author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALLEN, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 87—3256
    Opinion filed September 30, 1991.
    — Modified on denial of rehearing November 26, 1991.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

On July 3, 1985, defendant was convicted of the murder of Carl Gibson and sentenced to a term of natural life imprisonment. While defendant’s conviction in that case was pending on appeal in this court, Detective Michael Pochordo, who had been in frequent contact with defendant in investigating the case, arranged to see defendant in the Stateville penitentiary, where he had been serving his sentence.

Pochordo testified as follows: After advising defendant of his Miranda rights, he informed him that he had certain information linking defendant to the murder of Robert Ciralski, which had occurred in August of 1984. Defendant acknowledged the Miranda warnings and responded that Pochordo’s information was “basically correct,” that he and one Griffin were involved in the Gibson “contract” murder, that Griffin shot Ciralski, and that the motive for the assassination was that the victim had cut back on quinine sales to drug dealers. Defendant also implicated two other men besides Griffin in the planning of the murder, but he told Pochordo that he would have to think over whether he would provide any more details because he was concerned about his own safety and that of his family.

A few days later, defendant phoned Pochordo and arranged for another meeting with him at the Stateville prison. Pochordo was accompanied to this meeting by Richard Bueke, an assistant State’s Attorney. In response to defendant’s query, Bueke told him of the results of their investigation and their belief as to his involvement in the Ciralski killing.

Defendant agreed to talk to Bueke and Pochordo, and after he was given his Miranda warnings, he went into considerable incriminating detail, not only with respect to the Ciralski murder, but the Gibson case as well, again implicating others and himself in both crimes. After some protracted negotiations, defendant offered to cooperate in the prosecution of the Ciralski murder on condition that he be given immunity, but Bueke promised only to recommend a natural life sentence to run concurrently with the one he was given in the Gibson case, in exchange for his testimony before the grand jury and at trial. Defendant accepted the offer.

Defendant and his codefendant, Franklin Freeman, were tried separately for the Ciralski murder; however, prior to trial, defendant recanted his grand jury testimony. The oral statements defendant made to Bueke, Pochordo and other officials, and the transcript of his testimony before the grand jury, were used as evidence against him, all without objection on his part. In testifying in his own behalf, defendant denied that he was involved in the Ciralski murder, disavowed giving Pochordo any information at their first meeting in the Stateville penitentiary, insisted that he lied to Bueke at Pochordo’s instigation, contended that the testimony that he gave before the grand jury was based on lies fed to him by Pochordo and Bueke, who had coached him, and maintained that he had no intention of pleading guilty to another natural life sentence.

The jury returned a verdict of guilty on three counts of murder, one count of conspiracy to commit murder, and another of armed robbery. Having found that the three counts of murder merged into one and that the armed robbery verdict also merged into the murder charge, the circuit judge imposed the mandatory natural life sentence for murder, to run concurrently with the one of 40 years for conspiracy, both sentences to run consecutive to a sentence of natural life which defendant was serving on the earlier murder conviction. Defendant appeals.

Defendant claims that he was denied the effective assistance of counsel when his trial attorney failed to move to suppress the statements obtained from him by the State while he was in jail after having been convicted of another offense, and while his appeal from that conviction was pending, in the absence of the attorney who was representing him in that appeal. Defendant relies upon a number of Illinois cases, among them, People v. Bernasco (1990), 138 Ill. 2d 349, and People v. Hicks (1989), 132 Ill. 2d 488. Defendant concedes that McNeil v. Wisconsin (1991), 501 U.S. _, 115 L. Ed. 2d 158, 111 S. Ct. 2204, decided while the instant appeal was pending, denies him any relief under the United States Constitution. McNeil held that an accused’s invocation of his sixth amendment right to counsel as to a charged offense does not serve as an assertion of his fifth amendment Miranda right to have counsel present during custodial interrogation on crimes with which he has not yet been charged.

Defendant contends, however, that “Illinois law is more protective of his right against self-incrimination than is the federal line of cases starting with the Miranda decision.” We cannot agree. Instead, we choose to follow McNeil, for we discern no reasonable basis for holding that an accused’s invocation, “[i]n [a] criminal prosecution[ ],” of his “right to appear and defend in person and by counsel” (Ill. Const. 1970, art. I, §8) metamorphoses as well into an unarticulated invocation of his right not to “be compelled in [another, but unrelated] criminal case to give evidence against himself.” (Ill. Const. 1970, art. I, §10.) As in Strickland v. Washington (1984), 466 U.S. 668, 700, 80 L. Ed. 2d 674, 702, 104 S. Ct. 2052, 2071, “[failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure.”

Defendant further complains that he was also denied effective assistance of counsel when his attorney failed to object to testimony and the prosecutor’s statements that he had committed previous crimes, including the State’s eliciting from defendant that he was convicted of the Gibson murder and had earlier been convicted of the murder of a police officer. Defendant also argues that his counsel improperly allowed him to testify that he had committed intimidation over 10 years before, despite the fact that there was no record of his commission of such a crime in the presentence investigation report. Defendant maintains that these offenses were admitted into evidence merely to show his propensity to commit crime. Assuming, however, without deciding, that the trial court erred, we hold any such error to be harmless, considering the enormously damning evidence presented against him. People v. Nevitt (1990), 135 Ill. 2d 423, 448.

Defendant next argues that he was erroneously convicted of three counts of murder, even though his murder conviction arose from one act. However, as noted earlier, the record indefeasibly reflects that the three counts were merged into one, and that judgment was entered only on the one count. We hold, therefore, that there was no error committed in merging the three counts. See People v. Matthews (1990), 205 Ill. App. 3d 371, 418.

The State agrees with defendant’s final contention that he should not have been convicted of both conspiracy and murder. Conspiracy is the inchoate offense; murder is the principal one; and Illinois law does not permit the State to sentence a defendant for both. (People v. Allen (1989), 184 Ill. App. 3d 438, 453; Ill. Rev. Stat. 1985, ch. 38, par. 8 — 5.) The 40-year sentence for conspiracy was to run concurrent to the life term for murder. Defendant maintains that there should be a new sentencing hearing and that the three counts of murder which were merged into one should be vacated.

There is no indication in the record that the conspiracy conviction influenced that for murder. On the contrary, there were separate concurrent sentences imposed for the two counts, and because the record unmistakably reflects that the sentences were independent, there is no need for a new sentencing hearing. (People v. Kite (1990), 204 Ill. App. 3d 955, 960; People v. Atkins (1987) 161 Ill. App. 3d 600, 611-12.) Therefore, we vacate the conviction and sentence for conspiracy.

For all of the foregoing reasons, defendant’s conviction and sentence for conspiracy are vacated and in all other respects the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.

       Although Judge Hartman did not participate in the oral argument had in this case, he has read the briefs, and memoranda filed herein, audited the tape made at oral argument, and has otherwise participated in the decision-making process.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    EUGENE MEYER, Plaintiff-Appellant, v. THE BOARD OF MANAGERS OF HARBOR HOUSE CONDOMINIUM ASSOCIATION, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 89—3456
    Opinion filed October 18, 1991.
    — Rehearing denied December 9, 1991.

      Steven Messner, of Wilmette, and Ellis Levin, of Lamet, Kanwit & Associates, of Chicago, for appellant.
    Barry B. Nekritz and Phillip J. Zisook, both of Altheimer & Gray, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Eugene Meyer, appeals from summary judgment entered in favor of defendant, the Board of Managers of Harbor House Condominium Association (Association), on count V of his amended complaint which alleged he was denied the statutory right to examine the Association’s records. We consider: (1) whether plaintiff, as a unit owner, had a right to examine the Association’s delinquency reports, which listed unit owners who did not pay their assessments, and itemized bills for legal services under section 19 of the Condominium Property Act (Ill. Rev. Stat. 1989, ch. 30, par. 319); and (2) whether the Association complied with section 19 when it required plaintiff to obtain its records from the doorman of the building rather than in its office. For the following reasons, we reverse and remand.

In count V of his amended complaint, plaintiff alleged that, as the owner of a condominium unit governed by the Association, he made numerous requests to inspect a variety of the Association’s records, including some he identified as “delinquency reports” and “legal detailed breakdowns.” Plaintiff alleged that the Association denied the requests violating section 19 (Ill. Rev. Stat. 1989, ch. 30, par. 319), which allows a unit owner to examine a condominium association’s records. He sought a preliminary injunction to order the Association to supply him with the requested records and reimburse him for costs of the suit.

After the Association answered the complaint and some discovery was completed, both plaintiff and the Association moved for summary judgment on count V.

In an affidavit supporting his motion for summary judgment, plaintiff stated that the Association did not allow him to examine the delinquency reports and legal invoices.

