case, as in People v. Grange, the defendant made no attempt to have his motion set for a hearing date. It is clear from the foregoing that the defendant must, at the very least, make an attempt to have his motion heard. Therefore we hold that the trial court erred in ordering defendant’s statutory summary suspension rescinded for failure to hold a hearing within 30 days because the 30-day period did not begin to run until defendant made a request to the court for a hearing. Since the request did not occur until December 9, 1988, the trial court erred in allowing the defendant’s motion to rescind the summary suspension on December 13,1988.

We note that In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, the case relied on by the trial court, is distinguishable from this case. In In re Trainor the defendant filed his petition and attempted to have his motion set for hearing. However, the hearing was not held within 30 days of this attempt. Trainor is not controlling under the facts of this case. This defendant made no attempt to have his motion heard. We therefore reverse the judgment of the circuit court and remand the cause for further proceedings.

Reversed and remanded.

GOLDENHERSH and RARICK, JJ., concur.