In support of its motion for summary judgment, the Association relied on the affidavit of Joey Buchanan, the building manager who maintained the Association’s records. Buchanan stated that plaintiff was not allowed to examine the delinquency reports, which included the names of unit owners who did not pay their assessments, because it would have violated their right to privacy. Further, plaintiff was not allowed to examine legal invoices because they did not pertain to the common elements, they related to plaintiff’s litigation against the Association, and they were subject to the attorney-client privilege. Instead of allowing plaintiff to obtain the remaining records he requested in the Association’s office, it required him to receive the records from the doorman of the building because plaintiff had previously been abusive to the office personnel.

After a hearing, the trial judge stated that plaintiff was not entitled to the delinquency reports or the itemized bills for legal services; however, he did not rule on the motions for summary judgment and, instead, continued the hearing to another date.

Plaintiff filed a petition to reconsider, although an order was not yet entered on the summary judgment motions, relying on his two supplemental affidavits. He stated that before he filed the present lawsuit, the Association allowed him to examine delinquency reports and “detailed breakdowns] of legal invoices.” He further stated that he was informed that the Association allowed several unit owners to accumulate a substantial amount of unpaid assessments, it was paying an excessive hourly rate for attorney fees, and it incurred attorney fees to pursue a claim which were higher than the claim itself. Plaintiff also denied he was abusive to the personnel in the Association's office.

In response to the petition to reconsider, the Association relied on Buchanan’s supplemental affidavit in which he stated that, although plaintiff was not allowed to examine certain records, he was allowed to examine general records stating the total amount of delinquent assessments and legal bills. He also asserted that only four unit owners, out of 278, were delinquent in their payment of assessments and that if an owner did not pay his assessments for two months, it was the Association’s practice to refer the matter to its attorneys. Further, the Association discontinued legal action against a former commercial tenant when the attorney fees it incurred approached the amount of the claim.

In a reply brief, plaintiff filed a fourth affidavit and stated that, based on a document obtained from the Association, it failed to collect unpaid assessments from three unit owners who owed a total of approximately $40,000. Also, the Association sent a memo to unit owners stating that, as a result of plaintiffs lawsuits, it incurred approximately $35,000 in attorney fees which plaintiff believed was incorrect.

Another hearing was held on the motions for summary judgment. The trial judge based his ruling on the finding that, as a matter of law, plaintiff was not entitled to examine the records he requested from the Association. The unit owners’ privacy rights precluded plaintiff from examining the delinquency reports, which listed the names and unit numbers of owners who did not pay their assessments, the amount due, and any collection efforts. Also, the itemized bills for legal services, listing the attorney’s name, the amount of time spent, and a description of the legal services provided, were subject to the attorney-client privilege and would not be disclosed to plaintiff. As a result, plaintiff’s motion for summary judgment and his petition to reconsider were denied and the Association’s motion for summary judgment was granted. The judge also found that the Association did not violate section 19 and it was not unreasonable to require plaintiff to obtain the remaining records he requested from the doorman.

Plaintiff now appeals.

Opinion

Summary judgment should be granted if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

As a preliminary matter, the Association contends that plaintiff’s affidavits filed in support of his petition to reconsider should not be considered on appeal because they contained information which should have been included in his first affidavit. However, plaintiff’s petition to reconsider was filed when the motions for summary judgment were still pending. Because a party opposing summary judgment may file affidavits prior to or at the time of the hearing on the motion (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)), plaintiff’s affidavits, as well as the Association’s affidavit, filed prior to the last hearing on the motions will be considered.

On appeal, plaintiff argues that summary judgment was improperly entered in the Association’s favor because he had a right to examine the delinquency reports and the itemized bills for legal services under section 19(a) of the Condominium Property Act (Ill. Rev. Stat. 1989, ch. 30, par. 319(a)). The Association responds that the records plaintiff requested are not subject to his right to inspect because they are not specifically enumerated in the section.

Section 19(a) requires a condominium association to maintain certain records available for the unit owners’ examination listing several categories of records, such as the declaration, bylaws, and minutes of meetings.

Plaintiff first contends that delinquency reports and itemized bills for legal services are included in subsection (2) of section 19(a), which states:

“(2) Detailed accurate records in chronological order of the receipts and expenditures affecting the common elements, specifying and itemizing the maintenance and repair expenses of the common elements and any other expenses incurred, and copies of all contracts, leases, or other agreements entered into by the association shall be maintained.” Ill. Rev. Stat. 1989, ch. 30, par. 319(a)(2).

The language used in subsection (2) only refers to the common elements, which are defined as “all portions of the property except the units.” (Ill. Rev. Stat. 1989, ch. 30, par. 302(e).) Although there is a reference to “any other expenses incurred,” it appears that phrase is limited by the language that preceded it which refers to maintenance and repair of the common elements. Therefore, neither the delinquency reports nor the itemized bills for legal services that plaintiff requested are subject to examination under subsection (2) because they do not relate to the common elements.

Plaintiff also argues that the delinquency reports and the itemized bills for legal services fall under subsection (5) of section 19(a), which states:

“(5) Such other records of the association as are available for inspection by members of a not-for-profit corporation pursuant to Section 107.75 of the General Not For Profit Corporation Act of 1986 [“Not For Profit Corporation Act”] *** shall be maintained.” (Ill. Rev. Stat. 1989, ch. 30, par. 319(a)(5).)

Section 107.75 of the Not For Profit Corporation Act provides:

“Each corporation shall keep correct and complete books and records of account ***; and shall keep at its registered office or principal office a record giving the names and addresses of its members entitled to vote. All books and records of a corporation may be inspected by any member entitled to vote, or that member’s agent or attorney, for any proper purpose at any reasonable time.” (Ill. Rev. Stat. 1989, ch. 32, par. 107.75.)

The shareholder has the burden to establish he has a proper purpose to inspect the corporation’s records. (Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 373 N.E.2d 421.) A proper purpose is shown when a shareholder has an honest motive, is acting in good faith, and is not proceeding for vexatious or speculative reasons (Weigel, 57 Ill. App. 3d 1017, 373 N.E.2d 421); however, the purpose must be lawful in character and not contrary to the interests of the corporation (Sawers v. American Phenolic Corp. (1949), 404 Ill. 440, 89 N.E.2d 374). A proper purpose is one that seeks to protect the interests of the corporation and the shareholder seeking the information. (Weigel, 57 Ill. App. 3d 1017, 373 N.E.2d 421.) This court has previously recognized that a shareholder’s right to inspect a corporation’s books and records must be balanced against the needs of the corporation depending on the facts of the case. (National Consumers Union v. National Tea Co. (1973), 14 Ill. App. 3d 186, 302 N.E.2d 118.) Proof of actual mismanagement is not required; a good-faith fear of mismanagement is sufficient to show proper purpose. Weigel, 57 Ill. App. 3d 1017, 373 N.E.2d 421.

The shareholder is not required to establish a proper purpose for each record he requests. (Weigel, 57 Ill. App. 3d 1017, 373 N.E.2d 421.) “Once that purpose has been established, the shareholder’s right [to inspect] extends to all books and records necessary to make an intelligent and searching investigation *** [and] ‘from which he can derive any information that will enable him to better protect his interests.’ ” Weigel, 57 Ill. App. 3d at 1027, 373 N.E.2d at 428, quoting 5 W. Fletcher, Private Corporations §2239, at 779 (1976).

The references in section 107.75, incorporated in subsection (5) of section 19, to “complete books and records of account” and “all books and records” grant a unit owner access to a broad range of an association’s records; however, the access is limited to a showing of proper purpose. (Ill. Rev. Stat. 1989, ch. 32, par. 107.75.) Once the purpose is established, the unit owner may examine necessary books and records. In this case, both the delinquency reports and the itemized bills for legal services, which pertain to the financial matters of the Association, can be described as books and records of account and may be subject to plaintiff’s examination on a showing of proper purpose.

In his affidavits, plaintiff stated that the Association was not collecting assessments from delinquent unit owners and that the Association was incurring excessive attorney fees. These statements established a good-faith fear that the Association was mismanaging its financial matters, which was a proper purpose to inspect the Association’s records.

In response to plaintiff’s asserted purpose, the Association stated in its affidavits that disclosure of the delinquency reports would violate the privacy rights of the unit owners. However, this claim was insufficient because the Association does not contend that it can assert a claim for invasion of privacy on behalf of the owners and it does not show that plaintiff’s purpose was improper. The Association also stated that it properly managed the collection of delinquent assessments, but this claim did not address plaintiff’s right to examine the records to make that determination for himself as allowed under section 19. As a result, the Association did not contradict, by affidavit, plaintiff’s proper purpose to examine the delinquency reports.

However, as to the itemized bills for legal services, the Association responded that, despite plaintiff’s asserted purpose, the bills related to plaintiff’s lawsuits pending against the Association and would disclose attorney-client privilege. The fact that a shareholder has a lawsuit pending against the corporation does not alone affect the right to an inspection or show improper purpose. (5A W. Fletcher, Private Corporations §2225, at 379 (perm. ed. 1987).) Similarly, the Association’s claim of privilege did not automatically defeat plaintiff’s assertion of proper purpose, especially on a motion for summary judgment. Although plaintiff’s litigation against the Association may establish his purpose to examine the itemized bills was contrary to its interests, a hearing is required where the parties’ competing interests may be balanced. As a result, the affidavits established a genuine issue of material fact as to whether plaintiff had a proper purpose to examine the itemized bills for legal services.

Therefore, the entry of summary judgment in the Association’s favor on count V of plaintiff’s complaint must be reversed and remanded.

Plaintiff also argues that the trial judge erred when he found that the Association did not violate section 19 when it required him to receive the records from the doorman. However, plaintiff did not allege this violation of section 19 in count V of his complaint, which is the only count relevant on appeal. This issue developed in the parties’ affidavits in support of and in opposition to their motions for summary judgment; however, it was not based on the pleadings. As a result, it will not be addressed on appeal.

Reversed and remanded.

GORDON and McNULTY, JJ., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JUAN SOLIS, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 90—1436
    Opinion filed October 24, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People-.
    James O. Stola and Alan Osheff, both of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant Juan Solis (defendant) was charged by indictment with multiple counts of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)) and driving under the influence of alcohol causing an accident that resulted in great bodily harm to another. (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501(a)(1), (a)(2).) Defendant made a pretrial motion to suppress the admission of blood-alcohol analysis results at his forthcoming trial on these charges. The trial court allowed defendant’s motion to suppress, finding that the statute permitting admission of blood-alcohol analysis results (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501.4) conflicted with Illinois Supreme Court Rule 236, which prohibits admission of medical records under the business records exception to the hearsay rule (134 Ill. 2d R. 236). The State appeals from the trial court’s allowance of defendant’s motion to suppress. (134 Ill. 2d R. 604(a)(1).) We conclude that there is no conflict between the statute and the Illinois Supreme Court rule. We, therefore, reverse and remand.

Defendant was indicted for allegedly causing an accident on September 4, 1987, while he was driving under the influence of alcohol, resulting in the death of one person and great bodily harm to four other individuals. The State indicated in pretrial discovery that it would seek to introduce into evidence a blood-alcohol test performed upon defendant at a local hospital shortly after the accident. This blood-alcohol test revealed that the alcohol concentration level in defendant’s blood was 0.163.

Although admission of a blood-alcohol test result is permitted under section 11 — 501.4 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.4), the trial court ruled that the blood-alcohol test result was inadmissible because section 11 — 501.4 is in direct conflict with Illinois Supreme Court Rule 236, which prohibits the admission of medical records under the business records exception to the hearsay rule. (134 Ill. 2d R. 236.) The State appeals from the trial court’s ruling.

Section 11 — 501.4 of the Illinois Vehicle Code provides that “written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11 — 501 *** or [in] a similar provision of a local ordinance, or in prosecutions for reckless homicide.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.4.) The section further states that admission of the test result is appropriate only when certain enumerated criteria are met:

“(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.” Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.4(a).

Illinois Supreme Court Rule 236 states in pertinent part that “[although medical records or police accident reports may otherwise be admissible in evidence under the law, *** this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.” 134 Ill. 2d R. 236(b).

We find no conflict between section 11 — 501.4 of the Vehicle Code and Supreme Court Rule 236. As the court recently observed in People v. Hoke (1991), 213 Ill. App. 3d 263, 571 N.E.2d 1143, “careful reading of these two provisions reveals th[e] claimed conflict to be illusory.” (213 Ill. App. 3d at 269.) Section 11 — 501.4 permits admission of blood-alcohol test results only under the “very limited circumstances” (emphasis in original) (213 Ill. App. 3d at 269) enumerated in subsections (1), (2), and (3) of the statute. (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501.4(a)(1), (a)(2), (a)(3).) These limitations placed upon admissibility by section 11 — 501.4 “were designed to insure that the written results of these blood-alcohol tests would be trustworthy and reliable *** by requiring the timely involvement of the physician actually treating the person whose blood test results are at issue.” (213 Ill. App. 3d at 269-70.) In addition, the admissibility allowed in section 11 — 501.4 is limited to prosecutions for reckless homicide or driving while under the influence. (213 Ill. App. 3d at 270.) We agree with the court’s observation in Hoke that

“admissibility under section 11 — 501.4 of the Code of such blood-alcohol tests as a business record exception to the hearsay rule occurs only after the other statutory prerequisites have been met. Accordingly, section 11 — 501.4 is not in conflict with Supreme Court Rule 236 because section 11 — 501.4 imposes requirements for admissibility unrelated to a document’s admissibility under the business record exception to the hearsay rule, which is all that Supreme Court Rule 236 addresses.” (Emphasis in original.) (213 Ill. App. 3d at 270.)

In light of these considerations, we conclude, as did the court in Hoke, that section 11 — 501.4 of the Code and Supreme Court Rule 236 are not “in conflict at all.” 213 Ill. App. 3d at 271; see also People v. Lendabarker (1991), 215 Ill. App. 3d 540, 575 N.E.2d 568.

For the reasons stated, we reverse the trial court’s allowance of defendant’s motion to suppress the results of the blood-alcohol test at defendant’s trial for reckless homicide and driving while under the influence, and remand the matter for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN A. JUDGE III, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—2001
    Opinion filed October 24, 1991.

      Josette Skelnik, of Robinson & Skelnik, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Judith Hannah, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a bench trial, defendant, Warren Judge III, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(b)(l)) and sentenced to 10 years’ imprisonment. On appeal, he contends that he was not proved guilty beyond a reasonable doubt and was denied a fair trial by the prosecutor’s introduction of improper evidence at trial and improper closing argument.

We reverse.

Complainant, who was seven years old at trial, testified on direct examination that defendant was living in her family’s trailer home during the date the alleged incident occurred. She further testified that on April 4, 1988, at approximately 5 a.m., she and her younger sister were on the living room couch watching cartoons on television. Complainant testified that defendant “dragged Pier] from the couch across the floor and into his bedroom.” She further testified that defendant threw her on his bed where he “touched Pier] private parts, and rubbed Pier] vagina.” Complainant also indicated to the court on an anatomically correct doll where defendant touched her vaginal area. She further testified that defendant had touched and hurt her on four or five previous occasions when she was in kindergarten.

On cross-examination, complainant testified that her father was asleep in his bedroom and that her mother was out delivering newspapers during the time this incident occurred. Complainant said her sister was sitting on the couch watching cartoons, but did not see her being dragged by defendant. Complainant also said that when defendant touched her with his finger she felt pain but did not scream or yell because defendant threatened to kill her entire family except her. Complainant further testified that she had a red rash around her vaginal area prior to the alleged incident with defendant and would often apply an ointment in and around her vagina. She stated that she felt pain when she applied ointment to her vaginal area.

Dr. Andreas Seidler testified on direct examination that he met complainant and her mother in the emergency room of a local hospital. He said that he had asked complainant what happened and complainant said that she had been touched in her private parts with an index finger by defendant. He further testified that upon his physical examination he observed a redness around the vaginal orifice, which he considered an “abnormal condition.” According to the physician, “there was no vaginal discharge, nor did there appear to be any trauma in the orifice to the vagina.” He then stated that after examining complainant he had the impression of “alleged sexual abuse.”

Upon cross-examination, Dr. Seidler testified that he was not informed during the examination that complainant had a rash in her genital area and had applied ointment to the area herself prior to the alleged sexual abuse. Upon further questioning, Dr. Seidler said that depending on the ointment used, it was not only possible, but even probable, that the application of a particular ointment could have caused the degree of redness as well. The physician stated that the abnormal condition he observed could have also been caused by a little girl inserting her own index finger. Dr. Seidler testified that he had not noticed any bruises on complainant’s arms or wrists. He also said that he had not seen “any abrasions or any trauma that had broken the skin.” On further redirect examination, Dr. Seidler stated that his knowledge of the application of specific ointments would not have changed his impression of sexual abuse.

Complainant’s mother testified on direct examination that defendant moved into their trailer home to solve mutual financial problems. She stated that on April 5, 1987, she questioned complainant regarding any possible sexual misconduct toward her by defendant. She also stated that complainant told her that defendant touched her private parts and put his finger inside her. Upon cross-examination, complainant’s mother testified that she asked complainant twice whether defendant had improperly touched her before complainant answered in the affirmative. She also stated that complainant did not seem upset on the morning of the alleged incident. The witness further testified that her daughter had experienced a sporadic rash ever since infancy and that complainant applied ointment to the area more often when defendant lived in their home. The witness also stated that she did not watch her daughter apply the ointment nor did she inspect complainant to determine the condition of the rash. Upon further cross-examination, the witness stated that she herself had been sexually abused as a young child. In addition, the parties stipulated that complainant’s mother had occasion to make a report on another person’s child as being the victim of sexual abuse. The man accused in that incident was cleared of all charges.

Defendant testified on direct examination that he rented a room from complainant’s family. He stated that on the evening before the alleged incident occurred he went to the home of his girl friend (Doreen Girts) and stayed until approximately 1:30 a.m. He returned home at about 2 a.m. where he prepared for bed and went to sleep. He stated that he woke up at 10:30 a.m. and went to work with complainant’s father. When he returned home, he was taken into custody by the police and questioned at the police station. He was then released and returned to the trailer home, where he spent the night. He stated that he stayed with his mother the following day. Defendant also testified that he never touched complainant’s private parts.

Upon cross-examination, the prosecutor elicited from defendant the fact that, as the oldest boy in a family of two brothers and six sisters, he “grew up with younger girls around the house all the time.” He asked defendant whether any of the foster children his mother took into his home were girls who were younger than he, to which defendant answered in the affirmative. The prosecutor then questioned defendant regarding whether he had sexual relations with his girl friend (Doreen Girts) when she was 15 years old. He also asked defendant if he had ever seen Doreen Girts in a bathing suit when she was 12 years old and had told his co-workers that he was excited by her. The prosecutor also asked defendant if throughout his life he had an attraction to younger girls or had been sexually interested in them. Finally, the prosecutor asked defendant if he had ever discussed sexually explicit matters with children and asked him if he was able to identify in court a young girl to whom defendant had made sexually explicit remarks. To each of these questions, defendant answered in the negative.

Eugene Stack, a police officer for the City of West Chicago, testified on behalf of defendant, whom he had known for some years. He stated that defendant had a spotless reputation for decency and morality. Upon cross-examination, Officer Stack stated that defendant had expressed an interest in becoming a police officer, and that he thought defendant would be a good one. He also said that it was his impression that defendant would have been interested in juveniles because of his background, which included living with foster children. The prosecutor asked Officer Stack whether girls younger than 13 years of age had been placed in the Judge home as foster children.

Barry Skinner was called next as a witness on behalf of defendant. On direct examination, Mr. Skinner testified that he too had known defendant for many years and that his sister had been a foster child in the home of defendant’s mother when she was 14 years of age. He said that defendant helped him coach youth football for one year and also supervised camp-outs for youngsters who were six to nine years old. Skinner further stated that defendant was “highly reputable, honest and Christian,” and that “he was a decent person, a law-abiding person.”

Doreen Girts testified that she had known defendant since she was 14 years old and that defendant had never seen her in a bathing suit when she was 12 years old. She said that defendant had asked permission to date her from her mother. Ms. Girts said that defendant had left her home at about 1 a.m. on the date of the alleged incident. Upon cross-examination, Ms. Girts said that she had discussed marriage with defendant when she was 16 years old, and that complainant’s mother had told her to stay away from defendant.

The State called Denice Angel, the girl who had been presented to defendant in the courtroom for identification, as a rebuttal witness. Ms. Angel, who was 13 years old at the time of trial, testified that she knew defendant because she baby-sat for complainant’s family. The witness stated that when she was 12 years of age defendant asked her “how far [she] went with a guy, if [she] kissed him and if a guy ever felt [her] up.” She also stated that defendant had told her that “he wanted to lay down and sleep with [her]” and that he was serious about this question. Ms. Angel further testified that defendant told her that “he wanted [her],” but that he did not touch her or her girl friend, who was present during this conversation.

Complainant’s father was then called as a rebuttal witness on behalf of the State. He said that he had attempted to arrange dates for defendant, but defendant had said that most of the girls were too old for him. Upon cross-examination, the witness said that the girls whom he had tried to introduce to defendant were “definitely above the age of sixteen.”

The State then presented its closing argument. The prosecutor stated that complainant’s testimony had been clear and convincing, which is “sufficient to formulate the conviction of guilt according to the reasonable doubt standard.” During his closing argument, the prosecutor made the following comments:

“I find it quite interesting, Judge, that there is a continuous stream of Warren’s involvement with children. I find it quite interesting, Judge, his personal background. That is not presented to the court [sic] any aspersions on Mr. Judge, but it only fills in the blanks and the total profile of Warren Judge.
***
Something’s wrong because the man who testifies that he has no interest in children, evidently, in this case has been shown to have a consistent interest in young children. And to put himself in positions with young children where they’re accessible to him.”

The prosecutor also stated that “a person with no motive at all, a 12-year-old girl gets up on the stand and proves that everything that Warren Judge said to that regard is a lie.” He also stated that there was corroboration of complainant’s testimony by the physician testifying in this case.

The trial court ruled that complainant’s testimony was “clear and convincing” and that Dr. Seidler’s medical findings and diagnosis of “alleged sexual abuse” corroborated that testimony. At the sentencing hearing on June 9, 1989, defendant received a sentence of 10 years’ imprisonment.

In his post-trial motion, defendant stated that the finding of guilt was not supported by proof beyond a reasonable doubt and was contrary to the weight of the evidence. Defendant also stated that he was denied a fair trial by the State’s repeated, unsupported, and irrelevant innuendos suggesting that he was sexually attracted to young girls. At the July 21, 1989, hearing on defendant’s motion, he argued that the “doctor’s testimony was not clear and convincing” and that the complainant’s testimony had been influenced by having her “repeat the story over and over again” to numerous people. The prosecutor denied making innuendos. According to the prosecutor, defendant’s testimony that he had no interest in or no previous encounters with any young girls was subject to impeachment. The court denied defendant’s post-trial motion.

On appeal, defendant contends that he was denied a fair trial because of the prosecutor’s repeated elicitation of evidence and argument to the court suggesting that defendant had an unnatural and perverted interest in young girls. The State contends that defendant waived objection to the admissibility of trial testimony by failing to object at trial. The State also maintains that assuming, arguendo, that the objection is not waived, the trial court properly admitted evidence and heard argument regarding defendant’s unnatural interest in young girls because it was introduced by defendant.

Generally, an issue which has not been objected to during trial and raised in a post-trial motion is not preserved for appeal unless the issue is plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Defendant contends that this issue should be reviewed under the plain-error doctrine (134 Ill. 2d R. 615(a)). "The purpose of the plain-error doctrine is to correct serious errors which may have denied the accused a fair trial. [Citation.] The doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial.” (People v. Priola (1990), 203 Ill. App. 3d 401, 417.) Because the evidence is closely balanced in this case, we will review the prosecutor’s conduct to determine whether defendant was denied a fair trial.

The State maintains that its cross-examination was proper for the purpose of rebutting evidence as to defendant’s good character. Thus, the State contends, its repeated line of questioning as to whether defendant was brought up with younger girls around him, as to whether his mother took in female foster children who were younger than he, as to how old defendant’s girl friend was when he met her and began dating her, as to whether throughout his life he had been attracted to younger girls or had been sexually interested in them were all proper responses to defendant’s direct testimony.

Contrary to the State’s contention, defendant’s testimony regarding his moral character did not permit the State to introduce evidence or to suggest that defendant had a sexual interest in young girls. “Particular acts of misconduct cannot be shown on cross-examination or in rebuttal, for the reason that it is unfair to force an accused to account for any past misconduct which is unrelated or at most only circumstantially related to the issues at hand.” (People v. Hall (1987), 159 Ill. App. 3d 1021, 1027.) Most disturbing is that the State did not show defendant had a propensity to have improper relationships with young girls nor was it even established as true. We believe the State merely raised unsupported allegations of misconduct so as to substitute insinuation and innuendo for proof. See People v. Littlejohn (1986), 144 Ill. App. 3d 813.

The State’s question as to whether defendant saw his girl friend in a bathing suit when she was 12 years old and was excited by her was not only denied by defendant, but his answer was corroborated by Girts, who testified that she did not even know defendant when she was 12 years old. This line of questioning, which was not supported by the record, served only to raise unfounded allegations of misconduct. In addition, we believe the State’s questions as to whether defendant grew up with younger females in his home and was sexually attracted to them were intended to suggest that defendant was guilty of acts of misconduct with other children. This line of cross-examination was highly prejudicial and irrelevant. Moreover, the allegations were never proved by the State.

The record clearly establishes that the trial judge was influenced by the State’s improper and inflammatory elicitation suggesting that defendant was guilty of similar acts against individuals other than the complainant. Because the probative value of the State’s questioning was so greatly outweighed by its prejudicial effect, we find the State’s conduct resulted in error which denied defendant a fair trial.

Defendant also contends that his conviction for aggravated criminal sexual assault must be reversed because the testimony of complainant was neither clear and convincing nor substantially corroborated by the evidence.

In Illinois, the standard applied in reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) This court has held that the reasonable doubt standard is equally applicable to sex offense cases. (People v. Byrd (1990), 206 Ill. App. 3d 996, 1006; People v. Casiano (1991), 212 Ill. App. 3d 680, 689.) As such, a reviewing court must view the evidence in the light most favorable to the State and must determine whether a rational fact finder could have found the elements of a crime beyond a reasonable doubt. Byrd, 206 Ill. App. 3d at 1006.

Contrary to defendant’s contention, this court no longer requires the State to demonstrate that the victim’s testimony is either clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt in a sex offense case. (Byrd, 206 Ill. App. 3d at 1006, citing People v. James (1990), 200 Ill. App. 3d 380, 394.) Notwithstanding defendant’s contention, however, we find that the evidence in this case was insufficient to sustain his conviction beyond a reasonable doubt.

“[C]ognizant that conflicting testimony is to be resolved by the trier of fact” (People v. Westfield (1990), 207 Ill. App. 3d 772, 777), we do not believe the testimony of the seven-year-old complainant established defendant’s guilt beyond a reasonable doubt. The State’s evidence portrays that defendant was asleep at 2 a.m. when complainant’s mother left the home. He awoke briefly sometime after 5 a.m. to commit the alleged sexual act against complainant, and then was back in bed asleep when complainant’s mother returned home at 6 a.m.

Complainant testified that when defendant woke up at 5 a.m. he dragged her onto the floor from a couch into his room and threw her onto the bed, even though her father was in the trailer home during this time. In addition, this alleged activity did not appear to alarm or disturb her younger sister, who was awake and with complainant at the time. Yet, she made no complaint nor did she scream for assistance. Further, the record reveals that complainant did not seem upset an hour after the alleged sexual abuse occurred and that the original mention of any abuse was made in response to repeated questioning by her mother. Moreover, complainant’s mother and the treating physician testified that they failed to see any noticeable marks or bruises on complainant’s body, despite testimony that she was dragged across the floor and thrown onto defendant’s bed.

Facts in the record also raise doubts as to the motives of complainant's mother. Not only was complainant's mother a victim of sexual abuse when she was a child, but she had previously accused another man of sexually abusing someone else’s child. The man accused of such abuse by complainant’s mother was later cleared of all charges. The fact that complainant would testify with such firmness and conviction, in light of all of the aforementioned considerations, supports defendant’s contention that complainant’s testimony was improperly influenced.

Viewing the record as a whole, we believe complainant’s testimony as to the circumstances surrounding the alleged sexual abuse seriously and substantially detracted from the reasonableness of complainant’s story as a whole. (See People v. Findlay (1988), 177 Ill. App. 3d 903, 912.) We therefore find that complainant’s testimony did not establish defendant’s guilt beyond a reasonable doubt.

Further, we do not believe that complainant’s testimony was corroborated by the physician’s medical testimony. At the time of complainant’s medical examination, the physician was not informed that complainant had a red rash and applied an ointment to her vaginal area prior to the alleged sexual abuse. Complainant testified that she would apply ointment inside her vagina, by putting cream on the tip of her finger and rubbing it around inside and outside her vagina, and that when she did this it would hurt. After learning of the condition, the physician agreed that it was not only possible, but even probable, depending on the ointment used, that complainant could have caused the irritation herself. Most disturbing is the fact that complainant’s mother failed to inform the treating doctor or nurse of complainant’s preexisting condition, thus preventing a complete and accurate diagnosis.

We therefore find that the physician’s medical testimony did not corroborate complainant’s testimony sufficient to find defendant guilty of sexual abuse beyond a reasonable doubt.

Because we find that defendant was denied a fair trial by the prosecutor’s improper remarks and that the evidence did not establish defendant’s guilt beyond a reasonable doubt, we reverse the judgment of the circuit court of Cook County.

Reversed.

LINN and McMORROW, JJ., concur.


text:
      In re MARRIAGE OF MAUREEN RAYFIELD, Petitioner and Counterrespondent-Appellee, and SCOTT A. RAYFIELD, Respondent and Counterpetitioner-Appellant.
    First District (4th Division)
    No. 1 — 90—3241
    Opinion filed October 24, 1991.
    Marshall J. Auerbach and Paul L. Feinstein, both of Marshall J. Auerbach & Associates, Ltd., of Chicago, for appellant.
    Timothy M. Daw and Anita B. Ward, both of Schiller, Du Canto & Fleck, of Chicago (Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Respondent and counterpetitioner Scott Rayfield (Scott) appeals from the trial court’s entry of a preliminary injunction that prohibits him from selling half of an interest in corporate stock pending disposition of the parties’ cross-petitions for dissolution of their marriage, distribution of their marital assets, and related matters. Because we conclude that the trial court’s entry of the preliminary injunction order was in error under the facts of this case, we reverse and remand.

The record reveals the following pertinent facts. Scott and his wife, Maureen, were married in September 1984, and one child was born to the marriage. They filed cross-petitions for dissolution of their marriage in July and September 1990. Thereafter, Maureen filed a motion for a preliminary injunction to prevent Scott from selling a 50% interest in Pioneer Wholesale, Inc. (the Pioneer stock). In an affidavit to support this motion, Maureen stated that she believed Scott intended to sell the Pioneer stock at less than its fair market value.

At a hearing on the preliminary injunction motion, Maureen testified that Scott had informed her that he had an investor who was anxious to buy the Pioneer stock, and that he wanted to sell the stock before Maureen would have an opportunity to value the asset for purposes of the parties’ pending divorce litigation. According to Maureen, Scott told her that he was not going to reveal anything about his business to anyone. He also advised her that he would not sell the Pioneer stock for less than its fair market value.

When asked why she feared that Scott might sell the asset for less than its fair market value, as she had stated in her affidavit, Maureen responded that in the past, she “was never involved in any of the decision-making about where proceeds went to, so that I would not be given information.” Maureen explained that Scott had previously sold stock in another company, Wisconsin Tool and Stamping Company (the Wisconsin Tool stock), but had not told her that he was selling the stock or how he had disposed of the sale proceeds. Maureen also testified that Scott had refused to inform her of the terms of the proposed sale of the Pioneer stock. The record reflects that Maureen had received all temporary maintenance and child support payments due to date from Scott, and she testified that she had approximately $800 in the bank. The remaining marital asset, according to Maureen, was a marital residence valued at approximately $250,000.

Scott testified at the preliminary injunction hearing that he purchased the Pioneer stock for $1,000 in 1988. This purchase money derived from proceeds of the sale of the Wisconsin Tool stock. Scott stated at the time of the preliminary injunction hearing, the book value of the Pioneer stock was approximately $900,000. Scott testified that he would suffer a hardship if the court entered a preliminary injunction preventing him from selling the Pioneer stock. He explained that such a ruling would effectively prohibit him from entering into any business dealings where he could sell the stock. Scott testified that by requiring prior court permission to sell the Pioneer stock, he could lose the buyer, and that any potential buyer would offer a low price if the buyer were aware of court-imposed conditions on the sale of the Pioneer stock.

Scott testified that the Pioneer company was engaged in the business of secondary wholesaling of grocery goods from manufacturers. Scott explained that manufacturers had threatened to use a uniform pricing program throughout the country which could jeopardize the company’s ability to operate. Scott stated that if the uniform pricing program appeared imminent, he would have to sell his stock quickly, and that the preliminary injunction order would prevent such a sale of the stock. Scott testified that he would likely sustain several hundred thousand dollars in damages if the injunction were in place or if he were required to give prior notice of the sale to Maureen or her attorneys.

Scott also testified that he did not make any threats to Maureen to dissipate assets. He testified that he had not told Maureen that he had an investor anxious to purchase the Pioneer stock, but testified that there had been a meeting regarding possibly selling part of the company. Scott stated that he would not sell the Pioneer stock for less than its fair market value, because that would harm him as well as Maureen. He also acknowledged that he had not discussed the sale of the Wisconsin Tool stock with Maureen before the transaction was undertaken or completed.

The trial court noted that Scott’s testimony indicated that “he wants the instant ability to sell stock unfettered by any court restriction.” The court also determined that “even though there has been no testimony or evidence offered that [Scott] has in the past disposed of any asset for less than its fair market value, *** there is testimony that he has taken sale proceeds and used them without the consent or the knowledge of his spouse [Maureen], which is in effect a ‘concealment.’ ” The trial court also took into account “the fact that a sale at less than a fair market value could result in the reduction of the value [in the Pioneer stock] *** asset that the trial judge will have to determine as either marital or non-marital.”

In light of these considerations, the court’s written order found that irreparable injury would occur if Scott were to sell all of the Pioneer stock without Maureen’s prior knowledge or consent, that Maureen had a possible right or interest in the stock which was deserving of protection, that Maureen’s legal remedy would be inadequate if Scott were allowed to sell all of the Pioneer stock absent her prior knowledge or consent, and that the balance of hardships favored Maureen.

On these bases, the trial court entered a preliminary injunction order prohibiting Scott from selling half of the Pioneer stock. With respect to the remaining half of the Pioneer stock, the court directed that if Scott “elects to sell said portion, [he] shall provide to counsel for Maureen Rayfield within ten days of any such transaction the identity of the purchaser or purchasers, the sales price of said portion, the amount of stock sold, the expenses of sale incurred, the net figure received in the distribution, where the funds were deposited, and disposition of the aforesaid proceeds.” The court directed that Scott “shall have the right to dispose of one-half (flz) of his interest in [the Pioneer stock] as he deems appropriate.” The court also noted, however, that “nothing contained in this Order shall prohibit the trier of fact at the trial of this action to deem such a transaction as a dissipation or dissipations.” Scott appeals from the trial court’s preliminary injunction order.

In order to show entitlement to a preliminary injunction, the moving party bears the burden of showing (1) a certain and clearly ascertainable right in need of protection, (2) irreparable injury without injunctive relief, (3) an absence of adequate legal remedies, and (4) a likelihood of success on the merits. The trial court’s decision to issue a preliminary injunction, based upon its assessment of the evidence with respect to these factors, is subject to reversal on appeal if the ruling is an abuse of discretion as against the manifest weight of the evidence. See, e.g., Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 483 N.E.2d 1271; In re Marriage of Weber (1989), 182 Ill. App. 3d 212, 537 N.E.2d 1024; see also Ill. Rev. Stat. 1989, ch. 40, par. 501(a)(2)(i).

The trial court in the instant cause acknowledged that there was no evidence in the record to show that Scott would sell the Pioneer stock at less than its fair market value. Notwithstanding this factual finding, the trial court determined that irreparable injury would occur if Scott were to sell all of the Pioneer stock without Maureen’s prior knowledge or consent, that Maureen’s legal remedy would be inadequate if Scott were allowed to sell all of the Pioneer stock absent her prior knowledge or consent, and that the balance of hardships favored Maureen. In light of these considerations, the trial court determined that Scott should be prohibited from selling half of the Pioneer stock. The court further concluded that Scott should be permitted to sell the remaining half of the Pioneer stock to whomever he chose, but that Scott would be required to account to Maureen regarding the terms and proceeds of such sale.

Based upon our review of the record, we conclude that the trial court’s decision was in error. The court’s perceived threat to Maureen’s potential interest in the Pioneer stock was not that Scott would sell the asset for less than its fair market value, but that Scott would conceal the terms and proceeds of such a sale. This perceived harm to Maureen’s potential interest in the asset was adequately protected by the court’s instructions with respect to half of the Pioneer stock which the court determined Scott should be free to sell, i.e., that Scott give a full accounting to Maureen, within 10 days after sale, of the terms and distribution of proceeds from the sale. We are unable to discern why these same conditions, if applied to the entire interest in the Pioneer stock instead of half of the asset as ordered by the trial court, would have been inadequate to protect Maureen’s potential interests in the Pioneer stock.

Moreover, there is nothing in the record to dispute Scott’s assertion that market conditions might compel that he sell the Pioneer stock in a short period of time. There is also nothing in the record to contradict Scott’s testimony that the failure to move quickly in the sale of the asset could cause the loss of thousands of dollars to the parties. Maureen’s only stated concern was that Scott might conceal the terms and proceeds from the sale, not that his sale thereof would be financially ill-advised.

Maureen contends on appeal that the trial court’s preliminary injunction order was necessary in order to prevent Scott’s possible dissipation of proceeds of the sale of the Pioneer stock. However, the record reflects that Scott has paid temporary maintenance and child support to Maureen, and there is nothing to demonstrate that Scott would dissipate sale proceeds to the detriment of the marital estate. (See In re Marriage of Grauer (1985), 133 Ill. App. 3d 1019, 479 N.E.2d 982; In re Marriage of Schmidt (1983), 118 Ill. App. 3d 467, 455 N.E.2d 123.) In addition, if Scott dissipates the sale proceeds, the trial court is empowered to order that he reimburse Maureen for such dissipation, and/or that Maureen be awarded a greater portion of the marital estate to compensate her for the dissipation. (See Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(1); In re Marriage of Turzitti (1987), 161 Ill. App. 3d 822, 515 N.E.2d 316.) On this record, Maureen’s speculative concern over possible dissipation of proceeds from the sale of Pioneer stock is insufficient ground for the court’s award of the preliminary injunction order entered in the instant cause. See In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 539 N.E.2d 808.

In light of all of these considerations, we reverse the trial court’s preliminary injunction order and remand for further proceedings.

For the reasons stated, the order of the circuit court of Cook County is reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOZSEF FERCSI, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 86—3592
    Opinion filed October 25, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

This case is back before this court on remand from the Illinois Supreme Court. In the first instance, defendant Jozsef Fercsi (Fercsi) appealed his conviction for murder and we reversed (People v. Fercsi (1989), 182 Ill. App. 3d 13, 537 N.E.2d 912), based upon the opinion issued by the Illinois Supreme Court in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The State appealed our decision and the supreme court reversed and issued a mandate that we consider the remaining issue not addressed in the original appeal. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) The one issue presently before this court is whether Fercsi’s 30-year sentence was improper because the trial court considered facts implicit in the offense as an aggravating factor.

The facts of this case were set forth in our first opinion in this matter and in the supreme court opinion. However, we shall reiterate them here.

Fercsi was found guilty by a jury of the September 1985 murder of Tiberiu Paratei (Paratei). The evidence presented at trial indicated that Fercsi, Paratei and Robert Flowers were residents of a rooming house at 1622 West Winnemac in Chicago. On September 21, 1985, Fercsi and Paratei were at Flowers’ apartment drinking throughout the evening. Flowers showed them some photos of his daughter, and Fercsi became offended when Paratei made sexually oriented remarks about her. Fercsi insisted that Paratei apologize to Flowers, which Paratei later did. However, Fercsi and Paratei continued to argue.

Flowers left the room for a few minutes and upon his return he found Paratei’s body lying across the threshold of the room, his feet sticking out into the hallway and his head inside the room. Fercsi was standing over Paratei, wielding a hammer, striking Paratei repeatedly about the head.

Chicago police officer Skwarski testified that on September 21, 1985, he responded to a police call concerning a battery in progress at 1622 West Winnemac. Upon arriving at that location, he proceeded to the second floor and found Fercsi standing over the body of Paratei. Skwarski placed Fercsi under arrest and advised him of his constitutional rights.

Fercsi then told the officer that he and Paratei had been drinking in Flowers’ room, that he had argued with Paratei, and then left Flowers’ room. Paratei came to Fercsi’s room, kicked at the door, and in response Fercsi grabbed a pipe and struck Paratei in the stomach and head. As Paratei staggered back, Fercsi obtained a hammer from a bag of tools in his room, returned to Paratei and struck him several times in the head with the hammer. Fercsi gave similar statements to the investigating detectives and an assistant State’s Attorney. Fercsi also admitted during questioning that he had placed a knife in Paratei’s hand after the incident to bolster his claim that Paratei had been the first aggressor.

The Cook County medical examiner, who performed the autopsy on Paratei, graphically described the injuries which caused Paratei’s death. He testified that there were numerous head and facial lacerations, as well as approximately 20 separate and interlocking skull fractures and severe laceration to the brain itself, indicative of forceful and repeated blunt trauma. He concluded that Paratei died as a result of severe cranial and cerebral injury caused by multiple blunt trauma injury to the head.

The jury was instructed on murder and the unreasonable belief form of voluntary manslaughter and found Fercsi guilty of murder. We reversed the conviction based upon the Reddick decision, which held that the pattern jury instructions for murder and involuntary manslaughter were erroneous when given together. However, the supreme court reversed, finding that the error was harmless beyond a reasonable doubt in this case. The supreme court held that “the evidence in support of the murder conviction is so clear and convincing that the jury’s verdict would not have been different had correct instructions been used.” People v. Shields (1991), 143 Ill. 2d 435, 450.

We now turn our attention to the issue to be addressed in this opinion, i.e., whether the sentence imposed was improper. At sentencing, the State requested an extended term contending that Fercsi’s repeated use of a pipe and a hammer to kill Paratei evidenced “wanton cruelty.” The trial court rejected the request for an extended term, but imposed a 30-year sentence, 10 years above the statutory minimum term for the offense (Ill. Rev. Stat. 1985, ch. 38, par. 1005— 8 — 1(a)), finding the circumstances of the murder to be “brutal.”

Fercsi, a first offender, contends that the sentencing court erred. He argues (1) that the brutality of the incident is not a statutorily authorized consideration when fixing a nonextended term and (2) that the acts which were characterized as brutal evidenced the intent element of the offense, so that they should not have been relied upon as an aggravating factor to increase the severity of the sentence.

Although we agree that the sentence is a severe one, we must affirm it. The imposition of a sentence is a matter of judicial discretion, and absent a clear indication of an abuse of that discretion, the sentence imposed may not be altered. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We find no such abuse of discretion.

In this case the trial court never discussed an extended-term sentence, despite the State’s request that one be imposed. Thus, this case is unlike the Kitten case (People v. Kitten (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789), cited to by Fercsi. In Kitten the trial court bypassed or “short circuited” the sentencing procedure by imposing the maximum nonextended term without considering factors in aggravation and mitigation, merely because it believed it could have sentenced the defendant to an extended term due to the brutal and heinous nature of the offense. Furthermore, the premise in Kitten, that the brutal and heinous nature of the crime may not be considered except when imposing an extended term, has since been repeatedly rejected. See People v. Posedel (1991), 214 Ill. App. 3d 170, 573 N.E.2d 256; People v. Compton (1990), 193 Ill. App. 3d 896, 550 N.E.2d 640; People v. Jorgensen (1989), 182 Ill. App. 3d 335, 538 N.E.2d 758; People v. Butts (1985), 135 Ill. App. 3d 132, 481 N.E.2d 987.

In the case at bar, the record shows that the trial court considered the fact that the offense of murder carries a sentencing range of 20 to 60 years, and that any murder, regardless of its nature and circumstances, would be susceptible to a minimum sentence of 20 years. It then balanced the fact that Fercsi was a first offender with no history of violence or criminal activity against the fact that the murder was a physically brutal one, where the victim was bludgeoned repeatedly on the head with a hammer.

We find no error in the court’s consideration of the nature and circumstances of the offense in fashioning an appropriate sentence within the sentencing range. The fact that Fercsi is a first-time offender is nothing more than one mitigating factor to have been considered along with any other mitigating and aggravating factors that were present. People v. Tatum (1989), 181 Ill. App. 3d 821, 537 N.E.2d 875.

As a general proposition of law, Fercsi is correct in stating that a factor implicit in the offense may not be used as an aggravating factor in sentencing absent a clear legislative intent. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429.) However, that proposition of law is inapplicable in this instance. We are not convinced that the brutal manner in which this offense was committed, although indicative of murderous intent, could not be considered when imposing the sentence. (See People v. Barney (1982), 111 Ill. App. 3d 669, 444 N.E.2d 518.) Although the fact that Fercsi struck his victim in the head with a pipe and a hammer certainly supports a finding that he intended to cause death or serious bodily harm, the unnecessary and excessively violent nature of the acts, i.e., the fact that Fercsi hit Paratei with a pipe and then, while Paratei was incapacitated, procured a hammer and delivered numerous blows to Paratei’s head with it, may also be considered as an aggravating factor.

Accordingly, we affirm the sentence imposed.

Affirmed.

LORENZ, P.J., and McNULTY, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN HIRSCH, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 90—1574
    Opinion filed October 25, 1991.

      George Patrick Lynch, Ltd., and Kielian & Walther, both of Chicago (George P. Lynch and M. Jacqueline Walther, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant, Alan Hirsch, was found guilty of possession of child pornography and was sentenced to one year’s conditional probation terminable upon payment of a $1,000 fine. Defendant appeals, contending that the charging indictment was vague and uncertain; that the court erred in allowing the State to amend the indictment on the morning of trial; that the search warrant failed to state with specificity the items to be seized; that defense counsel was denied the opportunity to present a closing argument; that the indictment as presented to the grand jury was improper; and that the outrageous conduct of government agents which led to his alleged participation in the undercover operation gave rise to a violation of due process.

Defendant, age 45, has been employed as a senior technician consultant for Amoco Oil Company since 1973. He has no prior convictions. In 1986, the United States Customs Service conducted an undercover operation in the Chicago area designed to entice individuals previously identified as possessing child pornography to purchase illegal items. Toward this end, the Customs Service set up a fictitious company named “L. Gagnon,” based out of Ontario, Canada. L. Gagnon mailed out advertisements to a limited number of individuals, including defendant, to solicit sales of pictures and books of boys and girls engaged in sex acts.

On July 29, 1986, defendant responded to this advertisement by ordering a set of photographs entitled “Kurt and Andre” described as “Kurt, 11 and Andre 12, teach each other about oral love.” Defendant also ordered 31 volumes of magazines entitled “Superboy,” “Dream-boy,” “Joyboy,” and “Wonderboy” and included a money order for $605 with his order.

In October 1986, the investigating agent, Tom Fischer, sent a sealed package containing the “Kurt and Andre” photographs to Canadian Customs Service. That sealed package was returned to him in the same condition on December 5, 1986. On December 16, 1986, at approximately 7:30 a.m., Fischer, posing as a DHL courier, drove to defendant’s apartment complex. Fischer identified himself as a courier to the security guard, who rang the bell to defendant’s apartment. Defendant came to the lobby, where Fischer was waiting, and signed for the package containing the “Kurt and Andre” photos. Fischer recognized defendant from photographs which matched the person to whom he delivered the package. Fischer contacted Customs Service Special Agent John O’Malley and informed him that a controlled delivery had been made.

Later that day, O’Malley executed an affidavit in support of his search warrant, which stated that the Foreign Mail Facility had cause, during routine examination of parcels travelling in international commerce, to inspect several parcels addressed to defendant at his post office box in Chicago. Specifically, the Customs Service seized five packages addressed to defendant in the previous year from June 24 through July 25, 1985.

Customs Service sent a form letter to defendant concerning two of the seizures, advising him that the importation of these materials was in violation of United States law. Defendant filed a claim in Federal district court in Illinois after civil forfeiture actions were instituted against those two seizures, arguing that the material was not obscene and was intended for his private use. O’Malley further stated that he was advised that defendant’s claims in both instances were denied and that the magazines were found to violate 19 U.S.C. §1305 (1982).

The other three seizures were retained as evidence, and defendant was not notified that they had been seized. According to O’Malley’s affidavit, these seizures also contained magazines which depicted explicit sexual activities between young teen males.

On December 16, 1986, a Federal magistrate executed a search warrant to search defendant’s work office and apartment. During the search of defendant’s apartment, various items were recovered including 230 photographs, 87 magazines, and 20 videotapes. Of those items, 19 photographs and 12 magazines were later admitted into evidence.

On June 1, 1988, almost 18 months after defendant’s apartment was searched, he was arrested and charged with possession of child pornography. Defendant filed a motion to quash the search warrant and to suppress evidence. After considering O’Malley’s affidavit stating that contraband was intercepted en route to defendant’s post office box in 1985, defendant’s claim in district court contesting the forfeiture which was litigated and decided adversely to him, and his placement for an order of child pornography, the trial court denied defendant’s motion.

The trial judge found that defendant responded to the government’s solicitation by ordering child pornography and that the exhibits introduced by the State (which did not include the photos given to defendant during the undercover operation) found in his possession depicted individuals under age 18 engaged in acts of sexual contact in violation of section 11 — 20.1(a)(l)(ii) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 11 — 20.1(a)(l)(ii)).

Defendant first contends that the indictment was vague and uncertain because the original indictment charged defendant with violating sections 11 — 20.1(a)(2)(ii), (a)(2)(vii) (Ill. Rev. Stat. 1985, ch. 38, pars. 11 — 20.1(a)(2)(ii), (a)(2)(vii)), and was subsequently amended on the morning of trial to charge sections 11 — 20.1(a)(l)(ii) and (a)(l)(vii). Defendant argues that he was not adequately apprised of the charges against him, as the indictment did not set forth the elements of the offense with sufficient specificity to apprise him of the precise conduct with which he was charged.

We find this argument to be without merit. The original indictment stated that defendant:

“with knowledge of the nature and contents thereof, possessed photos of a child *** under 18 years of age *** engaged actually or simulation in any act of sexual contact involving the sex organ of another person, or which involved the mouth, anus or sex organs of the child and the sex organ of another person.” (Emphasis added.)

The second count of the indictment charges that defendant:

“possessed photos of a child *** under 18 years of age *** which depicted and portrayed in poses, postures, and settings involving lewd exhibition of the genitals of a child.” (Emphasis added.)

Defendant argues that because the counts in the indictment give rise to a number of possible permutations, the State must explicitly define the details of the photographs constituting child pornography it expects to introduce at trial.

We find that a fair reading of the plain language of the indictment indicates that defendant was adequately informed of the nature of the charges against him sufficient to formulate his defense. Section 111— 3 of the Code of Criminal Procedure of 1963 provides that a charging instrument must set forth “the nature and elements of the offense charged.” (Ill. Rev. Stat. 1985, ch. 38, par. lll-3(a)(3).) The sufficiency of an indictment is determined not by linguistic technicalities, but by the substance of the charge. People v. Locascio (1985), 137 Ill. App. 3d 201, 484 N.E.2d 451.

The indictment fairly apprised defendant of the charges against him, and it was not necessary for the State to identify in minute detail the subject matter of each individual photograph or magazine expected to be introduced at trial.

Similarly, defendant’s contention that the amendment to the indictment made on the morning of trial constitutes a material change fares no better. As previously discussed, review of the record indicates that the indictment originally charged defendant with violating sections 11 — 20.1(a)(2)(ii) and (a)(2)(vii) of the Code (Ill. Rev. Stat. 1985, ch. 38, pars. 11 — 20.1(a)(2)(ii), (a)(2)(vii)); however, those subsections do not exist under the statute cited. As noted by the trial judge, the amendment did not change the substance of the charge; rather, the section number was amended to conform with the pleadings. Formal defects in a charging document may be amended at any time if the change is not material or does not alter the nature and elements of the offense charged. (See Ill. Rev. Stat. 1985, ch. 38, par. 111 — 5; People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214; People v. Troutt (1977), 51 Ill. App. 3d 656, 661, 366 N.E.2d 370.) Moreover, it does not appear that defendant was unduly prejudiced by the amendment on the morning of trial, as the section originally cited makes explicit reference to the subsections set forth in the amended indictment.

Defendant next asserts that the items seized during the search of defendant’s home should have been suppressed because of the lack of particularity of the search warrant. The warrant authorized the seizure of the following items:

“One (1) photo set entitled ‘Kurt and Andre’ and books, magazines, photographs, photocopies, negatives, films and video cassettes depicting minors engaged in sexually explicit conduct *** still cameras, audio and video cassette recorders, audio stereo sound playing, dubbing and recording material and devices, envelopes, letters and other correspondence regarding children, books, documents, and records reflecting the making, receipt or acknowledgement of orders to purchase or offers to sell or trade depictions of minors, address books, mailing lists, supplier lists, *** and all documents or records pertaining to the preparation, purchase or acquisition of customer or correspondents’ names or lists, used in connection with the purchase, sale, or trade of sexually explicit depictions of minors.” (Emphasis added.)

Defendant argues that this warrant resulted in a “general exploratory rummaging” by the officers, in which children’s records, court documents, documents relating to organizations of which defendant was a member, personal diaries, address books, checking and bank records, as well as various magazines, video tapes, and film, were seized. At trial, the court found that the good-faith exception was applicable, and that although material was seized that was not contraband or even remotely related to the issue of child pornography, it did not constitute sufficient grounds to quash the search warrant.

We note that the search warrant was predicated upon recovering articles pertaining to child pornography, which clearly lies beyond the scope of first amendment protection. (People v. Weber (1990), 208 Ill. App. 3d 509, 567 N.E.2d 413.) Further, we find that the trial court properly applied the good-faith exception to the plethora of items inadvertently confiscated by the agents during the search of defendant’s apartment, which of course, were never introduced at trial. An agent’s reasonable and good-faith belief, although a mistaken one, that the searches were authorized under the warrants insulates the searches from a motion to suppress. (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227, citing United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405.) Further, the improper seizure of items not "within the purview of the warrant does not invalidate seizure of items for which no complaint of lack of specificity of description had been advanced. People v. Fragoso (1979), 68 Ill. App. 3d 428, 386 N.E.2d 409.

Defendant also maintains that his conviction should be reversed due to the failure of the trial court to afford him the opportunity to present a closing argument. Defendant correctly cites People v. Moczarney (1978), 65 Ill. App. 3d 410, 382 N.E.2d 544, for the proposition that failure to seek a closing argument will result in waiver, which is precisely what occurred in this instance. Review of the record reveals that defendant made no attempt to present a closing argument and is therefore deemed to have waived this right for purposes of review. The record also shows that when the trial judge questioned this issue at the hearings on defendant’s post-trial motion, defense counsel did not indicate that he had ever requested closing argument; rather, he stated that the proceedings “just moved right along.” Defendant was not deprived of the right to present closing argument.

Defendant further argues that the indictment should have been dismissed because the presentation to the grand jury consisted solely of an officer’s monosyllabic answers to the prosecutor’s leading questions, and the alleged pornographic materials were never displayed to the grand jurors.

In Illinois, there is a presumption that an indictment returned by a legally constituted grand jury is valid, and it is sufficient to justify a trial of the charge on the merits. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) Ordinarily, the trial court does not consider grand jury proceedings or the evidence there presented, but may do so for limited purposes where a defendant has alleged there was no evidence presented to the grand jury connecting him to the offense for which an indictment was returned. People v. Lightner (1986), 145 Ill. App. 3d 741, 496 N.E.2d 269, citing People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240.

In this case, sufficient evidence was presented to the grand jury to support the indictment. The State presented the testimony of Robert Thomas, an Illinois State Police officer assigned to the child exploitation unit, who participated in the investigation of defendant’s apartment on December 16, 1988. At the grand jury proceeding, Thomas testified affirmatively that defendant possessed photos of children under the age of 18 engaged in acts of sexual contact. Defendant cites no case law, nor are we aware of any requirement that testimony before a grand jury cannot consist of monosyllabic responses, or that the physical evidence consisting of the child pornography seized from defendant’s apartment need be presented to the grand jurors.

Defendant finally asserts that the conduct of law enforcement officials in this undercover operation, in which defendant was sent an advertisement to induce him to purchase items that were in contravention of the law and to bring about his arrest, constitutes outrageous governmental conduct thus depriving him of due process.

The defense of outrageous governmental conduct is premised upon the notion that the due process clause imposes limits upon how far the government can go in detecting crime regardless of the character of the target. (United States v. Thoma (7th Cir. 1984), 726 F.2d 1191.) Because the government may go a long way in concert with the investigated person without violating due process, the level of outrageousness needed to prove a due process violation “is quite high.” Indeed, the government’s behavior must shock the conscience of the court. United States v. Jacobson (8th Cir. 1990), 916 F.2d 467, 469, citing Gunderson v. Schlueter (8th Cir. 1990), 904 F.2d 407, 410-11.

In United States v. Jacobson, a factually similar case, the defendant’s name was discovered on a pornographer’s mailing list. The government mailed defendant two sexual attitude surveys, seven letters measuring his appetite for child pornography, and two sex catalogues over a period of 29 months. Jacobson responded with interest on eight occasions, and finally ordered obscene magazines and photographs depicting “young boys in sex action fun.” Jacobson was found guilty, but his conviction was overturned by the Eighth Circuit Court of Appeals, with one justice dissenting. (United States v. Jacobson (8th Cir. 1990), 893 F.2d 999 (Fagg, J., dissenting).) In that decision, the majority concluded that prior to instituting an undercover operation aimed at Jacobson, the government had no evidence giving rise to a reasonable suspicion that Jacobson had committed a similar crime in the past, or was likely to commit such a crime in the future.

Upon reversal (899 F.2d 1549), and granting of petition for rehearing and suggestion for rehearing en banc, the Court of Appeals reversed the panel decision ((8th Cir. 1990), 916 F.2d 467 (Lay, C.J., dissenting, joined by Heaney, J.)). The en banc court affirmed Jacobson’s trial court conviction, holding that the postal inspectors did not apply extraordinary pressure on Jacobson; rather, they merely invited him to purchase pornographic materials through the mail. Moreover, the court found that Jacobson could have easily ignored the contents of the mailings if he was uninterested in them, and that the government’s investigatory conduct did not rise to the level of outrageous governmental conduct. See also United States v. Kaminski (7th Cir. 1983), 703 F.2d 1004 (the offer of reasonable inducements is a proper means of investigation).

This court recently addressed the issue of outrageous governmental conduct in the context of child pornography in People v. Ewen (1990), 194 Ill. App. 3d 404, 551 N.E.2d 426. In that case, the defendant, about 10 years before his arrest, had placed an advertisement in a California publication requesting nude photos of little children in “bold, revealing poses.” The Illinois Department of State Police was informed about defendant’s advertisement, whereupon two undercover letters were written to defendant under a fictitious name which included an order form for photographs of boys and girls in sex action. Defendant took the letters to the local police department, asking that it take appropriate action. Two detectives were sent to defendant’s home to discuss his complaint, at which time one of the detectives produced a copy of the advertisement he had placed many years before in the California publication. A subsequent search of defendant’s home uncovered magazines and photographs depicting child pornography. Defendant was convicted of possession of child pornography, and on appeal, this court held that the participation and conduct of governmental agents were not outrageous.

We find the conduct of governmental agents in this undercover operation not to be outrageous, because reasonable suspicion existed to support the belief that defendant was predisposed to possess child pornography. Prior to the undercover operation, Customs Service had seized five parcels through international mails addressed to defendant’s post office box. Defendant was advised that two of the seizures contained materials in violation of United States law; indeed, defendant even filed claims after civil forfeiture actions were instituted to recover those materials.

Approximately one year after the five seizures occurred, the Customs Service sent its only advertisement to defendant. He promptly responded by ordering a photo set entitled “Kurt, 11 and Andre 12, teach each other about oral love,” which clearly contained child pornography. In addition, defendant ordered 31 other volumes of child pornography at a total cost of $605, thereby further evincing his intent to possess child pornography.

“In seeking to detect and punish crime, law enforcement agencies frequently are required to resort to tactics which might be highly offensive in other contexts. Granting that a person is predisposed to commit an offense, we think that it may be safely said that investigative officers and agents may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process or evoke the exercise by the courts of their supervisory powers so as to deny to the officers the fruits of their misconduct.” United States v. Kaminski, 705 F.2d at 1009, citing United States v. Quinn (8th Cir. 1976), 543 F.2d 640.

We conclude, therefore, that the government’s actions in sending defendant the advertisement for child pornographic materials after his demonstrated predisposition does not rise to the level of truly outrageous conduct.

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

Judgment affirmed.

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